C2003/1071, Transcript of Proceedings [2003] AIRCTrans 854 (18 March 2003)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 4, 179 Queen St MELBOURNE Vic 3000
(GPO Box 1114J MELBOURNE Vic 3001)
DX 305 Melbourne Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS


O/N VT10240

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER TOLLEY

C2003/1071

FLUOR GLOBAL SERVICES AUSTRALIA
PTY LTD

and

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

Notification pursuant to section 99 of the Act
of a dispute re the withdrawal of labour from the site

MELBOURNE

10.08 AM, THURSDAY, 27 FEBRUARY 2003

PN1

MR M. McSWEENEY: I appear on behalf of Fluor Global Services Australia Pty Ltd, together with MR J. HAYLOCK, Site Manager for Fluor Global Services at Hazelwood Power Station.

PN2

MR J. MADDISON: I appear on behalf of the CFMEU.

PN3

MR M. ADDISON: I appear on behalf of the Australian Manufacturing Workers Union, together with MS K. WILD.

PN4

THE COMMISSIONER: Thanks. Mr McSweeney.

PN5

MR McSWEENEY: Thank you, Commissioner. Commissioner, I propose to be fairly brief this morning. This notification pertains to two related issues, the first one being the withdrawal of labour on Tuesday 25 February by Fluor Global Services employees at Hazelwood Power Station. Commissioner, on that morning at approximately 10 past 7, we were notified by one of our delegates that a mass meeting had been planned for 10 am that day of all power industry maintenance contractors employees.

PN6

At approximately a quarter to 10, employees of Fluor left site, and we believe attended that mass meeting. We were notified at approximately 1.30 on the same day that they would not be returning to site. The notification included that one of the reasons why they would not be returning to site was over the issue of multi-skilling. I should note that we currently, and have not had for some time any issue to do with multi-skilling between Fluor and its employees at Hazelwood Power Station.

PN7

Quite clearly, Commissioner, that meeting and the withdrawal of labour was unauthorised, and any action, we say, quite clearly is in breach of not only the certified agreement, but in breach of the Workplace Relations Act. And separately on that matter, Commissioner, we would seek a direction under 111(1)(t) of the Workplace Relations Act that any further action for the period of negotiations leading up to the expiry date of our current certified agreement not occur.

PN8

The second matter, Commissioner, that I bring to you, as for the reason for bringing the notification, relates to what we believe is the deliberate attempt by the unions to frustrate the bargaining process. In support of that statement, we have sought to facilitate negotiations - - -

PN9

THE COMMISSIONER: Excuse me, Mr McSweeney. Who are you, sir? Yes, well, you don't stagger in here like a half bottle of you-know-what. Walk in properly, and sit down and be quiet.

PN10

MR ............: No worries.

PN11

THE COMMISSIONER: If it's amusing to you, you can wait outside.

PN12

MR ............: (Inaudible)

PN13

THE COMMISSIONER: Good, thanks for that.

PN14

MR McSWEENEY: We apologise for that, Commissioner.

PN15

THE COMMISSIONER: Yes.

PN16

MR McSWEENEY: Commissioner, as I was saying, we believe that it is a deliberate attempt to frustrate the bargaining process. In early December we wrote to the unions seeking for negotiations to commence. Prior to that, we had had a number of planning sessions with our employees on the enterprise bargaining process that we were about to enter into.

PN17

On 12 December we met with the unions to have our first negotiation meeting. At that meeting the parties discussed obviously the path going forward, and it was indicated to the company at that stage that a log of claims was due in the immediate weeks after 12 December. At that stage we discussed that obviously we would meet with the unions following the Christmas and New Year break.

PN18

Commissioner, on 7 January we wrote to the unions outlining our request to have the second negotiation meeting. We gave them three dates in which to make themselves available for that second meeting. No response was forthcoming, other than we received a letter from the AMWU and the FEDFA that indicated that both of those unions were not prepared to enter into enterprise bargaining negotiations until all the local issues had been resolved.

PN19

We had previously understood that that was their position. However, they obviously formalised it by way of letter. Our discussions with them had been along the lines of, what were those local issues. There were no local issues forthcoming. So on 28 January, again we wrote to the three unions, and indicated to the unions that we were obviously unsatisfied with the approach that they were taking. Obviously we were seeking a genuine and reasonable attempt to bargain.

