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Australian Industrial Relations Commission Transcripts |
AUSCRIPT PTY LTD
ABN 76 082 664 220
Level 7, ANZ House 13 Grenfell St ADELAIDE SA 5000
Tel:(08)8211 9077 Fax:(08)8231 6194
TRANSCRIPT OF PROCEEDINGS
AUSTRALIAN INDUSTRIAL
RELATIONS COMMISSION
COMMISSIONER DANGERFIELD
C2003/384
APPLICATION TO STOP OR PREVENT
INDUSTRIAL ACTION
Application under section 127(2) by WMC Olympic
Dam Corporation Pty Limited for an order to stop
or prevent industrial action by the Australian
Manufacturing Workers Union, the Construction, Forestry,
Mining and Energy Union, their officials, organisers,
delegates and members and named individuals in
respect of WMC Olympic Dam Corporation Pty Limited's
site at Olympic Dam
ADELAIDE
2.49 PM, WEDNESDAY, 12 FEBRUARY 2003
Continued from 1.2.03
PN1
THE COMMISSIONER: Now, this matter has been relisted as a matter of urgency by the applicant and appearances are slightly different, are they, for the applicant?
PN2
MR A. SHORT: Yes, I appear for the applicant, together with MR CHRIS MITCHELL.
PN3
THE COMMISSIONER: Mr Mitchell, and I see there's no Mr Dolphin here but, gentlemen, we have got - Mr Watson, you are for the AMWU.
PN4
MR J. WATSON: Correct, Commissioner.
PN5
THE COMMISSIONER: And Mr Roberts.
PN6
MR ROBERTS: Yes.
PN7
THE COMMISSIONER: And Mr O'Malley for the CFMEU.
PN8
MR M. O'MALLEY: Yes.
PN9
MR WATSON: Commissioner, I just have a couple of matters that we might address prior to any commencement.
PN10
THE COMMISSIONER: Certainly, yes.
PN11
MR WATSON: The listing - I appreciate that it is a relisting - I read in the cause list included a number of individuals. I was led to believe from the very first time we came before you, by telephone hook-up, that the Commission was advised that the applicant was not to proceed or not going to proceed in relation to the list of individuals. I just need to seek clarification for that first, Commissioner.
PN12
THE COMMISSIONER: Yes, I understand that is the case, Mr Short.
PN13
MR SHORT: Yes, we are not responsible for the listing. I indicated when the matter first came on that we were not on that occasion seeking orders, on that date, against named individuals and I am happy to say that we are not today seeking orders against those individual workers who were named in the application. I have provided to the Commission today and to my friends the terms of a proposed order that details the orders that we seek from the Commission.
PN14
THE COMMISSIONER: The Commission takes responsibility for the listing, Mr Watson, and that is something that was obviously overlooked, but that is clarified.
PN15
MR WATSON: That is fine. Obviously my concern was to get the clarification in the interest of those individuals that were formally listed. The second matter is, with respect to the Commission and Mr Short, I think Mr Short is seeking leave to appear and I would inquire to that regard because we will likely put an objection to Mr Short's appearance.
PN16
MR SHORT: Well, all I can say pretty quickly is it is a bit late for that. I appeared in this matter, of course, on 31 January and I appeared again on Saturday, 1 February. The matter is continuing and I continue my appearance. But if there is an objection to that then I will seek leave - Commissioner, do you require me to give any explanation having regard to your knowledge of the matter?
PN17
THE COMMISSIONER: Well, perhaps for the benefit of the parties you might, Mr Short.
PN18
MR SHORT: Yes. In terms of section 42, Commissioner, I formally seek leave. Special circumstances that would be relevant would be the fact that I have appeared twice in this matter without objection and I have attended today to find for the first time that an objection is raised. Obviously the applicant has prepared and handled this matter on the basis that I would continue my appearance. We would not be able to arrange alternative representation at this time.
PN19
Further, having regard to the subject matter of the application, being a section 127 application, the seriousness of the matters that are raised and the potential complexities of the section 127 application, we would submit it would be an appropriate matter for leave to be granted. Commissioner, do you require anything further?
PN20
THE COMMISSIONER: No. Mr Watson, do you maintain your objection?
PN21
MR WATSON: Yes, I do, Commissioner. I would like to speak to that objection.
PN22
THE COMMISSIONER: Yes.
PN23
MR WATSON: The objection is on the basis firstly that the alleged appearance by Mr Short or the alleged lack of objection by the unions in relation to the previous times we have been before this Commission is that the appearances before this Commission were informal conferences in nature and not on record and we interpreted that as the matter had not commenced its proceedings other than a conference of the parties and a fact finding mission.
PN24
MR SHORT: Well, that is just wrong. It was our application through all this. How the Commission lists it is up to it.
PN25
THE COMMISSIONER: Yes. Mr Watson.
PN26
MR SHORT: Sir, just one other matter, and that is that one of the unions has itself been represented without objection on our part by legal counsel.
PN27
THE COMMISSIONER: Yes.
PN28
MR SHORT: Secondly, Commissioner, that present within the Commission is Mr Chris Mitchell, who we understand to be the corporate or national human resources manager of some standing and of some years of experience and therefore capability, Mr Mark Nelson, who is the manager of human resources based at Olympic Dam who has an intimate knowledge of the situation at Olympic Dam and has some years standing and some experience and therefore capability. Present in the room at this time is Mr Clive Starr, who is an employer advocate and is more than capable of assisting and/or representing the other party, the WMC Olympic Dam Corporation.
PN29
Commissioner, further, we don't believe there are any special circumstances that exist at this point in time that warrant counsel appearing. However, in the event that the Commission is of the view that legal argument - and I would suggest that Mr Short may be foreshadowing that with the complexities he referred to of section 127 - is likely to be a requirement in order to complete the hearing sufficiently for a determination and grants leave to Mr Short, then the unions reserve their right to have the matter adjourned at an appropriate time to consider the reinvolvement or the involvement of legal counsel to argue those legal matters.
PN30
THE COMMISSIONER: Mr Watson, what I would say is this matter was actually formally listed on Saturday, 1 February as I recall it. It was actually formally listed and was brought on for the first time. Now, admittedly, because of the arrangements or lack of arrangements, as it turned out on that Saturday morning we were unable to go onto the record but it was a formal listing on that occasion and both Mr Short appeared for the applicant and Mr Dolphin for, as I recall it, both union parties I think at that time.
PN31
MR WATSON: It was actually neither union party. Mr Dolphin was simply assisting the parties with advice; he was not representing - Mr O'Malley made reference to represent the CFMEU and I made reference to represent the AMWU and with Mr O'Malley was Mr Dolphin. But in any event, we would have objected on the Saturday morning had we had a formal hearing.
PN32
THE COMMISSIONER: Well, in any event, I think the matter was formally brought on and there was no objection to Mr Short's appearance on that occasion. The second thing I would say is that all section 127 matters do involve - or it depends how you define it - legal argument to some extent. I mean, a number of things have to be established under section 127 for any order to issue as the applicant seeks in this matter. So, it depends how you define legal argument but I mean - Mr Short, what are you intending to put to the Commission this afternoon?
PN33
MR SHORT: I'm intending to put such arguments as will convince you that we are entitled to an order, which is what I was seeking to put to you on Saturday, 1 February, but we weren't able to.
PN34
THE COMMISSIONER: Yes.
PN35
MR SHORT: And also on Friday, 31 January when, as far as I'm aware, this matter was on our application and how the Commission listed it was up to the Commission, but I was there seeking orders.
PN36
THE COMMISSIONER: I'm not quite sure how to actually describe the proceedings on 31 January. They were somewhat agricultural, I suppose we could say. I take on board what you have said, Mr Watson, but really I think in this instance under section 42 I am prepared to grant leave for Mr Short to represent the company.
PN37
MR WATSON: Then we reserve our right, Commissioner, in relation to that matter. One final matter is Mr Starr is present and, as I understand it, on the telephone hook-up. At the agricultural ..... that we had on 31 January we objected to Mr Starr because we understood Mr Short indicated Mr Starr was going to be a witness to give evidence in the matter. As a consequence of that we objected to his presence in the room. We restate that objection.
PN38
THE COMMISSIONER: Is Mr Starr to give evidence, Mr Short?
PN39
MR SHORT: Mr Starr and Mr Nelson are to give evidence and if you would prefer them to sit outside until they give their evidence, so be it.
PN40
THE COMMISSIONER: They should do that, yes.
PN41
MR SHORT: Now, Commissioner, you have before you the application and you have the revised order that we seek, I trust.
PN42
THE COMMISSIONER: Yes.
PN43
MR SHORT: By way of opening, it will be our contention that the applicant is a party affected by industrial action in terms of section 127 (1) and (2). The evidence you will hear will satisfy you that the action relates to industrial disputation. It follows negotiation of an enterprise agreement and work regulated by certified agreements. The nature of the work and the effect on the applicant is outlined in the application.
PN44
By way of background, Commissioner, the two unions were involved in unauthorised stoppages on 21 and 22 November 2002 which related to claims for increased pay and improved conditions in respect of the EPE project. That resulted in correspondence between the parties and those claims were not met but those claims have been continued, Commissioner.
PN45
On 27 January of this year some 50 employees of Ron Gee, the contractor working on the site, conducted an unauthorised stop meeting and put demands to their management for improvements in their conditions and pay. Those demands were not met. On Tuesday, 28 January, the AMWU contacted Mark Nelson, an employee of the applicant, and indicated and advised that WMC was in an industrial dispute.
PN46
Over the course of that afternoon, some 200 to 250 employees of various contractors left the site and stopped work. That included employees of Built Environs and Ron Gee subject to the enterprise agreements identified in the application. On Wednesday, 29 January, a number of employees remained off work. Mr Watson gave a radio interview at which he advised that the unions were seeking a site-wide agreement for the project. A stop-work meeting was conducted with Mr Watson, Mr Roberts, the plant union officials. Mr Watson was on behalf of the AMWU, Mr Roberts, the CFMEU.
PN47
The union representatives met with Clive Starr, who is an industrial consultant, advising the project manager, KBR and Mr Starr was advised that the unions were seeking a site-wide contractual agreement. On Thursday, 30 January, the industrial action continued. The AMWU sent notices to a number of contractors, to KBR, to WMC, purporting to initiate a bargaining period. The AMWU has got material up on its website in relation to the industrial action, encouraging all those workers who had withdrawn their labour. On that day there was a fair bit of discussion between Mr Starr and Mr Watson where Mr Starr acknowledged that the unions were proposing a site-wide contractor agreement. The industrial action continued.
PN48
On 31 January, employees continued to be away from work. Pickets were imposed at gate entrances to the Olympic Dam site. Mr Watson and Mr Roberts were actively involved in the conduct of the pickets. Mr Watson advised Mark Nelson that he would withdraw the pickets if discussions took place with KBR. Access to the site was inhibited. People were turned away. Police attended.
PN49
That afternoon, as you recall, Commissioner, there was a hearing with Mr Watson and Mr Roberts in attendance by telephone. Mr Watson again reiterate the pickets would be lifted as soon as the dialogue was agreed to. You issued recommendations. Mark Nelson delivered those to the picket line. The pickets were then withdrawn. On Saturday, 1 February, you recall, Commissioner, that there was a request for undertakings that the unions not take industrial action. Those undertakings were not given.
PN50
A process was set in place in accordance with your recommendation and KBR met with union representatives. Meetings took place on 3 February and 10 February. Those meetings did not result in agreement. Accordingly industrial action now appears probable. Further newsletters have been issued by the unions in relation to disputation at Roxby Downs and in respect of tomorrow the CFMEU, I understand, has served notices asserting a right of entry at 1 o'clock and the AMWU has served notices asserting a right of entry at 1 o'clock in respect of a number of contractors and WMC. Those circumstances, we say, entitle the applicant to the order.
PN51
THE COMMISSIONER: So you are saying that the applicant then is a person who is likely to be directly effected?
PN52
MR SHORT: Yes.
PN53
THE COMMISSIONER: By industrial action as defined?
PN54
MR SHORT: Yes.
PN55
THE COMMISSIONER: And in terms of the 127(1):
PN56
If it appears to the Commission that industrial action was not happening at the moment.
PN57
You are saying it is - you are saying, and you need to establish this, that it is either threatened, impending, or probable?
PN58
MR SHORT: Yes.
PN59
THE COMMISSIONER: In relation to paragraph C:
PN60
Work that is regulated by an award or a certified agreement?
PN61
MR SHORT: And further, it would now appear B has come in today because bargaining notices have been served proposing negotiation of an agreement under division 2 of Part VIB.
PN62
THE COMMISSIONER: And when were those bargaining notices issued?
PN63
MR SHORT: I think 30 and 31 January. Now, I can say to you, Commissioner, that it is my instructions that all contractors working on that site have in term industrial instruments and those audit notices are of no effect. I can also say to you, Commissioner, that no notices with respect to protected action have been served. I can also say to you, Commissioner, that there has been not even a pretence of compliance with any relevant dispute procedure.
PN64
THE COMMISSIONER: All right.
PN65
MR SHORT: So the work which has been undertaken in respect of the extraction plant, is being undertaken by a number of contractors, the project manager is KBR and the beneficiary is WMC. It is will WMCs extraction mine.
PN66
THE COMMISSIONER: Yes, and then of course, you will need to address the issue of the exercise the Commissioner's discretion if you can demonstrate the, what I call the jurisdictional prerequisites.
PN67
MR SHORT: Yes, and in that regard, Commissioner, I remind you of the hearings of 31 January and 1 February, you put in place a circuit breaker, I think is a fair description. Something to enable some discussion to take place. That has not resulted in agreement, the demands have not been withdrawn, the demands have not been met. Industrial action was taken back in November, industrial action was undertaken in January. We say there is a real probability and that it is indeed probable, that further action will be taken if an order is not granted.
PN68
Our concerns in that regard are heightened by the refusal to provide undertakings when they were requested. And because of the serious nature of the harm and the time frames in which it could be instituted, we say we are entitled to the exercise of your discretion and to grant orders. The unions would lose nothing if those orders are granted, the action if taken, would be unlawful. We would lose substantially if the orders are not granted and the action is taken. So there is no harm to unions if you grant the orders, substantial harm to us if you don't and action follows. There is no other satisfactory protection, Commissioner, that we can get.
PN69
THE COMMISSIONER: Very well, you will proceed to evidence?
PN70
PN71
MR SHORT: Mr Nelson, you work at the Olympic Dam site?---I do.
PN72
You are familiar with a project known as Extraction Plant Enhancement Project?---Yes, I am.
PN73
And is work being undertaken by a number of contractors in respect of that project?---There is.
PN74
And who is the manager for that project?---The project is managed by KBR.
PN75
And whose construction - sorry, whose extraction plant is it?---It is WMCs extraction plant.
PN76
And employees of Ron Gee Enterprises and Built Environs Proprietary Limited are engaged in respect of that project, at the site?---They are.
PN77
And there are various other contractors there as well?---There are.
PN78
Presently about what number of contractors are - other employees are working there?---Of employees and contractors, somewhere around the 450 to 500.
PN79
Now, if I can take you back to November last year. I think you are aware that a AMW, MEW newsletter was issued in respect of that project?---I am.
PN80
And that was just available on site?---It became made available on site, yes.
PN81
And unions indicated they were seeking site wide agreement?---That is my understanding, yes.
**** MARK WILLIAM NELSON XN MR SHORT
PN82
THE COMMISSIONER: Well, when you say it is your understanding, how do you mean it is your understanding?---The understanding is from paragraph 3 of the notice.
PN83
MR SHORT: Commissioner, I draw your attention to the reference for seeking to put in place an Olympic Dam Area Agreement.
PN84
THE COMMISSIONER: Thank you, yes.
PN85
MR SHORT: And identifies a number of matters.
PN86
THE COMMISSIONER: Yes.
PN87
MR SHORT: I seek to tender that document.
PN88
THE COMMISSIONER: Any objection?
PN89
PN90
MR SHORT: Now, did officials of the AMWU and CFMEU attend as foreshadowed in the newsletter?---Yes, they did.
PN91
And dealing with 21 November, was there industrial action taken on that day?---Yes, there was.
**** MARK WILLIAM NELSON XN MR SHORT
PN92
What happened?---At approximately 5.45 am in the morning, I received a phone call from - from our security people at the site, advising that there was a picket being established on the southern lease gate access to the mine site.
PN93
And did you attend?---I did.
PN94
And what did you see?---As I approached the site, I observed that there were a number of individuals who had congregated at the entrance to the site. There were a number of flags waving.
PN95
What were the flags?---The flags were a Eureka Stockade flag that I would identify and I also observed a banner which was asserted to be a name "WU Official Picket Line."
PN96
And did you see any union officials?---I saw lots of people that were there, Andrew. At that point in time, I wasn't able to identify any individual union officials.
PN97
And were people seeking access to the site being effected?---People were - people seeking access to the site were being slowed in terms of their access to the site and in fact some halted in terms of the progress. There was in - in fact a significant queue of vehicles attempting to access the site.
PN98
And what happened from there?---As I - as I approached the site, it took me from the time when I - my vehicle caught in the traffic jam, about 20 minutes or thereabouts to progress to the site.
PN99
To the gate?---To the gate. And at the - at the gate, I was greeted by some people were handing out some literature and who were advising that there was to be a union meeting held - I think my recollection was, held that evening.
**** MARK WILLIAM NELSON XN MR SHORT
PN100
Yes, and from there?---And from there, I progressed through onto the site.
