C2003/2512, Transcript of Proceedings [2004] AIRCTrans 100 (8 January 2004)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 6, 114-120 Castlereagh St SYDNEY NSW 2000
PO Box A2405 SYDNEY SOUTH NSW 1235
Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS

O/N F8409

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER HARRISON

C2003/2512

APPLICATION FOR AN ORDER TO STOP
OR PREVENT INDUSTRIAL ACTION

Application under section 127(2) of the Act
by Boral Formwork and Scaffolding Pty Limited
for an order to stop or prevent industrial action
at the company's operations at 2A Mavis Street, Revesby

SYDNEY

11.55AM, TUESDAY, 16 DECEMBER 2003

PN1

THE COMMISSIONER: Thank you, can I have the appearances please.

PN2

MR G.J. HATCHER: May it please the Commission, I seek leave to appear with my learned friend MR E.J. NEWELL for the applicant.

PN3

MR S. MARSHALL: I appear on behalf of the Construction, Forestry, Mining and Energy Union, New South Wales Branch and with me is the organiser, MR R. AUIMATAGI.

PN4

THE COMMISSIONER: Is there any objection to leave?

PN5

MR MARSHALL: No, Commissioner.

PN6

THE COMMISSIONER: Leave is granted. Mr Hatcher.

PN7

MR HATCHER: If it please the Commission, this is an application brought under section 127 of the Workplace Relations Act which section entitles the Commission to issue orders restraining certain conduct, those orders being prefatory to further relief being made available under the scheme of the Act in the Federal Court. The nature of the jurisdiction has been explored in some detail by a full bench of this Commission in the coal industry, in one of the few coal cases if I might observe, Commissioner, in which you didn't actually comprise part of the bench.

PN8

The leading case in my respectful submission in the area is Coal and Allied Operations v AFMEPKIU and Others, one of the others being the organisation for which my friend appears. The case is reported in 1997 Vol 73 Industrial Reports page 311. I am afraid I don't have copies, Commissioner, because of the urgency with which the application has been prepared but I will make my copy of the note available to my friend. At page 317 of the report the Full Bench identified the jurisdictional prerequisites to section 127 being exercised. They are that there is industrial action by persons sought to be bound by the order, either taking place or probable.

PN9

Secondly, that such industrial action is related to work regulated by an award and the references to section 127(1)(c) and the Commission sees that that also includes a certified agreement. Thirdly, that the application is brought by a person who is likely to be directly affected by the industrial action. So, Commissioner, our client will need to satisfy you of those three jurisdictional facts. As to those in my respectful submission it is unlikely that there will be any issue as to the three of them though we are in a position to prove each of the ingredients.

PN10

If the Commission is satisfied that it has jurisdiction the Commission then has a discretion. An order doesn't flow as of right and in the judgment to which I have referred the Commission went into some detail in analysing the exercise of the discretion. Prima facie an order would not be granted if action were clearly protected by the Commission doesn't need to satisfy itself as to whether the action is protected or not because the scheme of the Act is such that if the action is protected then the order has no effect in any event. The Commission needs to be satisfied that the industrial action is illegitimate in the sense of warranting particular sanction by the Commission so that an order would be made.

PN11

The onus in the application is an onus on the applicant to satisfy the Commission as to the jurisdictional facts and the Commission will if it is manifestly probably that the industrial action will continue and that some of that industrial action will not be protected, the Commission will exercise its jurisdiction and grant the relief sought. It is noteworthy Commissioner that in Coal and Allied, a case to which I have referred there was a bargaining period in place and there was protected industrial action taking place. The Commission will, I am sure, recall the dispute. I think the Commission as presently constituted was conciliating the dispute, that it was the Hunter Valley No.1 dispute in its early genesis.

PN12

Commissioner, in the case at hand we have an allegation or an attempt to obtain protection under the Act which we say is unsuccessful and is unsuccessful for a number of reasons. We have an affidavit which has been executed just before we appeared. Might I tender a copy of that affidavit.

PN13

I note that the affidavit is rather lengthy and what I would propose if it is convenient is to take the Commission to some of the more important aspects in it and then if it meets the commission's convenience had an adjournment in which my friend might have the opportunity to review the material and see if it is necessary to call Mr Pleasance to be available for cross examination.

PN14

THE COMMISSIONER: Perhaps I may do that but you might just complete your overview of what's happening in terms of the industrial action and I might hear a response at that stage from Mr Marshall and then adjourn.

PN15

MR HATCHER: If it please the Commissioner. Does the Commission propose marking this document.