PN20

At that stage we again proposed to have three further meetings, and pleasingly we did get a response at that time. The response was that we would organise for a meeting to occur on 14 February. We attended a negotiation meeting on 14 February where the company outlined its list of EBA improvement initiatives that it was seeking. It was informed to the company that the unions had not yet endorsed their log of claims, despite there being a two month period in which we first discussed the issue of enterprise bargaining and seeking a log of claims from the unions.

PN21

They indicated at that stage that it still had to go to a delegates meeting, and then to a mass meeting. On Thursday of last week, following that meeting, the company wrote to the unions outlining that the company did not believe that a mass meeting was necessary in order for the unions to canvass the views of our workforce, and that it was destructive to normal work.

PN22

At that stage we also made an offer, a formal offer to the unions that we would make a time and place available on site for the unions to come and meet with our employees, in order for the purposes of seeking endorsement of that log of claims. As an alternative we also made a formal offer that said that the delegates could attend that mass meeting on behalf of our workforce, and that that would be an authorised attendance.

PN23

We had no response to that letter, Commissioner. As I say, they were the events that led up to Tuesday morning's notification to the company that there was a mass meeting on that day, and a subsequent withdrawal of labour. Commissioner, we say quite clearly that that is more than enough evidence of the union's attempt to frustrate this process.

PN24

One of the things that we are seeking from the Commission today is perhaps assistance in facilitating a process for the negotiations to continue. We are quite concerned, given that we started this process some two months ago, and we are not yet at a stage where we understand fully, and have had explained, outlined and presented to us, their log of claims. That we are fast approaching the expiry of the EBA, which I understand is the unions' prerogative, but quite clearly we are here to try and bargain in good faith, and genuinely, and we would seek the Commission's assistance in that process. Thank you.

PN25

Sorry, Commissioner, before I rest, I can make available to the Commission copies of those letters, if need be.

PN26

THE COMMISSIONER: Yes, thanks. Mr Maddison.

PN27

MR MADDISON: Thank you, Commissioner. Commissioner, unfortunately, the Melbourne office did not receive a copy of the actual notification of listing. Mr McSweeney did provide me with an opportunity to peruse that prior to the hearing commencing.

PN28

THE COMMISSIONER: Mr Maddison, every time an official of the CFMEU comes before this Commission, they get up and claim they don't know what is going on, or they haven't received a copy of the notifications. I have never doubted your word in your appearances before me, and I don't at the moment, but it is starting to wear a bit thin.

PN29

MR MADDISON: Commissioner, I didn't - - -

PN30

THE COMMISSIONER: I don't ask you to comment. I make the comment.

PN31

MR MADDISON: Commissioner. I am only setting out the position of the union and my position in respect to that.

PN32

THE COMMISSIONER: Yes.

PN33

MR MADDISON: Mr McSweeney did say that it wasn't faxed to the Melbourne office of the union, which might explain the reason why I didn't receive a copy of it.

PN34

THE COMMISSIONER: It was faxed to the local organisers.

PN35

MR MADDISON: Yes.

PN36

THE COMMISSIONER: Which is the normal practice.

PN37

MR MADDISON: Well, the normal practice in my experience, Commissioner, is it is faxed to the Melbourne office, notifications of disputes.

PN38

THE COMMISSIONER: So the next time Mr Wainwright comes in here, and tells me that the office hasn't received it, and we say it has been faxed there, I may have a suspicion about his veracity.

PN39

MR MADDISON: I am not suggesting that at all. I am only - - -

PN40

THE COMMISSIONER: Let us move on.

PN41

MR MADDISON: I am only saying the position in respect of this matter, Commissioner. Mr McSweeney outlined a number of things that are not spoken about in the notification.

PN42

THE COMMISSIONER: Yes. I might add, I - - -

PN43

MR MADDISON: There is a number of matters, including the multi-skilling issue which he raises. The whole history of negotiations, and other documents that he has referred to today. Commissioner, he did ask directions pursuant to 111(1)(t). We would say that in the circumstances, if you were inclined to pursue that, we would like an opportunity to come back and address the Commission on that matter, as to why you should or should not do that, after receiving further instructions that were not disclosed in the notification. I mean no criticism of Mr McSweeney.