PN101
And what was the next development on that day?---On that day, my recollection is that I responded to a phone contact that had been made to WMC. I was provided with an advice that - that Jim Watson, who is the secretary of the AMWU was seeking to have some discussions with WMC and in relation to that I responded that phone message - message, I'm not sure whether it came by phone actually at this stage, in the afternoon of the 21st.
PN102
And did you speak to Mr Watson?---I did do.
PN103
Was that on the phone or?---It was on the phone.
PN104
And what can you tell us about that conversation?---The conversation was a - was an attempt by Mr Watson to enter into some dialogue around some issues that they said they had around the terms and conditions of the contractors working on site.
PN105
Did he identify what the issues were?---Not in any - any detail at all.
PN106
Yes?---No.
PN107
Anything further, go on?---Sorry. I indicated that the matters that Mr Watson appeared to have were not matters between WMC and the unions, that they - the WMC was not the manager of the Extraction Plant Enhancement Project and that in fact, if he - if the unions had issues around terms and conditions they should go and talk to the employers of the employees that were working on the plant. I also indicated to Mr Watson that the actions that the union had taken on that morning, were in my view, unlawful and I attempted to ensure that - that they would not be a repeat of those, of that action.
**** MARK WILLIAM NELSON XN MR SHORT
PN108
Did Mr Watson say anything to that?---Not that I recall specifically. I also indicated to Mr Watson that on the basis of the advice that we had, that they were seeking to have a meeting of their members on our site, that they were not permitted to have a meeting of members on our site. Mr Watson responded to that by saying that he was looking for a natural place for a meeting to occur and my advice to him was that that natural place was in fact not on our site but could be anywhere else, but Mr Watson chose to convene a meeting.
PN109
The picket line on 21 November, about how long was that in place?---My recollections, around an hour and an half or thereabouts.
PN110
Now, I will show you a bundle of correspondence to November and we might work our way through it. First in the bundle, a facsimile, a copy of a facsimile dated 21 November to Darren Roberts of the CFMEU?---Yes.
PN111
And immediately under that, a facsimile in the same terms to Jim Watson of the AMWU?---That is correct.
PN112
And why were those facsimiles sent?---This was to confirm to the unions that they weren't - they had no authority to access our site and - - -
PN113
Why were you writing to Darren Roberts?---I was - I became aware that Darren Roberts was also in attendance on site.
PN114
All right. By the way, Eureka Stockade flags you refer to, are they the same form as the - - -?---In the Southern Cross.
PN115
At the top of the contract, this letter exhibit of WMC1?---In the same form, yes.
**** MARK WILLIAM NELSON XN MR SHORT
PN116
Yes. So you sent those letters at 21 November off. Next in the bundle is a notice to you from Jim Watson of the AMWU?---That is correct.
PN117
Next, is a facsimile to you from Jim Watson dated 22 November attaching an email that apparently was not sent?---My understanding is the email was attempted to be sent but couldn't be sent by the AMWU's email system at the time. So it was followed up with a fax the next morning.
PN118
And did the terms of that email advise you that the AMWU and CFMEU wished to resolve issues relating to wages and conditions for contracted employees?---That's correct.
PN119
So those were the issues - - -?---It appears that they are the issues.
PN120
- - - that they were addressing?---I think the other comment - - -
PN121
And you responded?---The other comment I make is it also referred to a previous agreement that had been in place in working around the expansion on Olympic Dam, EPE.
PN122
So that was a reference to a site agreement on a previous project?---Project - that's correct.
PN123
And the request was that that previous former site agreement formed the basis for a new site agreement?---That's correct.
PN124
And you responded to Mr Watson by facsimile by 2 December?---That's correct.
**** MARK WILLIAM NELSON XN MR SHORT
PN125
Now, in your facsimile of 2 December you raise the topic of recent trespassing on WMC land?---That's correct.
PN126
What can you tell us about that?---On the morning of 22 November at approximately a quarter past 6 in the morning a vehicle drove through the security gate at the southern-west gate of our mine and proceeded to travel towards the site - main site entrance.
PN127
So about how far did the vehicle go on to WMC land?---About 4½ kilometres, is the main road down to - down to the mine site.
PN128
By the way, 6 o'clock in the morning did that have any significance in relation to worker site?---It's a - it's the time of the shift change-overs both from a WMC perspective, in terms of our normal operations, and was also in and around the time that the shift change-overs were taking for workers on the EP project.
PN129
So around 6 to 7 is a busy time for people going in and out of the site?---Very much so.
PN130
So a vehicle drove on to the site?---A vehicle drove on to the site and our understanding is that the people that were in that vehicle then progressed to the main gate and set up what would appear to have been a union site adjacent to our main gate. There were flags hoisted both flags which I would identify as CFMEU flags and AMWU flags.
PN131
Yes?---And at that point in time the - the union - sorry - let me assist us, that I got a phone call at - from - again from our security gate saying that this had occurred. I then attended - I attended the site and went to approach the individuals who had set up the union area adjacent to our main gate.
**** MARK WILLIAM NELSON XN MR SHORT
PN132
By the way, there is no suggestion that these people had any permission to come on to WMC land, is there?---It's very clear from my perspective that they had no permission to be there.
PN133
Now, you referred to WMC instructions to leave, what can you tell us about that?---I approached the union officials that were on our site.
PN134
Who were they?---And they were identified to me as Jim Watson, the Assistant Secretary of the AMWU. Andy Plant, an organiser with AMWU and Darren Roberts from the CFMEU. There was also another CFMEU official as I recall, but I don't recall his name.
PN135
And what did he say?---I asked them to leave.
PN136
And did they?---No, they didn't.
PN137
Did the police attend?---Yes, we requested the police attend the site.
PN138
Did the police ask them to leave?---The police did ask them to leave.
PN139
And did they leave?---No.
PN140
What did they do?---They held what they called meetings with people who were working on the EPE project.
PN141
And did that have the effect that those people, instead of being at work, were at a meeting?---It did have that effect, yes.
**** MARK WILLIAM NELSON XN MR SHORT
PN142
And were you aware of any lawful basis on which that meeting was held?---No.
PN143
Hence your letter of 2 December?---Hence my letter.
PN144
Did you receive any response?---I didn't receive a response, no.
PN145
I seek to tender that correspondence, perhaps it is a bundle, Commissioner, if that is convenient.
PN146
PN147
MR SHORT: The meeting of 22 November 2002, again, was that in relation to improved rates and conditions for contractors on the project?---I can only assume it is. I did not over hear the content of the discussions at the meeting.
PN148
Can I move forward now to January of this year? On 27 January, Monday, 27 January, I think you are aware that a number of employees of Ron Gee Enterprises conducted a stop work meeting?---Yes, I'm aware.
PN149
And that was during work time for a period of some hours?---Yes, I'm not sure how long but some - some period of time during work hours, yes.
PN150
And that some demands were conveyed by them to their management?---That's correct.
**** MARK WILLIAM NELSON XN MR SHORT
PN151
For improved rates and conditions?---That's correct.
PN152
As I understand it, well - sorry. Can you recall now what those demands were?---There were five - five demands. There was a demand for $9 increase in hourly rate. There was a demand for - - -
PN153
THE COMMISSIONER: $9 increase in what, sorry?---In the hourly rate.
PN154
MR SHORT: $9 per hour?---$9 per hour.
PN155
MR O'MALLEY: Mr Commissioner, just on this. Is this evidence you are - as being presented is that your - you have direct knowledge of that, or that was reported to you?---That was reported to me.
PN156
Well, could we have the person who was - it just seems hearsay what - what relevance is that?
PN157
MR SHORT: Commissioner, it is part of the background as to what went on. I'm not attaching great significance to what the demands were in themselves, save that there were demands presented which were improved rates and conditions.
PN158
MR WATSON: Then Commissioner that could come from the bar table if it is only background because it is now in evidence-in-chief. It is inappropriate if it is not evidence.
PN159
MR SHORT: I don't understand that, but I will take it that there is no objection that - - -
**** MARK WILLIAM NELSON XN MR SHORT
PN160
THE COMMISSIONER: For what it is worth you can continue but I take the point that a lot of this would be uncontroversial, I presume.
PN161
MR SHORT: Well, perhaps I will just take it from the bar table and when there's an objection my friends will tell me and see if we can save some time. I'm happy to do that. Commissioner, on 27 January employees of Ron Gee made demands of management for, one, $9 per hour pay increase. Two, stop work when temperate exceeds 40 degrees. Three, redundancy payments. Four, Wednesdays off for personal and banking reasons. Five, payment - - -
PN162
MR ROBERTS: Is that the whole of the day? That was a claim, they wanted all of Wednesday off?
PN163
MR SHORT: That is my understanding but if yours is different then we can look into that.
PN164
MR WATSON: That might be an issue.
PN165
MR ROBERTS: I've never seen it as an issue.
PN166
MR SHORT: Five, time off - I stand corrected, time off in the afternoon on Wednesday for personal and banking reasons and finally, payment for lost time on the Monday, 27 January.
PN167
THE COMMISSIONER: Yes.
PN168
MR SHORT: Sir, Ron Gee management did not agree with those claims. Did not accept them and on Tuesday, 28 January the claims were modified to simply a $5 per hour rate increase which claim still was not accepted by management.
**** MARK WILLIAM NELSON XN MR SHORT
PN169
THE COMMISSIONER: I take it if there is any factual issues with that that you will object, someone will object?
PN170
MR WATSON: Yes.
PN171
MR SHORT: If you are happy I will continue until - - -
PN172
MR WATSON: Yes, continue. Have you got much more?
PN173
MR SHORT: On the basis that these matters are accepted until someone objects and I will then go back to evidence if that is convenient?
PN174
THE COMMISSIONER: Yes.
PN175
MR SHORT: There was no attempt to comply with relevant grievance procedures.
PN176
MR O'MALLEY: Mr Commissioner, I suppose the difficulty we have here is that evidence has actually been presented, or statements. We have no witnesses to actually accept it, or even deny it one way or the other. It is a bit of a difficult situation to be in. WE've got the representative of Western Mining putting forward what he believes happened. We have no opportunity to actually query the people who were accused of asking these questions and we have no person here, besides a witness, who is here at - alternately. Bring forward the people who you say this was given to, then give us the opportunity - it is very hard for us to - it is like suggesting there is a hidden weapon somewhere and if you can't find it that is the proof that it is there.
PN177
THE COMMISSIONER: Mr O'Malley, you would be in a position of being able - I think Mr Roberts was there during that period, wasn't he?
**** MARK WILLIAM NELSON XN MR SHORT
PN178
MR ROBERTS: No, we weren't involved in any of the meetings. All these meetings have been held on site.
PN179
MR O'MALLEY: That is right. This is a - - -
PN180
THE COMMISSIONER: 27, 28 January.
PN181
MR O'MALLEY: - - - meeting of 27 January when Ron Gee employees made a decision to do something. Whether they were members of ours or not, I don't know, we weren't there.
PN182
MR WATSON: Commissioner, the reality is that there was no presence of the union on site on 27 January. So it is a difficult proposition to accept that Mr Short puts to you that there was no attempt by the unions to comply with any dispute resolution procedure, despite the fact if you go to some of the agreements you will find they don't contain one. But irrespective of that the unions were not on site on 27th. In fact, the unions were not anywhere near the site on 28 January.
PN183
THE COMMISSIONER: On 28th as well?
PN184
MR WATSON: Yes, Commissioner.
PN185
MR O'MALLEY: So it is difficult for us to actually object on a factual basis because it is hearsay from Mr Nelson, in some respects, it is obviously from the bar table from Mr Short.
PN186
MR SHORT: I'm not suggesting the unions were present on 27 January. I have gone through the process of saying things from the bar table on the basis that it was agreed and as soon as it wasn't agreed I would stop. I take it, it is now not agreed so we will go back to evidence.
**** MARK WILLIAM NELSON XN MR SHORT
PN187
THE COMMISSIONER: Then we resume evidence, yes.
PN188
MR SHORT: Yes. Now, on 28 January did a number of contractor employees leave the site during their ordinary working hours?---That is my understanding, yes, sir.
PN189
And on 28 January did you receive a telephone call from Mr John Gresty of the AMWU?---I did.
PN190
And can you tell us about that?---The phone call received somewhere post 3 o'clock in the afternoon. Mr Gresty identified himself as - from the AMWU and indicated to me as the HR Manager for WMC that I had a dispute on my hands. I indicated to him that I wasn't aware that WMC had a dispute on their hands at all and Mr Gresty's response was to say: well, if that's the way you feel about it we'll cut it off there. It was a very short conversation.
PN191
MR O'MALLEY: Commissioner, we need to interrupt at this point. The evidence that is put before you is that Western Mine had no dispute. There is an element of the application that is before this Commission which is founded upon the assertion by the - contained in the application and by Mr Short that Western Mining Olympic Dam Corporation is a party affected by the dispute. We just had evidence on Oath that there was no dispute. We raise the issue as to whether or not you can proceed on that basis?
PN192
THE COMMISSIONER: Well, I think the evidence is that there was no dispute or, at least, that Mr Nelson claimed that there was no dispute between WMC and the unions.
PN193
MR O'MALLEY: The applicant is WMC Olympic Dam Corporation.
**** MARK WILLIAM NELSON XN MR SHORT
PN194
THE COMMISSIONER: That is correct and they are making application under section 127 on the grounds that it is they are alleging that they are a party likely to be directly affected by industrial action that is threatened, impending or probable in regard to work regulated by an award or certified agreement on their site. That is as I understand it.
PN195
MR O'MALLEY: And we will be asserting to you, Commissioner, that you are jurisdictionally bound to be unable to be interpret that part - that provision of the legislation and we will be arguing that the party affected is a party to a dispute or a party to an agreement under which a dispute has been found and Western Mining have already admitted in evidence there is no dispute with Western Mining Corporation.
PN196
In fact, when we cross-examine Mr Nelson, if we proceed any further, he will confirm that he regularly advised myself on behalf of the AMWU and - or this is on behalf of both unions, that Western Mining were not involved in any way, shape or form in the dispute. Mr Nelson and the other spokesperson are recorded in the media is also saying they weren't affected in any way, shape or form by the dispute. SO we raise the issue that we think you are now in an area where you are unable to proceed because the evidence before you is that there was no dispute involving Western Mining Olympic Dam.
PN197
THE COMMISSIONER: Can I suggest what we do is that Mr Short completes his examination, you do any cross-examination and then if you wish to make an application at that point then I will consider it at that point. Can we just get whatever evidence that Mr Nelson has, get that out of the way?
PN198
MR SHORT: Thank you, Commissioner.
PN199
THE COMMISSIONER: On the basis that, you know, it won't be too long I presume.
**** MARK WILLIAM NELSON XN MR SHORT
PN200
MR O'MALLEY: I hope not.
PN201
MR SHORT: Now, on 29 January I think you heard Mr Watson on the radio talking about Roxby Downs?---I heard the latter part of the discussion, yes.
PN202
If I show you now a transcript of that radio interview.
PN203
THE COMMISSIONER: If there is no - well, I note there are a number of marks on this.
PN204
MR SHORT: There are a number of marks. That is how it came to me.
PN205
THE COMMISSIONER: Whose marks are they? Does anybody know?
PN206
MR SHORT: Nothing turns on the marks.
PN207
THE COMMISSIONER: Any objections?
PN208
MR SHORT: Mr Mitchell tells me they are his marks.
PN209
THE COMMISSIONER: They are Mr Mitchell's marks, so we will - - -
PN210
MR SHORT: I seek to attach no significance to the marks.
PN211
THE COMMISSIONER: Fine.
**** MARK WILLIAM NELSON XN MR SHORT
PN212
MR SHORT: I seek to tender the transcript.
PN213
THE COMMISSIONER: Any objection?
PN214
PN215
MR SHORT: Commissioner, if I could draw your attention to a couple of passages. The bottom of page 1 you will see Mr Watson makes reference to both AMWU and the CFMEU. You will see the topic is identified as being terms - about employment terms and conditions at Roxby Downs. You will see that in the second paragraph on page 1. That is what we are talking about. You will see, Commissioner, on page 8 and the last paragraph that Mr Watson identifies that the objective is to try and negotiate with the major contractor company and establish a site agreement.
PN216
Much as occurred five years ago with the expansion project. Page 9, Mr Watson, at the second paragraph, indicates he is not far from the site. He is at the Olympic Dam Football Club where we held our meeting. So it is clear at this the union is involved with what I will seek to draw from that. I will put the submissions later, Commissioner. So that is WMC3, I think.
PN217
THE COMMISSIONER: WMC3, yes.
PN218
MR SHORT: Thank you.
PN219
Now, on the morning of Wednesday 29 January, Mr Nelson, did you drive past the Olympic Dam Football Club?---I did.
**** MARK WILLIAM NELSON XN MR SHORT
PN220
Did you observe anything as you drove past?---I observed a collection of individuals that to my view were holding a meeting.
PN221
What time was this?---My recollection is about quarter past 7.
PN222
In the morning?---In the morning, yes, sir.
PN223
Did you see any flags?---Yes, I observed, again, Eureka flags which I took to me CFMEU flags.
PN224
About how many people were there?---My observation would be numbers of about 100 or thereabouts.
PN225
Did you see Mr Watson?---I believe I did and my understanding was that Mr Watson was at the point, the time I drove past, appeared to be addressing the meeting.
PN226
A number of contract employees were away from the site again that day?---Yes, we had a reasonable number of employees not attend work.
PN227
Are you able to advise the Commissioner of a figure?---Approximately 220 to 240.
PN228
Was that about the mark from the Tuesday until Friday afternoon?---Yes. My understanding is that in fact, we had a slight return to work of those numbers over the following days.
PN229
So somewhere around half to a bit over half of the work-force was working?---Yes.