PN16

THE COMMISSIONER: Yes, I will mark this exhibit H1.

EXHIBIT #H1 COPY AFFIDAVIT

PN17

MR HATCHER: Can I take the Commission in Exhibit H1 to paragraph 31 and the Commission sees that there was a meeting at the CFMEUs offices on 27 November at which the deponent was present. At 32 the Commission sees that in the discussion that took place at that meeting it's clear that the union had provided our client with a standard form agreement which is said not to be capable of negotiation, our client must subscribe to that agreement. Our client makes inquiries about the position of its competitors and is told that our client must subscribe to the document as it is provided notwithstanding an earlier understanding that the existing agreement would be the basis for negotiations.

PN18

Then at paragraph 33 the Commission sees that the relevant organiser attended the site on the following day, the 29th where a conversation takes place in respect of a proposed report back and meeting and then in 34 immediately following the meeting that was conducted between the organiser and the deponent there is a further conversation - I am sorry, immediately after the meeting between the organiser and the employees there is a further conversation where quite out of the blue some occupational health and safety issues arise and the course of proceedings is dealt with that in the ensuing paragraphs.

PN19

Could I then take the Commission to paragraph 45 which is on page 12. The Commission will see that after an inspection the issues were identified as aerosol spray paint cans left laying around work areas, stacked steel beams obstructing vehicle access. There was said to be an unsafe rack for securing ladders, there was said to be an unsafe tube rack at the rear of the shed and there was some unspecified issues with pallets and there is then a conversation wherein the organiser says:

PN20

The yard employees will not load and unload trucks until the safety issues have been rectified.

PN21

Mr Pleasance says;

PN22

Surely this is unreasonable as work can proceed in unaffected areas

PN23

Then it is clear that there is a ban in place and the Commission then sees in 47 that the cost of that ban is identified. Then, over the page, after a further meeting the Commission sees that the Revesby Yard employees - in paragraph 52:

PN24

Were not working because of the wet towel was apparently now precluding work in the yard area

PN25

At 53:

PN26

At approximately 845 whilst in the meeting with the CFMEU I received a call on my mobile phone from Glen Fletcher and we had a conversation to the following effect ...(reads)... they are out?---Yes.

PN27

So there was then a cessation of work and then at paragraph 66, on page 16:

PN28

On Friday the 5th the following day work recommenced in the yard but not in dock one. Revesby yard ...(reads)... they are reverting from the BSF Wet Weather Agreement to what they say were the standard award provisions.

PN29

I should say, in fact, Commissioner, on our submission that they clearly are not the standard award provisions. In any event the employees and the organiser left the site at 12.30 pm without any further discussion. Though at 12.30 the delegate had told the supervisor that the employees would probably go home.

PN30

Over the page, again, and the Commission sees in the paragraphs between that which I have just read and that which I will now read there is some discussion of the Wet Weather Agreement. It is an agreement of some standing which not surprisingly requires that work be done where work is available unaffected by the wet weather. In 74:

PN31

I attended the Company's scheduled New South Wales occupational health and safety committee meeting ...(reads)... had offered to issue to the Revesby employees umbrellas, ponchos and transport in a three-seater van to and from the store.

PN32

There ought be no doubt, Commissioner, that this is industrial action which is quite improperly sought to be engaged in under the guise of a safety dispute. Then if I could take the Commission to paragraph 84:

PN33

At 9 am on 15 December 2003 a further meeting took place and I believe from my own observation ...(reads)... they intend to meet again at 7 am tomorrow. I said, "Is that all?", he said "Yes".

PN34

Commissioner, they had a meeting this morning and they went out again. So, presently, there is no work being performed. I should draw to the Commission's attention there are two documents annexed to the affidavit. The first is annexure H, page 90.

PN35

THE COMMISSIONER: Yes.

PN36

MR HATCHER: The Commission sees that that purports to be a notice of protected action:

PN37

In accordance with the abovementioned provisions we hereby put you on notice that protected ...(reads)... which your Company conducts operations and will consist of an indefinite strike of all employees.

PN38

The Commission sees the handwritten note, that it was received at 9.11 am on the 4th which was less than three working days. There wasn't an indefinite strike commenced on the 8th. Then if the Commission goes to annexure I at page 91 the Commission will see that there is correspondence bringing to the union's attention our client's concerns as to the continuing failure to perform usual work. On 5 December, then, annexure J at page 92; a further purported notice under section 170MO. And the relevant paragraph:

PN39

Such action will commence on 15 December 2003. Will be taken at all sites at which your Company ...(reads)... will consist of an indefinite strike of all employees.