PN44

THE COMMISSIONER: The Commission will only deal with the matters disclosed in the notification, Mr Maddison. It won't be dealing with peripheral matters.

PN45

MR MADDISON: Sorry, Commissioner?

PN46

THE COMMISSIONER: The Commission will only be dealing with the matters disclosed in the notification.

PN47

MR MADDISON: Yes, and - - -

PN48

THE COMMISSIONER: So you can proceed on that basis.

PN49

MR MADDISON: Thank you, Commissioner. Commissioner, there is no allegations of Mr McSweeney that there is anything further threatened, or that there is any apprehension from the company that there may be, without conceding what happened on this occasion, that there would be any further instances of any industrial action. We would say on that basis that the Commission should not be moved to issue any directions as sought by the company in this matter.

PN50

In respect of the other things sought by Mr McSweeney, assistance to facilitate the process, obviously Mr McSweeney is at liberty to use other provisions of the Act, and I refer specifically to 170NA. If he seeks to do that, he is at liberty to do that. We say in those circumstances, in our submission there is nothing further that the Commission should do in respect of the notification today.

PN51

THE COMMISSIONER: What about the breaching or the disputes procedures in the EBA, and the walking off the job in contravention of the Act?

PN52

MR MADDISON: Again, Commissioner, if this is the case, again Mr McSweeney and the company - - -

PN53

THE COMMISSIONER: Well, they did walk off the job. You are not arguing they didn't go off the job, are you?

PN54

MR MADDISON: I am making no submissions about that, Commissioner. Mr McSweeney is obviously at liberty to pursue other legal remedies in respect of that, but we don't say that this is the vehicle to pursue that.

PN55

THE COMMISSIONER: And so is the Commission on its own motion.

PN56

MR MADDISON: We would say, Commissioner, if you were inclined to do something on your own motion, that we would like to know what that may be, so we could address you.

PN57

THE COMMISSIONER: You can be sure you will know.

PN58

MR MADDISON: I appreciate that, Commissioner.

PN59

THE COMMISSIONER: Thank you. Is that it?

PN60

MR MADDISON: Yes, Commissioner.

PN61

THE COMMISSIONER: Thank you. Yes, Mr Addison.

PN62

MR ADDISON: Yes, thanks, Commissioner. With regard to the matters that have been raised this morning, there is an intention on the part of the unions to reach an industry settlement with regard to enterprising bargaining in the Latrobe Valley. There are meetings which are scheduled. There is a meeting which is scheduled on 19 and 20 March with Alstom. Fluor is invited to that meeting, and there will be negotiations - - -

PN63

THE COMMISSIONER: Did you say with Alstom?

PN64

MR ADDISON: Alstom. I believe you have got Alstom in front of you this afternoon, Commissioner, at 1 o'clock.

PN65

THE COMMISSIONER: And Diamond Power in the middle. How surprising.

PN66

MR ADDISON: And Diamond Power, indeed. Fluor invited to that meeting. There is no difficulty with Fluor coming to that meeting. I have had an opportunity to talk to Alstom. Alstom would not object to Fluor coming to that meeting. So there is an opportunity to progress the matters there. There is an open forum, and we would be seeking to resolve the matters.

PN67

Now, Commissioner, as you know, Latrobe Valley power industry contractors, whilst they may have separate agreements in a de facto sense, there is an industry agreement effective in the Latrobe Valley, apparently, and we would be seeking to continue that practice.

PN68

We say that we are at liberty to consult with our members. Indeed, the Act mandates that we be democratic. The Act mandates that we be accountable to our membership. We called our membership together on an industry basis last Thursday to endorse a log of claims.

PN69

THE COMMISSIONER: Mr Addison, when was the meeting of last Thursday arranged?

PN70

MR ADDISON: On the Wednesday afternoon, I believe.

PN71

THE COMMISSIONER: It was just arranged on the Wednesday afternoon, and happened on Thursday?

PN72

MR ADDISON: Yes. Yes, it was arranged on the Wednesday afternoon. The stewards rang around Wednesday evening, and asked to come to the meeting on the Thursday. I met with - myself and Ms Wild, actually - met with Mr Warren on Wednesday afternoon. Mr Warren is an apology today, Commissioner: he is involved in another matter, which makes it impossible for him to get here. So he apologises for that.