**** MARK WILLIAM NELSON XN MR SHORT
PN230
That is the contractor employees balance?---Yes, that is correct.
PN231
Taking action?---That is correct.
PN232
Now, later that morning were you informed that there were any union officials at the - at a gate entrance to the site?---Yes, I was made aware by our security people that they had stopped a vehicle from entering a southern lease gate. Actually, two vehicles, sorry. There were union officials at the gate and requesting my attendance.
PN233
MR WATSON: Objection.
PN234
THE COMMISSIONER: Yes, object.
PN235
MR WATSON: Mr Nelson is advising that vehicles were stopped at the gate and Mr Nelson wasn't at the gate so it is hearsay.
PN236
MR SHORT: Did you upon receiving that advice go to the gate?---I did go the gate.
PN237
Who did you speak to when you got to the gate?---I spoke to Mr Watson, Mr Plant from the AMWU, Mr Roberts and another gentleman who I believe is Mr Roberts' father but I am not absolutely sure of that.
PN238
You spoke to Mr Watson, did you?---I spoke to Mr Watson, yes.
PN239
Can you tell us about that conversation?---The nature of the conversation was that Jim was seeking to establish some dialogue with WMC. I at that point in time again reiterated that to my understanding the issues that they had were not issues with WMC.
**** MARK WILLIAM NELSON XN MR SHORT
PN240
Did Mr Watson indicate what it was he wanted a dialogue about?---Around the terms and conditions of the people working on the project.
PN241
What else can you tell us about that conversation?---I again reiterated that the issues weren't between WMC and the unions and that the union should seek to have discussions with the employers of the employees. Mr Watson asked if I would give him a contact for the project manager, KBR and I refused to give him one - the contact number.
PN242
What happened from there?---At the end of that conversation Mr Watson and Mr Roberts and Mr Plant returned to their vehicles. They - the vehicles were just inside the perimeter fence of the mine site. They proceeded to have some discussions, made a number of calls on mobile phones. Mr Roberts and Mr Roberts were the first to leave. About 10 minutes later Mr Watson and Mr Plant left.
PN243
Now, can I go down to Thursday 30 January, as you were going to work that morning did you observe anything at the Olympic Dam Football Club?---Yes, I was travelling to work at approximately 7.15 when I went past the Olympic Dam Football Club. I again observed a meeting under way of around 100 or thereabouts people. I observed Mr Watson up on an elevated level, I think standing on a rock, I am not sure what it was he was standing on, addressing the crowd.
PN244
Was Mr Roberts present?---I observed Mr Roberts standing beside Mr Watson.
PN245
About how many - sorry, about - were there any flags?---Again, I - my recollection is there were flags which could be identified as CFMEU flags.
PN246
AMWU?---I am not sure. The CFMEU flags are much more obvious than the AMWU flags.
**** MARK WILLIAM NELSON XN MR SHORT
PN247
Industrial action continued on that day?---It did.
PN248
On Friday 31 January were there any developments on that day?---Yes. There were some developments again on - as I travelled to work at - on this morning at approximately quarter to 8 I received a phone call, again from our site security people advising that there was a picket line being established at the southern lease gate. I proceeded towards site and in the process of doing so I went to have a look and see whether our normal alternative access road onto site was available for us to open up and redirect traffic. On the basis that I had been told the traffic was being stopped and turned away from site. I went to that access road which is off the main - the road to the airport, travelled down it some - a short distance, about 400 metres, and observed that there were four vehicles who I understand to have been people seeking to access site who normally would redirect themselves this way if there is a problem at the main gate. They were stopped and there were seven or eight individuals standing across what was still then a locked gate. On the basis of that I reversed out and came around to the main access road, Olympic Way, which leads through the main gate at the southern lease gate. There was traffic which was being redirected away from site.
PN249
So people were seen - were travelling into site but were turning around and going away?---That is correct. A number of people had pulled over their vehicles and were waiting to see what developments would occur. I joined that process and pulled my vehicle across to the side and walked down to the gate.
PN250
So about how many people were stopping access?---It looked to me like around 30 to 40 people.
PN251
Did you see any union officials?---As I approached the gate I noticed Darren Roberts and Andy Plant.
PN252
Were there any banners or flags?---There were again the CFMEU flags and there was an AMWU banner that I recall seeing.
**** MARK WILLIAM NELSON XN MR SHORT
PN253
Did Mr Plant have anything on his T-shirt?---Mr Plant had an AMWU T-shirt on.
PN254
Mr Roberts?---Had a CFMEU T-shirt on.
PN255
Did you walk through the picket line?---I did walk through it, yes. Mr Roberts, in fact, said hello to me as I walked through so
PN256
Other people were not being so successful?---I think other people were deterred from walking through the picket. They were - in the normal course of events would be wanting to drive onto site. Walking through the picket line would have only got them to the gate some 4-1/2 ks away from the site.
PN257
It is a long walk?---It is a long walk, that is right.
PN258
During the course of a day did the picket remain in place?---Yes, it did.
PN259
What was the effect of that?---The effect of that was that people who would normally seek access to the site during the day were unable to do so. They were turned away. That included the fact that we felt the need to put our road transport in a stand off position from site. We have a large number of road trains that access site each day and we weren't confident that we could have those road trains access site.
PN260
Did the police attend?---The police did attend. They arrived at about quarter past 9, that is my recollection.
PN261
Did the police discuss the situation with union representatives?---When the police arrived I had prior to that made my way on an inner site vehicle into my office. I was called back to the gate when the police arrived and I had some discussions with the local sergeant. He then proceeded to go and have some discussions with Mr Watson and Mr Roberts.
**** MARK WILLIAM NELSON XN MR SHORT
PN262
Mr Watson was present at the picket at this time?---He was at this stage, that is right.
PN263
What happened from there?---The police came back to me and asked me to come and join and have a discussion with Mr Watson. I proceeded to do so.
PN264
Was Mr Roberts present at this discussion?---Mr Roberts was also present.
PN265
Any other union officials?---Not sure of that.
PN266
What can you tell us about the discussion?---The discussion was around the police having requested the unions to provide access to the site and having been refused the police were seeking to, I think in their terms, mediate a potential solution. So they asked Mr Watson what it would take for the picket to be disbanded and Mr Watson responded that it would require a meeting between WMC and KBR to deal with the unions.
PN267
Did you say anything to Mr Watson?---At that point in time I said, that again, you know, the matter is not a WMC matter and that you should have - you should seek to have some discussions with the employers of the employees.
PN268
Well, did Mr Watson indicate what it was that he wanted discussed?---He was indicating that he wanted to work through the issues around terms and conditions for the EPE contractors.
PN269
MR O'MALLEY: Mr Commissioner, with your indulgence, I must leave, I have a particular appointment at 4 o'clock and I just can't cancel it. So I will leave and leave Mr Roberts to handle the - sorry.
PN270
THE COMMISSIONER: Mr Roberts remains? That is fine, Mr O'Malley, thank you.
**** MARK WILLIAM NELSON XN MR SHORT
PN271
MR SHORT: Did you ask Mr Watson and Mr Roberts to disband the picket?---My recollection is, yes, I did.
PN272
And?---And the response was no.
PN273
What happened from there?---After that discussion, I - the - the local sergeant asked whether - whether it was likely that there was going to be a meeting that could be facilitated and I said to Mr Watson and to the - and to the policeman that I would need to seek some instructions on that matter and so I left the gatehouse and returned back to my office.
PN274
Now, you are aware that a Commission Hearing took place later that afternoon?---I am aware of that.
PN275
Arising out of that, did you at some time see a copy of a recommendation from the Commission, by facsimile?---Yes, I did.
PN276
At about what time?---At about 5.05.
PN277
And what did you do with that copy?---I took a copy out to the southern lease gate and provided that copy to Mr Watson.
PN278
Was there any discussion?---Mr Watson was expecting the recommendation to be received.
PN279
And what happened from there?---Mr Watson advised me that there were a couple of matters that they - the union were still seeking clarity from the Commission regarding and my recollection is that they were in terms of the commercial - commercial viability of Ron Gee Enterprises and the demobilisation plans associated with UKG Employees.
**** MARK WILLIAM NELSON XN MR SHORT
PN280
And what happened from there?---I understand - he, Mr Watson returned to his vehicle and again was - I observed him in conversation on a mobile phone. That conversation took some minutes, I think, and following that conversation there was then a gathering of the people that were on the picket line.
PN281
And were Mr Watson and Mr Roberts speaking to them?---Mr Watson is - as I observed was the person that was leading the - leading that process.
PN282
And did you see any show of hands?---Over the course of about 10 minutes I observed two show - shows of hands.
PN283
And what happened then in relation to the picket?---After the second show of hands the picket disbanded.
PN284
Did Mr Watson and Mr Roberts approach you?---They did following - following that process.
PN285
And what were you advised?---I was advised that - that the picket had been disbanded but that the return to work associated with the EPE contract employees would not be able to be determined until a meeting held at 7 am on Saturday morning, the day after.
PN286
And that is a meeting that would impact on a time when contractor employees would normally be at work?---That's - that would be aligned with a shift change-over.
PN287
Did Mr Watson and Mr Roberts advise you as to why the picket had been disbanded?---I think, I don't think - know that there was any formality around that. It was my observation that it was in relation to the recommendation that had come from the Commission.
**** MARK WILLIAM NELSON XN MR SHORT
PN288
And on the Saturday morning, 1 February, on your way to work did you again pass the Olympic Dam Football Club?---I did.
PN289
Sorry - the Roxby Downs Football Club?---Olympic Dam.
PN290
Olympic Dam?---Olympic Dam Football Club.
PN291
Thank you?---I did, and about a quarter past 7 I observed that there was again a gathering of people and I observed that Mr Watson was - where was Mr Watson - no, I'm not sure that I could say that Mr Watson was there on that morning.
PN292
About how many - - -
PN293
MR WATSON: Difficult, because I was here.
PN294
THE WITNESS: That's right.
PN295
MR SHORT: About how many people were - - -?---My sense would be some 50 or 60 individuals.
PN296
On that day, was it the case that most of the contractor employees returned to work?---That's correct. There was the great majority of people back working on the project.
PN297
Now, in terms of delay on the project, is there a cost to WMC?---Yes, there is. Each day the project is delayed costs us around $300,000 in revenue projections.
**** MARK WILLIAM NELSON XN MR SHORT
PN298
Is there also additional costs to the project?---There are.
PN299
If access to site stops would be the impact of that be?---The impact to site, if we were not to be able to guarantee continuation of the operation, would be that we would have to put the mine into care and maintenance which would mean that we would not be moving any ore. In terms of our concentrated hydro met area and the refinery, it would mean that we would still need to try and seek to have minimum care and maintenance happening there because of the volatility of the products that are used and the smelter would have to be pulled down. That process would take anywhere up to 2 days to do and then the start up of that would be another 2 to 3 days.
PN300
What is the cost of a smelter start up?---Our estimate of that is about $10 million.
PN301
Loss of production from the mine, I take it that is well in excess of the $300,000 - - -?---That's true.
PN302
- - - revenue on a daily basis?---That's right.
PN303
Can you give any sort of indication?---It largely depends on what sits on our stockpile at any one time but the reality would be that if we didn't have good stocks in the stockpile then it would have a significant impact on our capacity to produce.
PN304
Well, if no one gets into the site to produce, I take it that you lose all your revenue?---That is exactly right. Those revenues equate to about $3 million a day.
PN305
If the smelter operation is not maintained, people can't get into the site, can you just leave the smelter?---No. The smelter is operating somewhere around 2000 degree celsius and it is a very volatile piece of plant and needs to be managed out of its operating state. The consequence - these smelters are meant to continue to operate. The don't take kindly to being taken up and taken down.
**** MARK WILLIAM NELSON XN MR SHORT
PN306
So are there any safety or environmental issues involved?---There are significant safety issues associated with escape of SO2 as an example into the environment and escape of those types of gases which may impact on our employees.
PN307
If access to the site is not maintained, do that have an impact for water and electricity for the township of Roxby Downs?---WMC has the role to ensure that safe water is provided to the Roxby Downs township and the electricity that comes to WMC site is then redirected down to the township.
PN308
Now, in relation to ongoing communication with unions, has notice of right of entry been served recently?---I received today a notice of right of entry from Andy Plant from the AMWU and from Darren Roberts from the CFMEU.
PN309
When are those notices proposing entry take place?---To occur 1 o'clock tomorrow afternoon for both.
PN310
To your knowledge have notices also been served on a number of contractors?---Yes, I am aware of notices having been served on a number of contracting firms.
PN311
When are those notices proposed to come into operation?---1 o'clock tomorrow.
PN312
Has the union communicated any advice that it is no longer pursuing improved rates and conditions for contractor employees?---No, they have not.
PN313
Has the union given any undertakings that it is not going to pursue industrial action?---Not that I am aware of.
**** MARK WILLIAM NELSON XN MR SHORT
PN314
What is your concern about further industrial action?---My concern is we are not able to operate our normal plant operation.
PN315
What is your concern about the risk of further action taking place?---There will be potentially some danger to our employees associated with not being able to, in a proper managed way, bring the smelter down.
PN316
Has there been unrest on site over the last week or so?---On site there have been a number of incidents that have occurred which may, by themselves, seem marginally trivial but as a whole significant. That includes the breaking of some fibreglass piping which is significant, the unflanging of some pipes which had been set and the removal of keys from vehicles, meaning there has been a lack of access to move around site for some people.
PN317
What about in the camps, the accommodation camps?---In camp 1 we have had a situation where for 3 of the last 4 nights someone has tripped out the electricity supply to the temporary camp provisions that were put in place. That is a mischievous action in my view.
PN318
THE COMMISSIONER: Are these matters being investigated, Mr Nelson?---We have got people on site trying to establish how those things have occurred and who might have done them, Commissioner. They are somewhat hard to do. Happening in the middle of the night.
PN319
What about the business with the pipes and so on?---Those matters have been investigated. We have not identified any individuals at this point in time, Commissioner, is my understanding.
PN320
Could there be any other explanation other than, I presume, you are implying sabotage?---I don't know that there is any other explanation, Commissioner. There is nothing else that has come to me that would indicate anything other than a deliberate action.
**** MARK WILLIAM NELSON XN MR SHORT
PN321
Yes, all right.
PN322
MR SHORT: Now, some further materials - I think you have looked at the AMWU web site?---I have, yes.
PN323
Do you recognise the item of 30 January?---I do.
PN324
I seek to tender that copy, Commissioner. It is an item relating to an industrial dispute at Roxby Downs in which the AMWU is calling for support for workers who have withdrawn their labour and identify Mr Watson as the contact person.
PN325
THE COMMISSIONER: This mentions occupational, health and safety issues, Mr Short.
PN326
MR SHORT: It does.
PN327
THE COMMISSIONER: Which we haven't heard anything about to date.
PN328
MR SHORT: No.
PN329
THE COMMISSIONER: All right.
PN330
MR SHORT: I seek to tender that.
PN331
**** MARK WILLIAM NELSON XN MR SHORT
PN332
MR SHORT: Now, there's some further matters. A facsimile to you from Mr Watson of 31 January. Two facsimiles of 31 January from Mr Watson. Now, the first of those seems to be a copy of a letter to companies?---The companies.
PN333
Raising issues regarding the site, actually issues and the site agreement?---Yes, that is right.
PN334
The second is a facsimile regarding the resolution to - regarding the stop-work meeting?---That's right.
PN335
I seek to tender both documents, Commissioner.
PN336
THE COMMISSIONER: They look like accurate documents, Mr Watson.
PN337
MR WATSON: Yes.
PN338
PN339
MR SHORT: On I think 4 February a newsletter was distributed to Roxby Downs residents?---I've seen the newsletter. I didn't receive it as a resident.
PN340
Are you aware that it was distributed to residents in the town?---I'm aware that some copies were placed on notice boards around town.
**** MARK WILLIAM NELSON XN MR SHORT
PN341
And that appears to be a CFMEU/AMWU newsletter?---It appears to be, yes.
PN342
I seek leave to tender that newsletter.
PN343
THE COMMISSIONER: Any objection?
PN344
MR WATSON: No objection.
PN345
PN346
MR SHORT: On 6 February were you aware that the unions issued an update?---Yes, I am aware.
PN347
I seek to tender that update.
PN348
THE COMMISSIONER: Again, if there's no objection.
PN349
MR WATSON: No objection.
PN350
**** MARK WILLIAM NELSON XN MR SHORT
PN351
MR SHORT: I've nothing further, Commissioner.
PN352
THE COMMISSIONER: Cross-examination, Mr Watson?
PN353
PN354
MR WATSON: Mr Nelson, could you provide us with any evidence that there's any industrial action taking place right now on the site?---I'm not aware of any formal industrial action, no.
PN355
So you cannot provide us with any evidence that there's any industrial action taking place on the site right now?---That's correct.
PN356
Can you point to something that you have received from the union or unions which threatens industrial action?---No formal communication from the unions that threatens, no.
PN357
So you cannot point to any evidence that threatens industrial action?---No formal communication from the unions, no.
PN358
No, it is not my question. I put to you - - -
PN359
MR SHORT: Well, that is really a question incapable of answer. The whole of the evidence of Mr Nelson has been - - -
PN360
MR WATSON: Can you point to some evidence that there's a threat of industrial action by the union or unions on your site?---My view is - - -
**** MARK WILLIAM NELSON XXN MR WATSON
PN361
Yes or no is all that is required.
PN362
MR SHORT: Well, no, that is not - - -
PN363
THE COMMISSIONER: He can elaborate on the answer, I think, Mr Watson.
PN364
THE WITNESS: My view is that the actions of the unions since November of last year indicate that the unions have a continuing interest in some issues on the Olympic Dam site and that their actions over that time have been unpredictable; haven't been preceded by any advice from the unions about action. There has been an imposition of action by the unions. So I guess I have a view that there is an impending threat of further action from you.
PN365
MR WATSON: Mr Nelson, you referred in your earlier evidence-in-chief that on 27 January there was a stoppage of work?---That's correct.
PN366
Did you have any evidence that any unions were on site on that particular date?---I was not aware of any union or union officials - - -
PN367
If I put it to you that there were no union officials whatsoever anywhere near the Roxby Downs area either electronically or otherwise?---I couldn't tell you whether that was correct or not.
PN368
I put it to you that there wasn't any unions in the area on the 27th?---I wasn't aware of any union official on site or in the area.
PN369
So I take it that the fact that a union has an interest in a company you are put before this Commission that that is a threat. That is what you would like this Commission to believe?---What I'm putting forward to the Commission is that in fact your actions so far indicate a threat to us.
**** MARK WILLIAM NELSON XXN MR WATSON
PN370
No, I'm asking you about today, right now?---I am indicating right now that I think that there is still an ongoing threat.
PN371
You think there is an ongoing threat?---That's what you asked me.
PN372
Okay, so you haven't got any evidence of a threat?---I think I - I think we've - - -
PN373
No, no, you think this is an ongoing threat. You haven't got any evidence of a threat.
PN374
MR SHORT: Hang on. The witness is entitled to answer the question, not be interrupted constantly by you because you don't like the answer.
PN375
THE COMMISSIONER: Okay. You are wanting to put something; you put a proposition to the witness, Mr Watson.
PN376
MR WATSON: I put it to you, Mr Nelson, you have no evidence of a threat for any industrial actions at this point in time. Do you agree with that?---My response is that I have seen the actions that you've undertaken over the last few months and believe that we are still under threat.
PN377
So you have no evidence either that there is any impending industrial action?---The response from the last question, I think, stands in this case.
PN378
That is the response to all of your questions because what you are responding is not evidence.
PN379
MR SHORT: Well, this is - - -
**** MARK WILLIAM NELSON XXN MR WATSON
PN380
THE COMMISSIONER: Well, that is a matter for the Commission to determine, Mr Watson.
PN381
MR WATSON: I put it to Mr Nelson that it is not evidence.
PN382
MR SHORT: Well, he can't put that, Commissioner.
PN383
THE COMMISSIONER: I think, Mr Watson, the difficulty we face in section 127 is that it does not only talk about action that is happening or that promised it talks about threatened, impending or probable. That means that one must therefore interpret events in the context of what is now happening and what has happened in the past, that is the difficulty. It does not just simply talk about action that is happening right now or promised for tomorrow or the next day or the day after, it is happening, threatened, impending or probable. I think that is the matter where the question of judgment needs to be made.
PN384
MR WATSON: I understand that, Commissioner. I am seeking, because Mr Short has put down absolutely no evidence whatsoever that there is any industrial action taking place at this point in time. He has put forward absolutely no evidence whatsoever that there is any industrial action threatened. He has put forward no evidence at all that there is any impending industrial action and he has put forward no evidence that there is any probable. I would suggest to you that the opinion of Mr Nelson the fact the union is taking an interest in the company, which is the very reasons unions exist, does not amount to any one of those definitions. I simply - Mr Short hasn't established the evidence. I am simply trying to ensure that that evidence cannot be established. The ability of Mr Nelson to answer the questions by diversion I think is sufficient for you to consider on weight his responses that he has no evidence. I am simply trying to insist upon that on this Commission.
PN385
Mr Nelson, in answers to questions from Mr Short, you confirmed that O'Malley and myself sought to establish dialogue with you on a number of occasions by phone and face to face?---Yes, that's correct.
**** MARK WILLIAM NELSON XXN MR WATSON
PN386
As I understand it, you confirmed no dialogue occurred?---No significant dialogue occurred would be my - - -
PN387
Okay, let me - - -?---Would be my preference.
PN388
Okay, let me rephrase the question. You confirm no dialogue occurred in relation to negotiations to resolve the dispute?---That's correct.
PN389
Correct me if I am wrong, but you advised the Commission that I asked you to assist me by directing me to the appropriate person or persons for the major contractor and I think you confirmed that you refused to do so?---Yes, I think - if I can elaborate on the conversation, Jim, I think the conversation went something along the line of: Jim, you know who the people are.
PN390
That wasn't your answer to Mr Short. Your answer to Mr Short was that you refused to do so?---That's correct.
PN391
Do you recall?---That's correct.
PN392
Yes, thank you?---Yes, I didn't actually - I agree I didn't give you a name or contact.
PN393
In relation to the receipt of notices for right of entry, do you concede that is the legal right of the unions to seek right of entry?---If it is legally established under the Act, yes.
PN394
So you understand there is a provision for right of entry following notice and that notices are required?---That's right.
**** MARK WILLIAM NELSON XXN MR WATSON
PN395
Are you party to an agreement to the which the AMWU and the CFMEU is also a party?---Who are you referring by WMC?
PN396
WMC - well, you are here to represent the WMC Corporation?---Not that I'm aware of.
PN397
If I advise you that you are not a party to any agreement to which the AMWU and the CFMEU is a party, would you accept that as being correct?---I think it confirms my view, Jim.
PN398
Mr Nelson, you were provided with a transcript of a radio interview which is marked WMC3 by Mr Short during your examination. Did you read that transcript?---I have read it over - a number of weeks ago, I think.
PN399
You probably read it a number of times because - for preparation for your evidence today?---I'm sure I have actually done that, Jim.
PN400
Mr Nelson, can I take you to the first page, it is actually headed page 2, the first page of the transcript and the final paragraph. Do you note in the commencement of the second sentence there is insufficient toilet amenities for the number of workers that are contracted to work on site?---I see the reference, yes.
PN401
Do you note, the next line, there is insufficient ..... ?---I see the reference, yes.
PN402
You note, the next sentence, which is significant general safety features - sorry, significant general safety conditions which members have raised with us now and we will have to start to address?---Yes, I see that.
PN403
The next but one paragraph do you notice the second sentence, the heat?
**** MARK WILLIAM NELSON XXN MR WATSON
PN404
MR SHORT: The transcript speaks for itself unless there is something that the witness is being asked to comment on from it. It is not enough that he sees it. We can all see. That is a matter for submissions.
PN405
THE COMMISSIONER: I am assuming we are leading somewhere here, Mr Watson.
PN406
MR WATSON: Thank you, Commissioner. Do you understand all of those issues that I brought to your attention in the transcript to be occupation, health, safety and welfare issues?---That is one label that could be given to them.
PN407
In relation to exhibit WMC6?---I haven't got my documents marked.
PN408
The newsletter but it is the document behind the newsletter?---Yes.
PN409
You note that there is a list there starting on page 1 of that document, listed 1 to 12 and go throughout 4 or 5 pages to number 67?---Yes.
PN410
Have you read that document, Mr Nelson?---I've read cursory the document, yes.
PN411
Would you recognise that to be a list of occupation, health, safety and welfare issues?---Identified as the issues that were raised by the unions as a list of concern around OH&S issues.
PN412
Those issues were raised before you seen that document, weren't they?---Before I've seen it now?
PN413
Yes?---Yes, I'd seen the document prior to today.
**** MARK WILLIAM NELSON XXN MR WATSON
PN414
The issues contained within the document were raised with you before you had seen the document?---No, I had seen the document prior, Jim, to today.
PN415
No, I am not talking about prior today, I'm talking about to you prior to you seeing that document. The issues, for example of the dog boxes were raised with you verbally?---By who?
PN416
On site?---By who?
PN417
By union representatives, by workers on site?---Not that I recall, Jim. Not that I recall directly.
PN418
We had better go through all 67 then, Mr Nelson, and find out which ones can recall that were raised with you before because - - -?---Can I ask who by, Jim?
PN419
By workers on site or union representatives at any time before you received the document.
PN420
MR SHORT: Commissioner, can I ask what is the relevance of this exercise?
PN421
THE COMMISSIONER: Mr Watson.
PN422
MR WATSON: Well, obviously the exercise is to establish that Mr Nelson, among others and we only have Mr Nelson from WMC at this stage, was stating there is a threat of probable or impending industrial disputation has took absolutely no action whatsoever, in fact quite the contrary, to avoid any disputation that has occurred in the past and then has the audacity to come to here and seek to get orders on the basis of pending - impending, probable - sorry, what was the other one?
**** MARK WILLIAM NELSON XXN MR WATSON
PN423
THE COMMISSIONER: Threatened, impending or probable.
PN424
MR WATSON: Threatening when there is absolutely no industrial action taking place whatsoever. That is the intention.
PN425
MR SHORT: Well, I object. That line would have no relevance.
PN426
THE COMMISSIONER: I will allow it for the time being but I don't think we need to go through all of these points but I will allow your line of questioning for the time being.
PN427
MR WATSON: I will remind, Mr Nelson. I suggest to you, Mr Nelson, that some of the 67 matters that are now listed before you, have been raised with you, on site, by workers and by union representatives, verbally, prior to you receiving this list, is that correct?---Jim, what I am indicating is that I would seek clarity in understanding when they were raised. If you can - - -
PN428
I am not trying to establish - - -?---If you can provide that to me then I will be able to confirm or otherwise.
PN429
I am not trying to establish when they were raised with you, I am trying to establish they were raised with you before you seen the documented list. Let me try and assist you. The documented list was only made available on - - -
PN430
THE COMMISSIONER: Monday this week.
PN431
MR WATSON: Monday, 1 February in this Commission?---Yes.
PN432
MR SHORT: The third.
**** MARK WILLIAM NELSON XXN MR WATSON
PN433
THE COMMISSIONER: Monday 3 February, that is correct, yes.
PN434
MR WATSON: Third, sorry, 3 February.
PN435
What I put to you is some of the issues that arose, in the 67 items, were raised with you either on site by workers on site or by unions verbally prior to that.
PN436
THE COMMISSIONER: It may help, Mr Watson, if you point to perhaps two as an example.
PN437
MR WATSON: Number 59, for example, Mr Nelson:
PN438
Pressured to work under all conditions to finish within the time span.
PN439
Raised with you probably on the Monday - the Sunday and/or Monday prior to any disputation. I think it was 27th?---Sorry, can you repeat that please.
PN440
Number 59:
PN441
Pressure to work under all conditions to finish within the time span.
PN442
?---How was that raised with me, please?
PN443
It was raised with you prior to - it was one of the major issues raised as a consequence of the dispute - the cause of disputation on 27 January?---How was it raised with me is the question?
**** MARK WILLIAM NELSON XXN MR WATSON
PN444
Verbally?---By?
PN445
By workers on site?---No.
PN446
Insufficient toilet amenities on the work site, 52?
PN447
THE COMMISSIONER: You ever heard about that as being a problem?---To my recollection it wasn't raised to me by union representative or by workers on site.
PN448
MR WATSON: It was raised with the employer of those workers?---Sorry?
PN449
It was raised with you by the employer of those workers?---There has been some discussions around amenities on the site. Obviously in terms of preparation for the project.
PN450
Thank you, Mr Nelson. Number 12, contaminated water on the whole of the site. A sign was put to out warn workers not to use or drink the water, do you recall that?---I became aware of this issue because we had to manage a problem with our desalination plant.
PN451
THE COMMISSIONER: When did you become aware of it, Mr Nelson?---I would have become aware of it very early on the morning that it became obvious that we had a problem. It was raised - - -
PN452
Roughly when would that have been, back in January?---I don't recall the date, the date or the circumstance. It was a matter whereby we had a problem coming up out of a shut down of our desalination plant and there was a plug of caustic material that got into the water supply. It raised the PH levels in the water and we had to manage that issue because it was both for the water supply for the site and also water supply for the township. So it was raised with me not as a matter arising direction from the EPE project or any work on that project, it was raised as a crisis issue for the site.
**** MARK WILLIAM NELSON XXN MR WATSON
PN453
MR WATSON: Number 22, Mr Nelson, cutting of fibreglass on site without any proper safety procedure put in place, including griding of this produce?---I became aware of this issue only after this list was provided to the Commission.
PN454
You were not aware of it beforehand?---No, I wasn't.
PN455
So you are not aware of - do you know Mr Dave Thomas?---Yes, I do know Mr Dave Thomas.
PN456
Mr Dave Thomas is an employee of WMC, I understand?---No, he is not.
PN457
He is not, thank you for that. I withdraw that, Commissioner.
PN458
No radio in site office for emergency purposes, number 31?---I was not aware of the issue being raised until this document was filed in the Commission.
PN459
Mr Nelson, you confirm you are aware of three of these issues, I am not going to go through the whole 67, you confirm you are aware of these issues and you have been before?---Well, some, as I have indicated, on the transcript in terms of responses to the questions.
PN460
I have no more questions, Commissioner.
PN461
THE COMMISSIONER: Any re-examination, Mr Short? Sorry, Mr Roberts, no. Any re-examination then?
PN462
**** MARK WILLIAM NELSON RXN MR SHORT
PN463
MR SHORT: Just in relation to the water issue that you were asked about, item 12, from WMC6, are you able to say was that a one-off incident?---Yes, it was a one-off incident.
PN464
As at the time of this newsletter, 6 February, was it a historical incident?---It was very much a historical incident.
PN465
Had the issue been addressed a substantial period of time beforehand?---Yes.
PN466
And it had been resolved?---Resolves, that's correct.
PN467
You were not aware of any further issue or concern in respect of that matter as at February?---No.
PN468
Until - well, I imagine until this, about 4 minutes ago, when Mr Watson asked you a question?---That's correct.
PN469
Commissioner, I have nothing further in re-examination.
PN470
PN471
MR SHORT: I seek to call Mr Starr.
PN472
MR WATSON: Commissioner, can we inquire as to the likely duration of the hearing?
PN473
THE COMMISSIONER: Mr Short, do you have any comment on that?
PN474
MR SHORT: Subject to the Commission's discretion and whatever evidence the unions may be called, based on how Mr Nelson went, Mr Star might take about 45 minutes, I think. Mr Watson thinks longer and I gather by that response that he does.
PN475
THE COMMISSIONER: I would suggest that perhaps we have a 5 minutes break, just a 5 minute break but Mr Watson, what I am intending to do is to press ahead and hear the evidence and hear submissions. I would indicate to the parties that I may well need to consider this matter overnight. Mr Short, I hope you would understand that.
PN476
MR SHORT: Yes.
PN477
THE COMMISSIONER: As it turns out, I have one other matter first thing in the morning but at this point I would not be intending to hand down a decision in this matter until probably about 11 o'clock tomorrow morning. So if we could, at least deal with the evidence today and submission, give me time to consider this matter. Five minutes I think might be for everyone's comfort.
SHORT ADJOURNMENT [4.35pm]
RESUMED [4.48pm]
PN478
PN479
THE COMMISSION: State your full name, please?---Clive Jonathon Starr.
PN480
Your address?---Care of 136 Greenhill Road, Unley 5061.
PN481
Occupation?---Industrial Advocate.
PN482
MR SHORT: Mr Starr, you are employed by the Engineering Employees Association of South Australia?---Yes, I am.
PN483
You have been providing services to KBR in relation to industrial advice for a project at Olympic Dam?---I have.
PN484
What is that project?---EPE.
PN485
That stands for extraction plant enhancement?---Sorry, yes, it does.
PN486
Have you also provided assistance to contractors from time to time as KBR request you to?---Yes, I have.
PN487
Now, I think on Wednesday, 29 January of this year you attended at the Olympic Dam site?---I did.
PN488
Was there any particular reason for you going to site on that day?---I think it was a regular planned visit that I had arranged a week or two earlier.
PN489
As it turned out was there any reason over and above the ordinary?---Yes. I guess that I had been aware that the unions had made their way to site and in fact I observed a meeting below the football club as I came out from the airport road.
**** CLIVE JONATHON STARR XN MR SHORT
PN490
During the course of that day, Wednesday, 29 January, did you speak to any union official?---Yes, I had a call, I think it was late morning, from Jim Watson from the AMWU who had effectively said, "Starry, I believe you're here and all roads lead to you" or words to that effect.
PN491
Did Mr Watson indicate what he wanted to speak to you about?---Yes, he wanted to talk about a number of issues that concerned him and asked whether I could see him later in the day.
PN492
Did he identify at that time what the issues were?---Not really, no.
PN493
Did he identify who the issues related to?---Contractor employees.
PN494
Not to WMC?---No.
PN495
At the site there are a number of contractors, good employees, on the EPE project?---Yes.
PN496
You understand that that project is for the ultimate benefit of WMC?---Yes.
PN497
To your knowledge does disruption of that project impact directly on WMC?---Absolutely.
PN498
Now, were arrangements made on Wednesday, 29 January for you to meet with Mr Watson?---Yes, I indicated to him that I was busy and that I had things to do. However, I said that I'd probably be in a position within an hour or so to call him back. Out of courtesy I did that I think around about 2 o'clock and indicated that I'm still tied down but happy to meet with him and that was eventually achieved I think around about 4 o'clock that afternoon.
**** CLIVE JONATHON STARR XN MR SHORT
PN499
Where did the meeting take place?---The meeting took place around the pool at the Roxby Motel, that's where it took place.
PN500
Who was at the meeting?---At the meeting was Jim Watson, Andy Plant, both from the AMWU, and Darren Roberts from the CFMEU.
PN501
About how long did the meeting go?---A considerable length of time. I think it was about 6.30 or - a couple of hours certainly I was there.