PN73

The meeting occurred on Thursday. The log of claims was endorsed by our members. There were some concerns that were raised at that meeting, and certainly multi-skilling was one of the concerns. That concern is a concern particularly for members with Silcar, rather than Fluor. That matter may or may not eventually end up before you, Commissioner, but at this point in time we would seek to address it.

PN74

THE COMMISSIONER: Not if I can help it.

PN75

MR ADDISON: We would seek to address it. People decided to withdraw their labour, and went home for the day. People returned to work the next day. There is no industrial action happening, threatened, pending, probable, or any other adjective that I might put, currently in the Valley. There is a meeting scheduled, as I said earlier, and we will be seeking to pursue an agreement with all of the contractors in the Latrobe Valley over the next month.

PN76

The agreements are current; terminate on 31 March, as I am instructed, all of them. And we would like to have an agreement in place by the end of March, to simply pick up and go forward. A draft agreement has been provided by the unions to the contractors, on my instructions. Fluor are shaking their heads, but I am instructed that the draft agreement has been provided. If it has not been, it will be very, very shortly, to Fluor.

PN77

Certainly Alstom have got a copy of it. And we will go forward from there.

PN78

We would say any direction is premature at this point in time.

PN79

There is no action threatened. There is no action happening. We would say a direction should not issue from the Commission. If anything, the Commission should give a recommendation that the parties sit down, consult, and resolve the issues. If the Commission pleases.

PN80

THE COMMISSIONER: Thank you. Mr McSweeney, briefly.

PN81

MR McSWEENEY: Thank you, Commissioner. I just propose to address only a few matters. I guess the fact that the organisers are here today speaks volumes for their approach to this whole process. The second thing quite clearly is that we have not been invited to attend a meeting on 19 and 20 March.

PN82

THE COMMISSIONER: You have now.

PN83

MR McSWEENEY: We have actually, up until now, have not been advised that they were seeking an industry agreement. Might I also add that informally in discussions with Mr Gardiner from Alstom, he indicated that that meeting on 19 and 20 March was for enterprise discussions with Alstom only. And he quite clearly made comment to me that I could raise that with the Commission, if that issue was raised in these discussions, or in the matter before the Commission today.

PN84

I would also say, Commissioner, the fact that that meeting that was the shop stewards meeting that was said to be held on the Thursday, was actually held on the Friday, and we did have advance notification of that and in good faith we allowed our delegates to go. But quite clearly, I don't propose to discuss the merits of the Act with regard to the union's ability to consult with its members, but it quite clearly doesn't involve them absenting themselves from work during normal work hours. Thank you.

PN85

MR ADDISON: Commissioner, just one issue of clarification.

PN86

THE COMMISSIONER: Yes, Mr Addison.

PN87

MR ADDISON: Just one issue of clarification as I can't let that go by. I didn't say an industry agreement, I said an industry outcome.

PN88

THE COMMISSIONER: I wrote down "outcome".

PN89

MR McSWEENEY: Commissioner, I will strike "agreement" from my notes and refer to "outcome". If I could also touch on one other point, Commissioner, before I finish. I notice that in your comments, Commissioner, you said that you were only prepared to deal with those matters included in the section 99; do I take it from that, that you are not going to assist the company - - -

PN90

THE COMMISSIONER: I didn't say that. Don't start presuming what I am going to do; it is very dangerous, you know that, you have been here often enough.

PN91

MR McSWEENEY: Sorry, Commissioner. Thank you.

PN92

THE COMMISSIONER: Well, gentlemen, I don't care if people only walk off the job once for half-a-minute or an hour or half-a-day. They have breached the Act and they have breached the EBA.

PN93

So pursuant to section 111(1)(t) of the Workplace Relations Act the Commissioner directs there will be no more breaches of disputes procedures in agreements which leads to a breach of the Act. The parties will arrange meetings at a mutual time between themselves; they are encouraged to do so. It is not for the Commission to decide what sort of outcome the parties are seeking, that is between the parties, the Act provides for it. The Commission is not going to condone people just deciding they are going to walk off a job for some reason allegedly for some meeting that was only arranged late the afternoon before, something I find quite amazing, and if there are any further breaches of the agreement or the Act the Commission will decide how to deal with it.

PN94

The Commission is adjourned. Good morning.

ADJOURNED INDEFINITELY [10.31am]