PN502
Was anything conveyed to you as to what the unions were seeking?---In general terms, yes. I mean - and we went around the block a few times, so to speak, but what was conveyed to me, and I wasn't writing at that time copious notes, but a number of OH&S issues were delivered as needing addressing, together with issues regarding rates of pay of some contractors, hours of work of some contractor employees and in essence a desire by the unions to achieve a similar agreement that had been in place on a previous project at Olympic Dam called OEP where effectively minimum rates and conditions were set.
PN503
So was there reference to the OEP project agreement?---Yes, there was.
PN504
Was there reference to a desire for common rates and conditions?---Yes.
PN505
For contractor employees?---Yes.
PN506
In particular for improved rates and conditions?---That's so.
PN507
For contractor employees?---That's so.
**** CLIVE JONATHON STARR XN MR SHORT
PN508
Was this in the context of the industrial action that was then taking place?---Yes, it was effectively conveyed that this was an issue. It couldn't be ignored. I think from my perspective I was relaying that effectively the contractor employees had not applied the appropriate grievance resolution procedures, that there was no formal log of claims being made to those contractor employees at that time and I think Mr Watson was indicating: we don't have a way ahead. As I said, we went around the block a few times with this but I said, "Well, I disagree with that". The way ahead to my mind was that those employees who were taking industrial action, and of course it wasn't all at that point in time, should return to work and whatever the grievances are, whatever categories they might fall in, they should be processed with their respective employers following their disputes procedures.
PN509
From your role as an industrial adviser to the Project Manager are you able to say to the Commission whether or not employees at Ron Gee and Built Environs were among those who were taking industrial action?---I understand they were.
PN510
The OH&S issues that were raised, was it your understanding these were being raised like as a generic type of issue or was there something more detailed that you could focus on?---No, they were basically generic issues because we couldn't nail down who the contractor was, what the employee was, at what time the event occurred, but I would certainly categorise it as generic, not specific, at that point in time.
PN511
Again from your role as an industrial adviser was there any utilisation of relevant dispute or grievance procedures by the employees taking industrial action?---None, as I saw it.
PN512
Is it the case that all contractors working on the EPE project had in-term industrial incidents, whether they be AWAs or certified agreements?---That's certainly my understanding.
**** CLIVE JONATHON STARR XN MR SHORT
PN513
I take it that is a matter that you have given a good deal of attention?---Yes, yes.
PN514
So were you suggesting that the employees should return to work and follow their dispute procedures?---I was.
PN515
What was the union's response?---I think their response was: well, I don't think it's going to be settled as easily as that, as I recall.
PN516
Was Mr Watson doing most of the speaking for the unions?---It was, yes.
PN517
Was there any disagreement from Mr Roberts?---No.
PN518
It was put to you as a joint position?---Yes, that's right. I mean, essentially Mr Watson did most of the speaking. Certainly Andy made comments and Darren made comments, but essentially Mr Watson did most of the carriage of the conversation.
PN519
Was there any outcome to the meeting?---Not really. Look, I said that with respect to their desire of seeking some form of agreement that overrode current agreements already in place that that was not going to happen and I think I - I'm relying on memory here - used a term: don't hold your breath waiting for that, it ain't going to happen, you're going to die. So I emphasised that these contractors did have in-term agreements. I think there was some question about the validity of some and I said, "Well, don't talk to me about that, raise those concerns with the appropriate forum", but there is in-term agreements, they are in place, they underpin the contractual arrangements that are in place as well and there is disputes procedures, they haven't been followed, no claims have been made on those companies.
PN520
So how did the meeting conclude?---Well, it was a pleasant meeting, if you can call it as much. There was no angst there. We shook hands. I said, "Look, I hear what you say". They did likewise and, of course, I was aware that there was a further meeting on the following morning, the Thursday, yes.
**** CLIVE JONATHON STARR XN MR SHORT
PN521
By the way, did Mr Watson ever advise you why he had rung you earlier that day?---I think he said that my name had been mentioned by a KBR employee who he'd previously spoken to.
PN522
Can I go now to Thursday, 30 January?---Yes.
PN523
Was there a further discussion with Mr Watson?---There was. Mr Watson rang me, again running on memory, but it was after his meeting so I would suspect it would have been around about 9 or 9.30 where he rang my mobile and indicated to me that the meeting that he had held had agreed to stay out for a further 24 hours. He had reported to that meeting that they had spoken to a spokesperson from KBR, myself, and I got the impression that he was really seeking whether in fact I had anything to say, which I really didn't at that point in time.
PN524
Was there anything said about pickets?---Yes, there was. During this conversation I inquired what the status was of the strike because I had heard suggestions that there were pickets on and there certainly were pickets on when I arrived on site.
PN525
Sorry, there were or were not?---Were not.
PN526
Were not?---I asked Mr Watson the specific question, "Have you got pickets on" and he said, "No, we haven't and we don't plan to".
PN527
So that is on Thursday, 30 January?---Correct.
PN528
Did Mr Watson say anything about whether contractors were on site?---He indicated that he believed that most contractors were off site but I think in that conversation I was indicating: well, look, you know, there are contractors here working, there are employees working.
**** CLIVE JONATHON STARR XN MR SHORT
PN529
Was anything said about returning to work?---Again I, and I'm running on memory here, but I'm sure I would have conveyed that: look, the way ahead of this is a return to work, bring these issues up, the employees directly with their employer, in accordance with the disputes procedure. It wasn't a long conversation as I recall.
PN530
To your knowledge a number of employees remained engaged in industrial action on that day?---Yes.
PN531
That would include employees at Ron Gee and Built Environs?---Correct.
PN532
Was there further discussion between Mr Watson and yourself on that day?---I think on - this is the Thursday?
PN533
Yes?---I did receive a call on my mobile, a message left by Jim, essentially wanting to discuss urgently matters relating to contractors. Unfortunately I didn't get that message because I was flying from Roxby Downs back to Adelaide on that Thursday evening and my the time I got to that or in fact it might have been before that, Jim had rung me again and I think around about 7 or 8 o'clock that evening expressing his concern that some contractors were saying to their employees that there was no log of claims as such and I was saying, "Well, effectively there was no log of claims. Yes, you had raised issues in a generic sense but there was no log of claims, there was no log of claims to any of those contractors themselves".
PN534
Did you say anything about the site-wide contractor agreement?---I can't recall on that one but I'm sure that - most of the conversations we had were on those generic issues and the site-wide contractor agreement and most of my responses were consistent as well.
PN535
Was there any reference by Mr Watson to notice of a bargaining period?---There was at that point in time, in fact, because I - as I recall it Jim had said, "Look, notice of bargaining periods had been issued to some of those companies late last year".
**** CLIVE JONATHON STARR XN MR SHORT
PN536
Yes?---I said, "Well, certainly my mind running wasn't running along those notice of bargaining periods, it was on those issues that we spoke about around the pool".
PN537
Did Mr Watson suggest to you that those notices were the claims?---Yes.
PN538
Was that the first time you had heard that from Mr Watson?---That's the first time I'd put the connection together, yes.
PN539
Right. Now, in respect of that, if I can show you a number of documents that I understand you will have seen before. One is a copy of a facsimile from Mr Watson to Michael Nesbitt of KBR. I think you know Mr Nesbitt?---I do.
PN540
He is a person you deal with in relation to your role assisting KBR?---Yes.
PN541
Now, I'm afraid there's three bits to this. Do you recognise this facsimile from Mr Watson to Mr Nesbitt attaching a letter of 30 January, a notice of initiation of bargaining period and a draft copy of an agreement?---Yes, I do.
PN542
Is it your understanding that these were claims that were being advanced against contractors?---Yes.
PN543
The proposed agreement identifies in clause B2 as proposed parties the AMWU, CEPU and CFMEU?---What clause was that again, sorry?
PN544
Clause B2. If you look in the top right-hand corner. I'm looking at the draft?---Sorry, this one?
PN545
Yes?---I beg your pardon. Yes.
**** CLIVE JONATHON STARR XN MR SHORT
PN546
If you go in four pages to clause B2?---Yes.
PN547
You will see that three unions are identified as proposed partners to the agreement?---Yes.
PN548
CFMEU and AMWU are proposed partners to the agreement?---Yes.
PN549
Is this document substantially based on what we've been talking of as the OEP project agreement?---Yes.
PN550
THE COMMISSIONER: What was the status of that OEP project agreement, Mr Starr, do you know? I mean, was it a certified agreement or?---It was before my time, sir, but as I understand it was an agreement reached but not certified, that was my understanding of it.
PN551
How long ago was it roughly?---I think it was in the period of '97 to '99, around that period, sir.
PN552
So it was in effect an unregistered agreement?---That's my understanding, yes.
PN553
MR SHORT: If it assists, Commissioner, I think the contractors went and got certified agreements in terms of those conditions.
PN554
THE COMMISSIONER: I see, yes, I understand.
PN555
MR SHORT: The CFMEU was not a party to any of those agreements. I seek to tender those documents perhaps as one exhibit, Commissioner.
**** CLIVE JONATHON STARR XN MR SHORT
PN556
PN557
MR SHORT: Now, continuing on I now show you a facsimile from Mr Watson to the Manager of Built Environs of 30 January which has the same draft copy agreement, a letter in the same terms as that to Mr Nesbitt?---Yes.
PN558
You understand that?---Yes, I do.
PN559
Is it your understanding that a number of contractors received like correspondence from Mr Watson?---That's my understanding.
PN560
I seek to tender that document.
PN561
PN562
MR SHORT: The fax machine is clearly running hot. Mr Watson then on 31 January faxed to you a letter in terms of that which was sent to contractors for your information?---That's right. I didn't sight it until 31 January, yes.
PN563
**** CLIVE JONATHON STARR XN MR SHORT
PN564
MR SHORT: You are also I think aware that on 31 January Mr Watson sent a facsimile to a number of contractors on site and to KBR a copy of a resolution regarding a stoppage at work?---Yes.
PN565
I seek to tender that facsimile of 31 January 2003, Commissioner.
PN566
THE COMMISSIONER: Does that look accurate, gentlemen?
PN567
PN568
MR SHORT: Now, had the unions at this time abandoned their claims as communicated to you?---No.
PN569
You I think were involved in meetings on 3 and 10 February of this year in relation to their issues?---Yes.
PN570
That was in respect of KBR?---Correct.
PN571
Commissioner, I was not at those meetings and I'm not sure whether they were without prejudice or not. I don't want to go into anything which was properly without prejudice.
PN572
THE COMMISSIONER: I think we can regard those meetings as being without prejudice, Mr Short. I mean, they were not specifically discussed as such but I think it would be appropriate since they were before the Commission.
**** CLIVE JONATHON STARR XN MR SHORT
PN573
MR SHORT: Yes. I point firmly to that. Suffice to say was agreement reached?---No.
PN574
Now, one of the matters the Commission will be considering is the risk of further industrial action taking place. Can you assist the Commissioner in relation to that topic?---Well, it would be my clear perception that given the second meeting with KBR representatives and myself and the two unions, that the performance, the brief performance, that was there on that day, I think there is a real possibility of ongoing industrial activity.
PN575
Have the unions, to your observation, evidenced that they had complied with notice requirements or dispute procedures in the past?---No.
PN576
Do you have any confidence that they would do so in the future?---No.
PN577
Can you see any harm to the unions if they are ordered not to take industrial action in terms of a proposed order?---I can't, no.
PN578
Can you see any harm to WMC if the order is not granted and industrial action is taken?---I can.
PN579
Would you describe that harm as substantial?---Absolutely.
PN580
I have nothing further, Commissioner.
PN581
THE COMMISSIONER: Mr Watson?
PN582
**** CLIVE JONATHON STARR XXN MR WATSON
PN583
MR WATSON: Clive, you described the meeting that we had at the hotel, I think you called it the Roxby Hotel, I understood it to be the Oasis, I'm not sure which is - - -?---I think the Oasis is the restaurant, the Roxby Hotel is the name of the - - -
PN584
Thank you for that. You described it as generic?---Mm.
PN585
It was really just advocates from opposite sides sitting around a table by a swimming pool, as I recall it, trying to identify ways and means to resolve the dispute, that would be the best way to describe it, wouldn't it?---Well, yes, but I was trying to get more of a handle on what the issues were and the only things that you really identified was safety and that's why I say in the generics, rates where you believe were low and your desire for OEP wages and conditions to apply.
PN586
Yes, you are correct and I was conscious that you were working on memory and you probably recall that as part of those generic discussions that we raised a number of OH&S and other issues with you. Some that were raised were - described some of the accommodation was known as dog boxes?---Yes, you did, yes, you did.
PN587
We explained what the complaints were from the site about dog boxes were in the seventies?---Well, I recall I wrote - and it wasn't there as a record writing every detail - because I think we talked about the process and it was more a discussion, but I recall writing probably a dozen or so issues that you raised. You did touch on dog boxes.
PN588
Mentioned about the contamination of the water?---You did, yes.
PN589
We advised that the matters being claimed by the companies, by some of the companies, they weren't aware of any of the complaints and we said to you that it is a bit difficult because one of the complaints was raised and a fairly senior manager of one of the companies about the contaminated water said, "Then when you shower close your eyes"?---Yes, you did say that. You didn't identify the manager, the company.
**** CLIVE JONATHON STARR XXN MR WATSON
PN590
No, at that time I didn't, no?---The employee that was allegedly to have happened and I think that we generally agreed that: look, there's probably a fair bit of fat on these claims, because you said that they were basically brought to your door and you couldn't be more specific than that.
PN591
That is right. One of the things that we raised was that generally speaking there was circumstances that existed out in Roxby that ordinarily didn't exist elsewhere. For example, we said that one of the complaints we had had - we went and pinned it down as to where - one of the complaints we had is that even the ability to have a shower and turn the water cold was not being very well experienced by workers?---You did raise that and on many of those I must say my understanding of the site and the contractors was that I found that hard to believe.
PN592
That is correct, that is correct?---Nonetheless, I did say on a number of occasions that the correct way to deal with these matters was for those employees to go back to their contractor, their employers, and through the disputes procedure. I said that numerous times during our discussion.
PN593
That is true. You also said that they were covered by MTM agreements during that discussion?---Yes, I did.
PN594
You mentioned earlier that I contacted you when you had arrived in Roxby Downs and following advice from KBR that you were their representative?---Yes, correct.
PN595
When we met to discuss this issue we also - you may recall that we talked about the commencement of the dispute and that we actually were on site when the dispute commenced, do you recall that?---Yes, I remember you saying that, yes.
**** CLIVE JONATHON STARR XXN MR WATSON
PN596
You said that we needed to understand that we've spent the time that we've been here, including the whole day we wasted to speak with you following the first contact, attempting to get around the table for discussions, negotiations, objectives of resolve. Do you recall that?---You did say those things. I guess that what was in my mind, and we weren't in an argumentative mood there, I think, but against the backdrop of the union being up there before Christmas and at that point saying they were coming back, I was also mindful of that. I confirm you said those things to me.
PN597
Yes. I also remember using the term that effectively this dispute has been brewing for some time about all of the issues, including - and I said an undercurrent of dissatisfaction with the industrial situation, rates of pay, conditions, etcetera?---You did say that to me.
PN598
I said that basically it was blown up because the workers had had a gut full?---That was your comment.
PN599
Yes?---Again I said at numerous times during this that whatever the complaint, whatever the issue, they must follow their disputes procedure. They have agreements and surely the best way to progress this is if those employees go back with the specifics to their company and it is resolved.
PN600
That is correct, you did say that. Following you saying that we said, "Well, therein lies the difficulty" because complaints along the nature of those that we were discussing, and we haven't covered them all, we were talking generic, we covered a lot more than that, as you would agree, and we advised you, if you remember, that we said, "There's a difficulty with taking that approach because anybody that lays a complaint or bobs their head up to lay a complaint is threatened with a window seat", so you recall that?---I recall you saying that and you probably recall me saying, "I don't believe that, I find that really hard to believe".
PN601
In fact, I said to you - it gets a bit further than that on those occasions where workers have raised complaints. There was sufficient example, and I apologise for my language particularly to the recorder, but the general response was, "If you don't like it, fuck off"?---Yes, you did say that.
**** CLIVE JONATHON STARR XXN MR WATSON
PN602
And in fact somewhat to ensure that you understood the situation facing those workers that I advised you that there was two particular workers that I assumed reside together in a cabin or something and advised us that they stand at the door as they're coming and say to each other, "If you don't like it, fuck off" to prepare themselves for the day. Do you remember me telling that story?---Yes, I remember you telling that story but again I - I, with regard to issues particularly relating to OH&S which got a fair hearing on that day, given what I understand are the policies and procedures of Western Mining Corporation, the site policies and procedures, given what I intimately understand is the policies and procedures of KBR, I really found that difficult to understand.
PN603
You have been an employee advocate for sometime, Clive, is that correct?---Yes, yes, I have.
PN604
And you would understand the mechanics of how award come about?---Yes, I do.
PN605
And the logging of claims?---Yes.
PN606
And identification of disputes?---Yes.
PN607
And I can't remember any specific ones now but I think from memory, I think unions - most unions would have a claim of somewhere in the vicinity of about 2½, $3000 a week wage claim?---Yes.
PN608
That is a fair comment?---It is.
PN609
Have many of them logs of claims been withdrawn?---Many of - sorry?
PN610
Have many of those logs of claims, to your knowledge, have been withdrawn?---Do you mean on previous - - -
**** CLIVE JONATHON STARR XXN MR WATSON
PN611
No, the logs of claims pursuant to which disputes are found?---Generally, no.
PN612
Well, they can't, can they, because you would know, I mean, if you withdraw the log the award falls, a dispute can't be found, etcetera?---Yes.
PN613
And that would, of course, would then in your possession, give rise to probably - possibly, sorry - I said - you used the word possibility. Your perception that there is a possibility of ongoing disputation, because we haven't withdrawn the claims?---No, no, my - I think the - - -
PN614
That was your answer to Mr Short?---Well, the question was different. The question was: given the meetings that we had in regard to you initially on, I think it was 3 February identifying - were issues of concern for KBR and - and the meeting that was conveyed so KBR could respond to those issues and you may recall, I think on the 3rd we spent again many hours, I think between 2 and 6 o'clock, 6.30 where you identified some 67 OH&S claims and - and a further document in regard to IR matters. One would have thought that if you were serious in getting the response from those you would've given a greater attention than you - than you did at the meeting on - on - on the - on the 10th and clearly I formed that view of ongoing industrial activity or the likelihood of it and that was the questions I asked - I was asked and that's what I answered.
PN615
Mr Short definitely put to you after he put the exhibits before you which contained such things as the draft claims, the notice of bargaining periods?---Yes.
PN616
With a list of matters to be dealt with, etcetera, etcetera. He specifically put to you, "Have them claims been withdrawn?" Your answer was, "No"?---That's right.
PN617
The next question was in relation to whether or not you had a belief there was a threat or a probability of industrial action and you said, "Yes"?---Yes.
**** CLIVE JONATHON STARR XXN MR WATSON
PN618
That is correct. I put it to you again the claims, to your knowledge, haven't been withdrawn?---No.
PN619
That formed the basis of an award, because I suggest you there is a probability of impending industrial action because those claims haven't been withdrawn?---I think what you are putting to me is two scenarios. What one is, how - how logs of claims generally occur and are they withdrawn? That's one issue. The specific issue in regard to this matter is: do I believe that there is a strong likelihood of industrial action taking place? I have that view.
PN620
And that is based on the finalisation of a meeting that took place before this Commission on 10th?---Yes.
PN621
So your perception of the mannerisms of individuals?---Well, not only but what's happened to date.
PN622
What has happened to date?---I mean the strikes that have occurred, the fail - - -
PN623
No, no. Hang on, hang on. We have had the history, Mr Short has done a quite chronological sort of layout of the history?---Yes.
PN624
We are talking about right now?---I - - -
PN625
MR SHORT: He is answering his question. He is getting interrupted on the answers. Shouldn't he be allowed to continue to answer and - that is the normal proceed.
**** CLIVE JONATHON STARR XXN MR WATSON
PN626
THE COMMISSIONER: Yes, he should. There might be some need for clarification, of course, as well, but Mr Starr you say what you need to say and then we will come back to Mr Watson again?---I - I have the firm opinion that given all that's happened and what I know is the events to date, the conversations we have had, the failure of the - of the employees to comply with their contracts of employment with regard to the dispute procedure. The - the regular reference by me to you who have really been - or the union representatives who have been my contact. The fact that after that event and, of course, I was present during some of the proceedings on the Friday before the Commission and again I was present on the Saturday before the Commission and the undertakings given that - that should - you identified a KBR, those issues and have an opportunity for them to look at them. They seriously looked at them, it took them a long time to get there and it was a matter of down to the wire, I must say on Monday, 10th to get some of those final responses in and the attitude of the unions who were present at the report on the 10th, where one would have expected that if you were serious about them you would have given them the appropriate consideration. I formed the view that there is a real likelihood of continued industrial action.
PN627
MR WATSON: That is just an opinion, isn't it, Mr Starr?---That's my opinion.
PN628
It is an opinion?
PN629
THE COMMISSIONER: Are you talking specifically, Mr Starr, there about the responses to the OH&S issues?---Well, really they didn't get much of a run on 10th. My recollection clearly was that, I think, the union were in the room all but of 15 minutes, I suppose. Mr Watson was on his feet departing at one stage during that 15 minutes. There was no sit down and discussion any one of those OH&S issues because the union were anxious to get to the IR response which didn't satisfy them.
PN630
But in fairness on the OH&S issues, the document that you presented had a various of responses?---Yes. Indeed, that's - - -
**** CLIVE JONATHON STARR XXN MR WATSON
PN631
Some of which would have invited further comment from the parties?---Yes.
PN632
But in regard to the industrial issues and the response that you provided on that that really contained no joy, did it, as far as the unions were concerned?---That's correct.
PN633
Yes?---As a matter of fact it - it effectively contained my original advice of: look, there are agreements in place, there are disputes procedures, they should - they should be followed and they are, of course, they are commercial contracts already left.
PN634
Sorry, Mr Watson.
PN635
MR WATSON: Clive, you just advised this Commission that the unions were anxious to get to the industrial issues at that meeting. Can you advise the Commission as to what evidence you have to support that?---I guess it was your comments, Mr Watson, and your goading to get to the document to - - -
PN636
I put it to you, Mr Starr - - -
PN637
THE COMMISSIONER: Well, again, I would indicate here I have said that Mr Short - that those meetings were without prejudice and I don't really intend to have regard to those.
PN638
MR WATSON: Then if the Commission is going to put that weight I won't pursue it any further.
PN639
MR SHORT: Commissioner, can I just say that on my part, I haven't taken any objection to it on the basis if Mr Watson wants to lead the evidence I'm not objecting.
**** CLIVE JONATHON STARR XXN MR WATSON
PN640
THE COMMISSIONER: No, and I know my question actually was a question related to the documents that were tabled on that day but - - -
PN641
MR SHORT: But again there has been no objection by any party.
PN642
THE COMMISSIONER: No, but I do not intend to rely on any particular comments that were made at those meetings either on 3rd or on 10th.
PN643
MR WATSON: Thank you, Commissioner. Mr Starr, can you provide us any evidence of industrial action that is presently occurring on the site?---I'm unaware of any at this point in time.
PN644
So you cannot provide us any evidence of industrial action taking place on the site?---No.
PN645
Thank you. I have no more questions of Mr Starr.
PN646
THE COMMISSIONER: Mr Starr, the list of issues, Occupational Health and Safety issues that is before the Commission is quite an extensive list and it would appear that some of those issues in there are, on the face of them, potentially quite serious?---Yes, I agree with that, Commissioner.
PN647
Have you read the draft order that the applicant in this matter has put to the Commission?---Yes, I have, Commissioner.
PN648
Now, on the face of it, that order would prohibit industrial action by employees who are union members in regard to work or conditions that they might claim amounts to an imminent risk to their occupational health and safety. Would you agree with that?---I must say I only read the document once.
**** CLIVE JONATHON STARR XXN MR WATSON
PN649
It may be, in fairness, it may be a matter for submissions, in which case I'm sure Mr Short is making a note of this, but it may not be a fair question to you?---Mm.
PN650
But perhaps let me come at it another way because this is a concern the Commission has, there are allegedly some serious occupational health and safety issues on that site. How should they be dealt with in your view?---I think in accord with the processes that are already there, sir. I'm not across the detail of all of that even though I've heard KBR talk bout it and - and I've followed it to the best of my understanding but there are checks and balances right across that site and there - there are provisions that should be utilised, can be utilised, are utilised in regard to employees who have any - any difficulty or apprehension with regard to safety issues.
PN651
When you talk about processes, what processes would they be? Are they processes pursuant to the various industrial, or certified agreements that are in place?---The certified agreements and - and the State OH&S provisions, sir.
PN652
Yes, all right. Mr Short, any re-examination?
PN653
PN654
MR SHORT: Now, Mr Watson has asked you about the 67 points that we have submitted?---Yes.
PN655
MR ROBERTS: These are without prejudice. We are not talking about - - -
PN656
MR SHORT: And the document that has been distributed to the township.
**** CLIVE JONATHON STARR RXN MR SHORT
PN657
THE COMMISSIONER: The document is in front of the Commission today though, Mr Roberts.
PN658
MR SHORT: Are you satisfied that those issues have been addressed?
PN659
MR WATSON: Sorry - objection. I didn't put anything in relation to the 67 issues at all to Mr Starr.
PN660
MR SHORT: Yes, you did.
PN661
MR WATSON: I put it to Mr Nelson.
PN662
MR SHORT: No, you put it to Mr Starr.
PN663
MR WATSON: I spoke about the generic meeting we were having and the examples of the generic discussions we were having at the pool.
PN664
MR SHORT: Questions were put in relation to what happened at the meetings and that a number of issues had been raised and you also raised that on their face they are substantial issues.
PN665
THE COMMISSIONER: Unfortunately - Mr Watson, I raised issues in regard to those 67 points, but if you wish to ask a question on them then I would allow you to as well. But anyway you proceed, Mr Short.
PN666
MR WATSON: Thank you, Commissioner.
PN667
MR SHORT: Now, the Commissioner asked you a question about on their face, some of those potentially substantial - I am paraphrasing - are you satisfied that those issues had been addressed?---Yes.
**** CLIVE JONATHON STARR RXN MR SHORT
PN668
Since 10 February, has there be any indication that the unions wanted any further discussion taken in relation to those issues or any further action taken in respect of any of those issues?---No.
PN669
As far as you are aware, the topic of discussion on these 67 issues is a dead letter?---That is as I understand.
PN670
So far as you are aware, none of those issues have been - withdraw that. In relation to Mr Watson at the meeting at the Roxby Downs Motel raising a suggestion that some employees had been told, in effect: If you don't like it, fuck off. Are you aware of any substance to that allegation?---No, I am not.
PN671
Is that a matter that, following that discussion, you gave attention to?---Yes, I did.
PN672
You could find no substantiation?---I couldn't.
PN673
I have nothing further.
PN674
THE COMMISSIONER: Mr Watson, I will allow you to pick up anything in regard to those 67 issues in that occ health and safety document, if need be.
PN675
MR WATSON: No, I think Mr Starr adequately addressed them on our behalf.
PN676
PN677
MR SHORT: That is the case for the applicant, Commissioner.
PN678
THE COMMISSIONER: Are you going to lead off, Mr Short?
PN679
MR SHORT: I take it the union is not calling any evidence?
PN680
THE COMMISSIONER: Is the union calling evidence in the matter?
PN681
MR WATSON: No.
PN682
THE COMMISSIONER: I took that Mr Watson's earlier comment that he believed jurisdiction had not been made out but probably keen to jump the gun at this time of the night as well but never mind, you can proceed, Mr Short.
PN683
MR SHORT: Commissioner, you have considered the terms of the section and you clearly understand the proper operation of section 127. WMC does not need to be a party to any dispute, it just needs to be affected by it. It does not need to be a party to industrial action, it just needs to be affected by it. So Mr Nelson is absolutely right when he says, well, look, your dispute is not with us, it is with those employers but we are affected by what happens.
PN684
You have before you evidence of industrial disputations. You have evidence before you of the proposed negotiation of an enterprise agreement and industrial action relating to that proposed negotiation because you have those notices of the initiation of bargaining periods and you have the evidence in relation to Mr Watson having said that is what the claims are.
PN685
You have evidence in respect of improved rates and conditions for contractors, the two unions conducted unlawful stoppages in November on two occasions and they did it without notice. There is no suggestion of any compliance with dispute procedures or the Workplace Relations Act. They just brought the action on. They were told to go away and they didn't. Now, should we have some confidence they have turned over a new leaf, why? They haven't.
PN686
In January - I am not standing here suggesting on 27 January I can demonstrate the unions initiated the first stoppage but what the evidence clearly demonstrates is the unions picked up and ran with industrial disputation and actively pursued it and took steps to prolong it, to be involved in it, to manage it. They put in place the pickets. They communicated demands with contractors on site. They conducted meetings of employees engaged in industrial action. They were actively involved in the industrial action.
PN687
They don't have to have started it, they clearly ran with it and it became worse. The pickets, which were put in place on Friday, Commissioner, you are well aware that the unions were involved in putting them in place and the unions were instrumental in getting them removed. They clearly demonstrated that they had the ability - had a role and a significant role to play in relation to the imposition and the removal of those pickets. You will recall, Commissioner, on that Friday, Mr Watson put to you: Well, we can remove them, just need someone to agree to talk to us. That was the effect of it and it happened when WMC agreed to facilitate meetings with KBR.
PN688
You will recall also on Saturday, Commissioner, when we didn't have the reporter, that undertakings were short from the unions because I expressed concern that if that process didn't work then all bets would be off and we would be exposed to action and we needed a time frame, after the conclusion of those discussions, in which we could be confident - in which we would have undertakings that action would not be taken because we were not in a position to proceed to orders because unfortunately the reporter was not available. You will recall those undertakings were refused.
PN689
Now, the discussions took place. There were suggestions that for a period of 48 hours after the conclusion of discussions, action would not be taken but it was not put in terms of undertakings. The message, as we apprehend it, was that after 48 hours all bets were off hence we are here in this time frame. It seems to us that whatever position the unions were putting on the Saturday, they would feel released from any obligation, moral or otherwise, to the Commission 48 hours after the meeting of 10 February.
PN690
Now, in relation to work being regulated by a certified agreement, Commissioner, I have not tendered the certified agreements because you will have access to them and we have identified them and there can be no issue about that. In relation to your discretion about action that is happening, we are not suggestion action is presently happening.
PN691
THE COMMISSIONER: The enterprise agreements, by the way, that you referred to are they still those enterprise agreement covering Built Environs and Ron Gee Enterprises?
PN692
MR SHORT: Yes.
PN693
THE COMMISSIONER: So my understanding they are the Built Environs Engineering Projects Enterprise Agreement 2001-2003.
PN694
MR SHORT: Yes.
PN695
THE COMMISSIONER: And the Ron Gee Enterprises Proprietary Limited Certified Agreement 2002?
PN696
MR SHORT: Yes.
PN697
THE COMMISSIONER: The work to which you are referring in your order is work covered by those two agreements?
PN698
MR SHORT: No. It is work - it is not restricted to those two. The order relates to conduct of the unions at that site. If you like, that gives us the trigger to seek relief but it does not limit us to relief in respect of employees of those employers. It is happening in relation to that work, that enables you to make an order. The terms of that order then generally will be in your discretion. Does that make sense, Commissioner?
PN699
THE COMMISSIONER: It does.
PN700
MR SHORT: Now, you have rightly identified, Commissioner, there is a value judgment to be made about whether action is threatened, impending or probable. Our position is, and it is clear, action is threatened, impending or probable. This is not like a section 99 log of claims, some historical matter where you leave it on foot forever, we are in the real world. This is where action is being called on which has caused substantial disruption and loss in breach of Workplace Relations Act, in breach of disputes procedures where undertakings are not being put, where there is a track record of legal obligations being ignored and police direction being ignored, where the evidence - where the police have requested people depart and remove pickets and they have not and that - - -
PN701
MR WATSON: Sorry, I need to object on that part of the submission. There has been no evidence lead whatsoever of any legal obligations not being complied with by the union. The evidence that was lead was of conversations that took place between members of the, I think, Metropolitan Police based in Roxby Downs, Mr Nelson and representatives of the unions. Never any evidence lead that there was some kind of illegality in relation to those conversations.
PN702
MR SHORT: No, because that is a matter for submissions. It is not for Mr Nelson to give the legal conclusion, I am doing that in my submissions. I am saying if the police direct you to move on and you don't and you engage in unlawful picket action that that is unlawful. I am saying if you trespass - - -
PN703
MR WATSON: I am sorry, there has been no evidence led for that.
PN704
MR SHORT: Excuse me.
PN705
THE COMMISSIONER: The Commission needs to determine whether or not action has been lawful or unlawful. It needs to take - that is a call for the Commission.
PN706
MR WATSON: Commissioner, with respect, if there was an unlawful action that had occurred there would be a matter of factual evidence available to this Commission that there would either be charges pending or charges already fulfilled and found. That is the only evidence the Commission can accept as some ..... than this. This Commission is not a Magistrate's Court, with respect, and can't determine the unlawful - - -
PN707
THE COMMISSIONER: No, I understand that but in terms of section 127 there is certain judgments that have to be made in terms of the Commission exercising its discretion.
PN708
MR WATSON: I accept that.
PN709
THE COMMISSIONER: It is certainly not up to me to say whether something - I don't make a call whether some action has been lawful or unlawful for the purposes of criminal law, that is for sure, I can assure you of that.
PN710
MR WATSON: I can accept that and the reason for my objection is the way, in the submission, the last part of the submission put by Mr Short, he was attesting that that was already factual evidence before you and then he was inviting you to make the decision so I think both of those are incorrect.
PN711
THE COMMISSIONER: Perhaps you can clarify the position, Mr Short.
PN712
MR SHORT: I will. With respect, Mr Watson is just not getting this. Mr Nelson has given evidence of trespass on WMC land and a direction to leave which was ignored. He has given evidence - this is in relation to November - he has given evidence the police attended and directed union officials to leave and they did not. That evidence leads to the conclusion that unlawful behaviour took place - just hang on - that is trespass. In relation to the picket action, Mr Nelson gave evidence of police directions to leave and the pickets continued. That is evidence which supports the conclusion of unlawful activity. Now, the evidence is there. From that follows the submission. That is the usual process. That is what I have followed.
PN713
THE COMMISSIONER: Look, in any event, at the end of the day, I mean, this is part of the submission that you are making in support of your 127 application.
PN714
MR SHORT: That is right.
PN715
THE COMMISSIONER: Section 127 itself does not require the Commission, as such, to make a finding that there has been unlawful behaviour in the past.
PN716
MR SHORT: I agree that is not a prerequisite and that is not an essential. Rather, what I would be submitting to you is the context, the history if you like, the track record of industrial action and the way in which it has been conducted, whether dispute procedures have been followed, whether notice has been given, whether directions have been followed, would all be relevant matter for the exercise of your discretion. It is not for you to say: And the police should have charged you. It is not for you to say: And WMC could have taken action for trespass. You don't need, I think in this case, I suggest, to go that far. That is a matter for you when writing you decision. Does that assist, you Commissioner? What has happened is relevant. Whether you attach a particular legal to it is up to you.
PN717
THE COMMISSIONER: Mr Nelson, in his evidence, says there was trespass on the property. It is not up to me to make a finding as to whether there was a trespass or not in a technical sense.
PN718
MR SHORT: You could do so but you may feel it is not necessary and I am not standing here today urging you to say: Please go and charge people, we are not doing that.
PN719
THE COMMISSIONER: The key thing in 127 is that I need to determine whether there is industrial action as defined that is either happening, threatened, impending or probable in relation to work that is regulated by an award or certified agreement.
PN720
MR SHORT: Commissioner, so if we can get back to that.
PN721
MR ROBERTS: Could I raise, I don't do this a lot - - -
PN722
THE COMMISSIONER: Yes, Mr Roberts.
PN723
MR ROBERTS: At no stage, in any of this since November or February or January, did any police officer or group of police every come up and say: Remove yourself, remove the picket, you're not to be here. We were certainly asked as to our ability to be there, which we then produced right of entry cards to say that we had the right and authority to be here. The police then read them, took them away - didn't take them away - went away to gather further information about that. Came back and there was no question put to us at all whether we should either move, remove or be moved. At no stage was there ever one point said of that.
PN724
THE COMMISSIONER: I note your comments in that regard.
PN725
MR SHORT: Just a brief response. It would probably be better if Mr Roberts gave evidence rather than hear our evidence and then decide in submissions he doesn't like it. Secondly, all Mr Roberts has done on that is demonstrated a preparedness to abuse right of entry provisions.
PN726
THE COMMISSIONER: Proceed, Mr Short.
PN727
MR SHORT: In relation to the concept of action being threatened, impending or probable. What I put to you, Commissioner, is you look at the circumstances in relation to the matters in dispute and what has happened at that site in the past, because that gives you an ability to consider - to form a view about whether in the circumstances before you action was threatened, impending or probable. That is a fairly common sense proposition. If the industrial issues that have given rise to action in the past are still live then that would enable you to form the view that further disputation, further industrial action is likely or is impending or probable or threatened, you can then form that view.
PN728
Here, what is clear is industrial action has happened. The issues are not resolved. You, Commissioner, understandably put in place what I would describe as a circuit breaker to try and let some things cool down, let some talks take place. Well, that circuit breaker is at an end. It failed. It didn't resolve anything so we are back where we were. We are back where we were on Friday, 31 January and Saturday, 1 February where issues are still live. You recall the unions talked about: we will give you 48 hours afterwards, after the discussions break down, that is where we are and that means we are right back in it.
PN729
Now, if the unions were taking action and this is all dead why wouldn't they get in the witness-box and just say so? Why wouldn't they give the undertakings that were asked for back on the Saturday? You can draw an inference from the failure to give evidence in response to Mr Starr and Mr Nelson and this application, but the reason they are not doing that because it wouldn't help their case because it is not real, it is not the situation. You are entitled to draw an adverse inference.
PN730
You have nothing before you but the evidence that has been given today and the events that you were present at on the Friday, 31 January and Saturday, 1 February. No transcript, but you were there and you can take that into account at those proceedings. You also have before you the reality that there is absolutely no prejudice to the unions in the grant of this order, but there is substantial prejudice if the orders are not granted and action happens. WMC has already lost hundreds of thousand of dollars. There is one matter that in - - -
PN731
THE COMMISSIONER: Can I just ask in regard to the no prejudice issue and I ask the question of Mr Staff about the occupational health and safety issues.
PN732
MR SHORT: Yes, and I'm just about to.
PN733
THE COMMISSIONER: Okay.
PN734
MR SHORT: That is a legitimate observation, Commissioner, and it is one that warrants attention and properly raised by you. There is a system of managing occupational health and safety on site.
PN735
THE COMMISSIONER: Whose system is it?
PN736
MR SHORT: Yes, there is a system of senior management leading - it cascades down to - there is a safety committee, there are elective safety reps on that committee. There are the regular toolbox meetings, there are procedures both in the dispute procedures, grievance procedures and occupational health and safety procedures. None of which are being utilised in relation to these matters.
PN737
THE COMMISSIONER: Those occupational health and safety procedures are found in what, the State legislation?
PN738
MR SHORT: No, no, no, over and above that there are procedures about on-site in relation to management of issues. So depending on what sort of issue it is there are procedures in place for it to be addressed.
PN739
THE COMMISSIONER: Yes, so they are management procedures?
PN740
MR SHORT: Yes. There are management procedures and there are the industrial instrument procedures.
PN741
THE COMMISSIONER: You see, again, I say on the face of it some of these 67 issues are very significant issues.
PN742
MR SHORT: Yes.
PN743
THE COMMISSIONER: And if the Commission were minded to award, or make orders one great concern for the Commission would be not to have those orders impact on a worker being able to protest their - the safety or, protest against their conditions.
PN744
MR SHORT: I understand. Yes, yes legitimate observation.
PN745
THE COMMISSIONER: Now, I need to be sure that I am not putting employees in a situation where I could be putting their safety or health at risk. As I say, there are some issues there in those 67 issues that are pretty substantial issues on the face.
PN746
MR SHORT: That are on their face, warrant consideration. Now, Mr Starr has given evidence that they have all been addressed and the unions had the opportunity to come back, you will recall, you gave them the opportunity to come back and ask anything more about that if they wanted and they didn't want. I can't delve into the detail of the response because you have indicated that that is a without prejudice matter, so I shouldn't go there.
PN747
What we do have is Mr Starr saying: look, it has all been done, and no one has raised any of those issues and the unions haven't sought to agitate anything further. If these are serious issues well KBR has put a response and nothing more is happening, it is dead.
PN748
THE COMMISSIONER: What would you say to an exclusion in your draft order, again if the Commission were minded to grant that and that the jury is out?
PN749
MR SHORT: Yes.
PN750
THE COMMISSIONER: But if the Commission were minded to grant an order what would you say about an exclusion to the effect of excluding any action taken by a person to whom this order applies if such action is based upon, lets say, a reasonable concern by that person about an imminent risk to their occupational health and safety, or indeed to the OH&S of other workers on site?
PN751
MR SHORT: Two things. One, is I had in mind paragraph 5 would be some comfort in that regard because if the reason comes to light why the order shouldn't have force it would be very quickly be back before the Commission and you would take that on board.
PN752
THE COMMISSIONER: Yes, but I mean if there is a problem about, lets say for example, toxic fumes blowing the site. I mean, it is going to take 48 hours to get back before the Commission.
PN753
MR SHORT: I understand. The concern - - -
PN754
THE COMMISSIONER: And indeed paragraph 5 raises another issue about the, you know, what I call the open-endedness of this draft order.
PN755
MR SHORT: Yes.
PN756
THE COMMISSIONER: At this stage it applies, well, until further order which means permanently, like forever until the Commission does something about.
PN757
MR SHORT: Or the unions bring it back and say: look, the time has come for this order no longer to have force and effect to be considered at that time. So at any time they can come back and say: it should no longer have operation. That is what I had in mind.
PN758
THE COMMISSIONER: Sure, I understand that. What would you say though to an exclusion clause being put in this order?
PN759
MR SHORT: I understand the concept and as a concept it is difficult to oppose. The practical qualification I have, Commissioner, and you will appreciate this too, is the potential for that to be misused.
PN760
THE COMMISSIONER: Absolutely.
PN761
MR SHORT: And so my concern is in relation to the particular framing of it, I understand your difficulty and you are alert, of course, to the practical application of it. I'm not sure that a - - -
PN762
THE COMMISSIONER: But that can be said in regard to any order that the Commission makes under section 127 in any dispute.
PN763
MR SHORT: Yes.
PN764
THE COMMISSIONER: You can say: well, OH&S issues can always become a convenient tool, and one understands that, but how does the Commission overcome that?
PN765
MR SHORT: Yes, it depends - it may be influenced by whether those complaints are substantiated, whether any evidence is put forward to substantiate them. For example, now, in this matter nothing has been put forward to substantiate them. Mr Starr has given evidence that, for example, in respect of the, "If you don't like it, fuck off" but he investigated that complaint and found no substance. He has put to you that all of the issues which were raised have been addressed.
PN766
You had Mr Nelson giving you evidence in respect of a water matter, that that was a one off historical matter that had been addressed a substantial period of time ago. You have no evidence before you to substantiate those matters in a situation where that was what the union was seeking to do. This hearing is no surprise, that WMC calling it back on is no surprise. The unions have elected to call no evidence. They have had the opportunity to do that, they have elected not to do it.
PN767
So while they have had the chance to say: well, there are legitimate issues that actually have substance, they have chosen to put nothing to you to give any substance to any of those claims and you should deal with it in that light. They have put forward industrial claims and this may well be a situation where OH&S issues are being used to support a claim for improved rates and conditions. From all the communications before you, where the union has come out and said improve rates and conditions, that is certainly a matter which is well available to you to reach a fair conclusion.
PN768
So Commissioner I would urge you to take that on board and not allow the opportunity for labels to be given that should not be given to action. I recognise you will give that consideration, Commissioner, and you will need to think about that overnight. If you did do it, then you will appreciate it would need to be a tight qualification so it was properly used. I mean, in terms of immediate threat to life or serious risk of injury, for example.
PN769
Not looking to be unreasonable about it, if you were determined to put a qualification in, I'm submitting to you that the qualification is not appropriate in this case, that there are procedures available. But if you do it, it should be a tightly controlled qualification and I would hope that is with some assistance there on that topic, Commissioner. It may be that you may look at the terms of other orders in other matters to gain some assistance if you determine to go down that road. Commissioner, I don't want to take up more of your time unless there was anything else that you think you would like to have addressed?
PN770
THE COMMISSIONER: One other issue I would like to address with you, this order or draft order that you have put to the Commission is binding only on two parties, the two unions concerned.
PN771
MR SHORT: In paragraph 3, you will see it affects the unions, their officials, organisers, delegates and members and - I'm sorry, I should delete "and the persons named in this order". That is an oversight in paragraph 3.
PN772
THE COMMISSIONER: Yes.
PN773
MR SHORT: So it will, in effect, it stops Mr Watson and Mr Roberts going back to site, conducting meetings, coming on to the site and conducting meeting, putting place pickets, pursuing demands for improved rates and conditions, and it stops other officials of the union - - -
PN774
THE COMMISSIONER: I understand that but why, if the Commission were minded to issue an order why should WMC, at least, and possibly even the contractor employers and they would also be bound by these orders and I say that because in 3B, for example, you were talking about not only the continuation, maintenance or imposition of any limitation on a restriction on a performance of work but it goes on, of course, to talk about the offering for work.
PN775
There have been allegations about people getting window seats for raising all sorts of grievances. So why should the order not also apply to WMC and the contractor employers. I'm not saying - there is no evidence before the Commission that has been industrial action by those parties but would you have an objection if any order applied to those parties.
PN776
MR SHORT: You could not make an order against persons who haven't had the opportunity to be heard in these proceedings, with respect, that would be inappropriate. The contractors aren't here.
PN777
THE COMMISSIONER: Leaving aside the contractors, WMC is here.
PN778
MR SHORT: But WMC is not the employer of anyone engaged in this dispute. WMC is not seeking an order in those terms and this is WMC's application, nor is it an issue that has been addressed by anyone in the course of these proceedings, nor has there been the slightest suggestion that WMC had done anything that warrants an order against it. Commissioner, with the greatest of respect, that would be quite misconceived to make any order against WMC, this is our application. On the evidence before you there would be no basis for an order against the applicant, nor am I aware of any case that has happened, Commissioner.
PN779
THE COMMISSIONER: It would hardly be prejudiced by it though, would it?
PN780
MR SHORT: It is not a matter of prejudice.
PN781
THE COMMISSIONER: No, but - - -
PN782
MR SHORT: I'm not even getting to that. It simply can't be done, in my submission, there would be no statutory basis for it because you have no evidence before you in relation to WMC doing anything other than suffering substantial harm and I would strongly oppose any such order.
PN783
THE COMMISSIONER: You are saying that the - I realise the problem about the contractual employees not actually being here but I raise that issue in 3B and I realise you have taken the wording in 3B directly from 127, whatever it is, but the wording there when it talks about the offering for work, that surely is an aspect that applies to employees, isn't it?
PN784
MR SHORT: No, no, no, it can, for example, catch the unions going to the contract and saying: hey, you can't employ this person at this site. So that is how it goes with it. It also can apply to unions dealing with people who want to turn up at sites and work saying: well, you can't go there, you can't go in.
PN785
THE COMMISSIONER: Yes, I accept that but it could also apply, as far as employees are concerned, as well? I mean with employees saying: look, I'm ready, willing and available to work tomorrow as I have the last previous weeks, and the employer says: well, you are now no longer required, we're de-manning the site, you've got a window seat.
PN786
MR SHORT: I understand.
PN787
THE COMMISSIONER: Is that not a limitation on the offering for work?
PN788
MR SHORT: That would be, that would be, because they wouldn't be offering work any more, yes.
PN789
THE COMMISSIONER: That is what I had in mind when I put that to you.
PN790
MR SHORT: Yes.
PN791
THE COMMISSIONER: But you are saying: well, the offering for work can also apply in terms of the unions.
PN792
MR SHORT: Yes, it does actually have a practical value on the order as drafted, in my submission, it has a practical operation.
PN793
THE COMMISSIONER: Yes.
PN794
MR SHORT: Is there anything else I can assist you with, Commissioner?
PN795
THE COMMISSIONER: The operative date of the order? The operative time? I mean, you have said from the day of the Commission's decision.
PN796
MR SHORT: From the time the decision is handed down.
PN797
THE COMMISSIONER: Service of the order?
PN798
MR SHORT: On the unions and - - -
PN799
THE COMMISSIONER: To be effected by - how?
PN800
MR SHORT: By facsimile.
PN801
THE COMMISSIONER: What steps would be in place to promulgate this throughout the Olympic Dam site?
PN802
MR SHORT: That would be governed under paragraph 4, but I can say, I think, with complete confident that WMC would ensure that an order was made widely known because it wants the order to be effective. If that gives you the comfort you are looking for, Commissioner.
PN803
THE COMMISSIONER: The other thing I would say in this, looking at the wider issue, I mean, it is one thing to look at orders for these matters. The fact is, of course, one is, of course, treating the symptoms rather than the disease, if I can put it that way.
PN804
MR SHORT: Yes.
PN805
THE COMMISSIONER: How do you see the disease being treated from here on?
PN806
MR SHORT: Well, I understand that the union will be putting to you that there is nothing to deal with, there's no evidence of anything happening, so I look forward to that submission.
PN807
THE COMMISSIONER: Well, I'm particularly concerned, of course, about several pages of occ health and safety issues up there. That is the particular concern I have. I mean, the industrial issues are one thing, the occ health and safety issues are another. How would you see those OH&S issues being addressed from here?
PN808
MR SHORT: Well, as I understand it, Commissioner, you set in place a process for the unions to put their claim, KBR to respond and KBR responded.
PN809
THE COMMISSIONER: So now you would say the matter is - - -
PN810
MR SHORT: Isn't it back in the union's court?
PN811
THE COMMISSIONER: The matter is back in the union's court.
PN812
MR SHORT: Yes.
PN813
THE COMMISSIONER: Very well. Anything further?
PN814
MR SHORT: I think that covers it, Commissioner.
PN815
THE COMMISSIONER: Mr Watson?
PN816
MR WATSON: Commissioner, I actually think that you do have the power to make the order on WMC and on the contractors and I'm sure that section 127(1) and (2) gives you that power and the only part that I would agree with with Mr Short is it would be seen, I think, as maybe not a denial of natural justice but certainly not consistent with natural justice that you issue orders on contractors who have not been present in the hearing, whether or not they - - -
PN817
THE COMMISSIONER: Yes, I understand the problem with that, yes.
PN818
MR WATSON: That does not prevent you from issuing the order in the matter that you were discussing with Mr Short and then providing an opportunity for those contractors to exercise their right to natural justice. So we actually agree with the Commission on this. Commissioner, I think we have had an exercise today since - we started at 2.30, I can't recall - exercise today of how not to resolve a dispute that exists between workers, their employers and workers that are assisted by their unions. In fact we've got a classic example of a description today of how to stay as far as possible away from trying to resolve a dispute.
PN819
In fact, the duration of the dispute was only as long as that duration was and any blockade that emanated from that dispute was only emanating for exactly that same reason, exactly that same reason, that those that had the power available to them to take appropriate and necessary steps to resolve the dispute didn't want to or in any event failed to do so. I think that was evidenced by the last meeting before this Commission.
PN820
I think first and foremost that we were going to come here today and immediately argue that there was no jurisdiction at all for you to hear this matter on the basis that, as you well know, Commissioner, that there is no industrial action occurring and that was available on the evidence. There is no impending industrial action, there has been no evidence of threat of industrial action and there's been no evidence of probability of industrial action put before this Commission. I'm not surprised at that because there is no industrial action taking place, pending, threatened or probable.
PN821
THE COMMISSIONER: Well, there have been - in the evidence there have been opinions put forward, haven't there?
PN822
MR WATSON: Perceptions and opinions.
PN823
THE COMMISSIONER: There are opinions put forward as a result of the context of events over the last month or two, so that is evidence. Now, what the Commission makes of that evidence is, of course, another thing.
PN824
MR WATSON: That is right. That is tantamount to saying that the fact that the dockers had a fight with Patrick Stevedoring back in the late 20th century that history suggests that there's likely to be another one. I mean, that is ludicrous. We may as well go back to Thatcher's Britain and the coal miners. The fact that there was a stand by the coal miners against the Thatcher government back in, I think, 1972, '74, and there's likely to be another one. The only other evidence that was put before the Commission and you are quite right, Commissioner, you said there were some opinions expressed, those opinions were expressed on the basis of individual union officials' demeanour.
PN825
I think my demeanour suggests that I'm a nice guy. I don't know how Clive or Mr Nelson have deduced such horrible things about me but I will no doubt find out in due course. Sir, I think following those reasons you shouldn't make the orders, but let us go back to where we started about the jurisdiction. We have put before you that the advice consistently throughout the dispute and our attempts to get involved in the dispute from a perspective of trying to assist our members in resolving it and thereby assist Western Mining and KBR and all the contractors.
PN826
We could have come in here and said: you don't have jurisdiction and we insist that you rule on that before you proceed any further. We made a conscious decision - in fact I think we said that on Friday afternoon straight after we left the picket line and not turned up on Saturday morning and left you all sitting here twiddling your thumbs with no recorders, etcetera, but we didn't. We were conscious that at any point in time, even if there had been an acceptance of the recommendation, the return to work, lifting of the blockade, commitment to not participate in any industrial action for the duration of the period between the hearings before the Commission which finished, I think, on the 10th and including plus 48 hours thereafter.
PN827
We did all that and we thought: well, at that point in time, given those circumstances, it is really open to Mr Short on behalf of Western Mining to actually withdraw the application because - instead of withdrawing the application they got what they want, they have cleared out significant numbers of the contract list, window seats we call them, that is what the members are calling them. There's a significant reduction in the number of people there that were involved in the dispute, so they have got what they want.
PN828
I'm a pragmatist, I think that would have been somewhat smart. We were hoping they didn't, hoping they didn't, and that is the very reason why we didn't come here straight up today or last Saturday or any other time before this Commission and say: you have no jurisdiction because there is no disputation taking place. There's no impending, probable, threatened or otherwise. Because we felt that there is a way forward and if we stop worshipping the legislative elements of the Workplace Relations Act and try to deal with the basis of the dispute there was a hope for them workers in Roxby Downs.
PN829
The horrible scenario is in examples that we have put before you off record in those without prejudice meetings that we had before you chaired by yourself, Commissioner. I can assure you we didn't make them up. I can assure you we didn't embellish them. We do concede that - - -
PN830
MR SHORT: Hang on, hang on, sorry, you have been asked to take into account all of our prejudice discussions. You can't have it both ways.
PN831
MR WATSON: We did, because we felt: well, we're before the Commission, we arrive there, as has been conceded in the final submission, the summing up by Mr Short, we arrived there after the dispute had commenced. We weren't involved in creating it. I think the usual words that exist is "inciting, encouraging" or various other things, we've seen plenty of them. We weren't involved in that, that has been conceded by Mr Short. We actually arrived on site and went to a meeting and found out what the dispute was about.
PN832
Since then we have sort of arrived here and quite frankly it is because the strategies of Western Mining, KBR and others we haven't yet resolved the dispute and if you issue this order we are not going to, there's no doubt about that, we are not going to resolve the dispute. There is no real commitment, constructive or otherwise, on the other side and has not been since the workers up in Roxby Downs, some of which we didn't even know whether they were members of any of our unions when this dispute broke and we were hoping it would be found, but the application for orders came and we find that none of them were a member of anybody's union, that would have been real interesting, how we can be held responsible for that.
PN833
We didn't do that because we wanted to maximise the opportunity to get around the table and try and address the issues and with some will on the other side I think we could have done that under the auspices of your chairmanship or otherwise. It has not happened. It was interesting that despite the fact that Mr Short conceded that we weren't involved on 27 January that we came there, we picked it up and we ran with it. We managed it. Yet the evidence of his own witnesses and the reason we didn't bring any witnesses, we didn't think we would need any. The evidence of his own witness, Mr Starr, confirmed in his evidence that every attempt was made by the unions to seek a result.
PN834
It was confirmed in Mr Nelson's evidence for Western Mining Corporation that attempts were made to hold discussions to resolve. In fact we rejected the discussions, the attempts that were made, and we rejected, refused even, to provide the simple thing like a name and a phone number to try and find someone from KBR that we might approach. In fact the submissions also confirmed that the hearing that was before the AIRC on Friday, 30 January, confirmed that what we were doing there was attempting to gain a resolve and I think your involvement, Commissioner, led to what was actually described I think by Mr Short as a circuit breaker, your recommendation.
PN835
I think that our integrity as unions and union officials and our credibility has been laid out in the last 10 or 14 days for all to see, the integrity and credibility of our members. That is displayed by the acceptance of the recommendation, the recommending of the recommendation as described by Mr Nelson with meetings held at the gate straight after the receipt of the fax from Mr Nelson and compliance with the recommendation. I'm somewhat perturbed at the 48 hours being put to you in the submission from Mr Short as a threat, like the 48 hours after it breaks down something will happen. That is the way he put it to you in submissions. He didn't put any evidence to that during the course of the hearing but he certainly put sufficient inference on that to suggest that 48 hours after 10 February's meeting before you I think that something is going to happen, a threat.
PN836
I would just like to remind the Commission that the 48 hours was proposed by Mr Short. Mr Short proposed the best part of the recommendation or the basics of the recommendation that you finally handed down, Commissioner. He proposed the 48 hours and we willingly and immediately accepted and agreed it was appropriate to have 48 hours straight after any breakdown in negotiations. All we demanded, claimed, begged, sought from the Commission was that the recommendation contained a commitment by the Western Mining Corporation and/or KBR to facilitate negotiations around resolve of the dispute, no more, no less. I think it is history now to suggest that that didn't really happen.
PN837
We go to the issue of party. The party is contained within the definition, the definition within the Act in section 4. Party, and this is despite the fact that Western Mining had told us already in evidence and previously before that they are not a party to anything whatsoever to do with the dispute that was taking place up in Western Mining. We talked about a party in the Act, section 4, and it says:
PN838
In relation to an industrial situation means ...(reads)... affected by a situation.
PN839
It is on public record that Western Mining's comments, they are not affected, they are not affected by this dispute. It is on record. It was put on record throughout the meeting. In fact it is their only comment other than to say: there's 300 disgruntled union members - I've got to tell you it is less than that - 300 disgruntled union members being stared at by the unions but there's 1000 non-unionists working on this site happy.
PN840
MR SHORT: Commissioner, I don't want to interrupt the flow but I will. There's no evidence of any of this.
PN841
THE COMMISSIONER: I will take it all into account.
PN842
MR SHORT: I'm sure you will, Commissioner.
PN843
MR WATSON: So they claim to be a party affected by a situation and yet the public face says they are not affected. We go to industrial situation and we end up chasing our tail because we talk about an industrial situation means a situation that if preventative action is not taken may give rise to an industrial dispute of the kind referred to in paragraph A of the definition of industrial dispute or a demarcation dispute, etcetera. So we go back then to an industrial dispute and we talk about:
PN844
An industrial dispute including a threatened, pending or probable industrial dispute...
PN845
And it goes on and I'm sure you know the rest.
PN846
THE COMMISSIONER: Yes. Just to break in, in regard to 127(2) when it talks about a - it is not a party who is directly affected, it is actually a person who is directly affected.
PN847
MR WATSON: I think the evidence in the argument that has been put by Western Ming is they are a party affected and that has been consistent since Friday.
PN848
THE COMMISSIONER: Well, whether it is - whether they are a party or whether they are not, the issue is whether they are a person directly affected or likely to be directly affected.
PN849
MR WATSON: I think - an applicant in the form of a party, I don't think it is available to the Commission or to the applicant at this stage to change the application and say: we now want to apply as a person, and I think it is probably unavailable to you, Commissioner. Your reference to - the reference to industrial action not including the action - if action was based on reasonable concern by the employer, by an imminent risk to their health - his or her health or safety, it is a very important issue and you have to take into consideration, besides the obvious, there's no jurisdiction for you to give the orders because there's no industrial action.
PN850
I think it is about time the Commission took into consideration how to move forward and resolve disputes properly rather than leave them out there just because the legalities say you can't do this or you can't do that. It just creates more illegality in most cases, I think. The Commission has got a role in resolving disputes and should actively pursue that role. Throughout the whole of the dispute the information and advice we were provided that started the dispute was all occupational health, safety and welfare on site and off site. That was all the information we got. It was almost a secondary issue that was raised by some of the contractors that there had been for some time disgruntlement, an undercurrent or underlying disgruntlement.
PN851
MR SHORT: Sorry, again there's just no evidence for this and I object to this being put from the bar table. If Mr Watson wanted to give evidence he should have done so. Don't do it now.
PN852
MR WATSON: I'm sure you can attribute the weight that you apportion to it on the basis from the bar table.
PN853
THE COMMISSIONER: Yes. Mr Short's point is taken.
PN854
MR WATSON: The issue - we provided the employers with advice that it was really a dispute that was broadly about occupational health and safety - health, safety and welfare, but there was an undercurrent and had been for some time in some of the contract areas that there was inequity, there was poor pay and conditions.
PN855
MR SHORT: I'm sorry, Mr Watson is just continuing on regardless. This is inappropriate and I object.
PN856
THE COMMISSIONER: Yes, I think you can probably cut some of that short, Mr Watson. Just confine yourself to what is actually before the Commission.
PN857
MR WATSON: I'm coming to that point, Commissioner. So to try and summarise it as follows, that the evidence of the witnesses and the submissions of Mr Short is trying to persuade you that because of such things as the demeanour in the past of - the recent past I should say - of certain union officials, the opinions of Mr Starr and Mr Nelson, the fact that there's claims remaining against a number of companies, that there is action pending, probable or otherwise just cannot stand. There is insufficient evidence and even if you were to consider my demeanour to be evidence, I think you would find that that varies depending on the time of day and the weather.
PN858
So it would be very unsafe, very courageous to rely on that kind of evidence. More importantly, in the final questioning of Mr Starr by Mr Short, Mr Starr's evidence is that all occupational health, safety and welfare issues have been addressed. Now, Mr Starr took an oath. If that is true, and I'm not suggesting it is not, I'm saying if it is true then by their own evidence they have removed a significant part of what gave rise to the dispute, while at the same time trying to have you believe that there is pending, probably, threatened or otherwise industrial action.
PN859
THE COMMISSIONER: Well, they would say they have removed the cause for the dispute but not necessarily the potential for the dispute, I think that is - - -
PN860
MR WATSON: At the same time on those underlying industrial matters their evidence is that each of the employers involved have in-term instruments of agreements that protect them from those claims. Well, if those claims are pursued then they will employ Mr Short no doubt and Mr Starr and take the necessary steps to be before this Commission and ensure we can't pursue them. It is open to them to do that. It is not open to them on the evidence, it is not open to this Commission on the jurisdictional issues to issue an order in the manner sought and the Commission should dismiss the application.
PN861
If the Commission dismisses the application I invite the Commission to suggest that maybe that round table that was the focal point of the dispute from the beginning and right up until this time is something that may be strongly recommended by the Commission to avoid unnecessary disgruntlement leading to anything in the future. Thank you, Commissioner.
PN862
THE COMMISSIONER: Anything arising, Mr Short?
PN863
MR SHORT: Just briefly. That last point of Mr Watson about further discussion is interesting in light of my understanding that it being the union that ended the discussions with KBR. That is an aside. The suggestion that Mr Starr's evidence should be accepted that all the OHS issues were addressed would still leave the industrial issues live but would remove substantial weight from your concern about those 67 points warranting a qualification to the order.
PN864
THE COMMISSIONER: I'm sorry, just say that again, sorry?
PN865
MR SHORT: As I understood Mr Watson, he was saying that Mr Starr had given evidence that all of those issues had been addressed.
PN866
THE COMMISSIONER: Yes, are addressed.
PN867
MR SHORT: Therefore the likelihood of disputation was substantially reduced. What I put to you is if Mr Watson wants to accept that Mr Starr is right about that, then the qualification that you were concerned about regarding OH&S type matters should you grant an order disappears. That is any weight you were thinking of attaching to those issues having been raised, Mr Watson is urging you to accept that those matters have been addressed.
PN868
THE COMMISSIONER: Well, he was saying that that was Mr Starr's evidence.
PN869
MR SHORT: And he wasn't saying it was untrue and has not called any evidence to the contrary and he has not sought to challenge it. You will take that into account, Commissioner.
PN870
THE COMMISSIONER: Well, it depends what "addressed" means as well. Answered? Yes. "Addressed" can also mean finalised and I think we can probably safely say that - well, we can't safely say anything, we don't know whether those OH&S issues have been finalised or whether they are still on the backburner, do we. They have certainly been addressed in the sense that they have been responded to.
PN871
MR SHORT: The evidence of Mr Starr was to the effect that as far as he was aware they are a dead letter. The reference to 48 hours qualification, if I could just mention that. You recall that it was clearly indicated to you at the Commission hearing that after discussions broke down we wanted time to get back and get orders before action was taken. We made it very clear that is what we wanted to do and that is why we wanted time and that is exactly what we have done. Now, as Mr Watson put to you, paraphrasing, if the unions are doing the wrong thing he is sure that I or Mr Starr will take action and bring it back to the Commission and do something about it. Well, that is exactly what we are doing.
PN872
They have shown that they want to comply with the Act on their conduct. They have shown that industrial action will be maintained in breach of dispute procedures and they say: well, stop worshipping the legislative basis, paraphrase, don't worry about what the Act says. Mr Watson said, "But people didn't take the necessary and appropriate steps to resolve the dispute". Well, that is right. The dispute procedures should have been followed and they weren't and we have no confidence that they would be in the future, nor can you.
PN873
The right of entry which has been asserted for 1 o'clock tomorrow by both unions at the identical time to multiple contractors on that site cannot be ignored as being some strange coincidence that has no relation to the unrest that has taken place on site. The unions' involvement at this site has not gone away, they are seeking to be there tomorrow. So let us not pretend that this is some non issue and nothing is ever going to happen. The evidence could not inspire you with any confidence to that effect.
PN874
What I understood Mr Watson was putting was that the unions had been seeking a resolution and it was a pity that no one would talk to them to get that resolution with the consequence that the action continue. What that overlooks is the only action that was being taken was unlawful, was not protected, was not in compliance with disputes procedures and was in support of demands over and above in-term industrial instruments. Now, that exposes people to penalties in respect of AWAs. It actually says you can be penalised for seeking more in respect of enterprise agreements. You are well aware, Commissioner, that it is unlawful to pursue demands for increased rates and conditions during the term of an industrial instrument while that instrument is in force.
PN875
That is exactly what has happened and the justification for it is: well, no one would talk to us about giving us what we wanted. Absolutely unacceptable, Commissioner. I urge that those as matters for you to take into account these orders ought be granted. I will say no more.
PN876
THE COMMISSIONER: Gentlemen, I will hand down a decision in this matter at 11 am tomorrow or as soon thereafter as is reasonably practicable. I understand, Mr Watson, you are in a matter before Commissioner Foggo tomorrow?
PN877
MR WATSON: Probably next door, Commissioner, yes.
PN878
THE COMMISSIONER: I will organise with our associates to do something to enable you to be present and I'm not quite sure what but we will tick-tack somehow or other, but 11 o'clock tomorrow morning or as soon thereafter as is reasonably practical.
ADJOURNED UNTIL THURSDAY, 13 FEBRUARY 2003 [6.37pm]
INDEX
LIST OF WITNESSES, EXHIBITS AND MFIs |
MARK WILLIAM NELSON, SWORN PN71
EXAMINATION-IN-CHIEF BY MR SHORT PN71
EXHIBIT #WMC1 NEWSLETTER DATED NOVEMBER 2002 PN90
EXHIBIT #WMC2 BUNDLE OF LETTERS, FACSIMILES AND THE LIKE FROM 21/11/2002 THROUGH TO 2/12/2002 PN147
EXHIBIT #WMC3 TRANSCRIPT OF RADIO DISCUSSION PN215
EXHIBIT #WMC4 PRINT-OUT FROM AMWU WEB SITE PN332
EXHIBIT #WMC5 COPIES OF TWO FAX COMMUNICATIONS FROM MR WATSON TO MR NELSON PN339
EXHIBIT #WMC6 COPY OF NEWSLETTER TO ROXBY DOWNS RESIDENTS PN346
EXHIBIT #WMC7 JOINT NEWSLETTER FROM AMWU AND CFMEU, ROXBY DOWNS DISPUTE UPDATE PN351
CROSS-EXAMINATION BY MR WATSON PN354
RE-EXAMINATION BY MR SHORT PN463
WITNESS WITHDREW PN471
CLIVE JONATHON STARR, AFFIRMED PN479
EXAMINATION-IN-CHIEF BY MR SHORT PN479
EXHIBIT #WMC8 BUNDLE OF DOCUMENTS PN557
EXHIBIT #WMC9 FACSIMILE DATED 30/01/2003 FROM MR WATSON TO BUILT ENVIRONS PN562
EXHIBIT #WMC10 FACSIMILE DATED 31/01/2003 FROM MR WATSON TO MR STARR PN564
EXHIBIT #WMC11 FACSIMILE DATED 31/01/2003 PN568
CROSS-EXAMINATION BY MR WATSON PN583
RE-EXAMINATION BY MR SHORT PN654
WITNESS WITHDREW PN677
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