PN40

For the Commission's assistance can I simply note that at page 96 the Wet Weather Agreement is reproduced. Now, if it please the Commission, it will be our contention that the present indefinite stoppage is not protected action. And it is not protected action because it is not for the purpose of advancing claims. The evidence we would rely on for that is the evidence that the industrial action was brought, apparently by way of protest, at individual employees at Revesby being nominated as respondents to this application. At least that is what they told our client.

PN41

Further, because the action has been taking place for some time you can't excite the protection in the midst of industrial action is the contention we would advance. We rely on two cases for that proposition. The first is a judgment of Wilcox J in the Federal Court in Construction, Forestry, Mining and Energy Union and Another v Kurra Queensland Mining Limited. It may be reported in the Industrial Reports, Commissioner, but I have only got the Austlii copy and I can hand it up. It is a judgment of his Honour dated 30 September 1998.

PN42

And the other one, which I am afraid I don't have copies of but perhaps in the adjournment we could impose upon your associate's assistance to make copies available, Commissioner, if there be an adjournment. That is a judgment of Goldberg J in the Federal Court as well on 18 October 2000 in the case of PWB Anchor Limited v the AFMEPKIU. His Honour doesn't decide the issue. He had before him an application for injunctions. He simply notes that it is seriously arguable that action - in the circumstances we maintain are to be found on the evidence here - is not protected. We say that is sufficient for the Commission's purposes in granting a section 127 order. That, shortly put, is the position if it please the Commission.

PN43

THE COMMISSIONER: Mr Marshall?

PN44

MR MARSHALL: Commissioner, the position of the CFMEU in this matter is that the organiser, Mr Auimatagi undertook a safety walk on 28 November and he produced some safety ratification notices for the company, the union and the company had been in enterprising negotiations I believe, since approximately July this year. It's curious that the company have come up with annexure H to their affidavit, given that that was actually denied that that had ever been received at the time and quite clearly, we then went and served another one which is annexure J.

PN45

As you will see, the company had a full clear 10 days notice that protection action was to commence on the 15th, my understanding from the Kurra Queensland Mining case was that the notices involved had given less than three days clear notice of action, here we've got a notice served on Friday 5 December and then 10 days later more than adequately giving the sufficient amount of time that the protected action has started. Therefore, we say that the notice are effective and fully in accordance with the provisions of the Workplace Relations Acts in relation taking of industrial action.

PN46

The union has been fairly frustrated with the company's approach to the negotiations, they were given a copy of the agreement in July which they claimed not have read by October and they've been given further drafts of the agreement. The union in the intervening period between the 5th and today have been endeavouring to get an undertaking out of the company that they would agree on the wage rates before Christmas and in which case there would be no industrial action.

PN47

The company came back with an agreement to meet before Christmas on Thursday which our members saw as not good enough and therefore, - - -

PN48

THE COMMISSIONER: That is Thursday of this week?

PN49

MR MARSHALL: Yes, Commissioner. The protected action is on foot at the moment, I did have copies of those to hand up but as the other side have already done that, there is really no need to do that. I might go to Mr Auimatagi to give us more details on the negotiations that are taking place and the issues of safety which were brought up last week. We say they are all legitimate safety issues and extend well beyond the issues that the company have brought to your attention so far.

PN50

You might want to give Mr Auimatagi a little leeway insofar as it's his first appearance in the Australian Relations Commission.

PN51

THE COMMISSIONER: Just before we do, what are you relying on, the safety issue or the protection action to justify what's happened?

PN52

MR MARSHALL: Protected action, Commissioner, we say that they've been given 10 clear days notice of protected action and there's been meaningful negotiations for months and months now which our members have grown increasingly frustrated with. As we get up to Christmas the members were hoping that that agreement would be done by now and we rely on the validity of our protection action notices and say there's absolutely no grounds for the granting of section 127 orders. To do so, as the other side has already put, they would be ineffective against the protection action we are taking, anyway.

PN53

So it would be a waste of you time and our time for these orders to be issued. We say that if the company were serious about resolving this dispute and getting our members back to work as quickly as possible, they'd be sitting down with the union about the enterprise agreement and getting our people back to work. They've certainly had enough notice of this industrial action was taking place and they've chosen this course of action rather than engaging in meaningful negotiations in the meantime.

PN54

THE COMMISSIONER: What's the current situation with your members?

PN55

MR MARSHALL: My understanding from Mr Auimatagi is that there was a meeting of members this morning that received a report back as to the status of negotiations and as per the notice industrial action started this morning for an indefinite period - sorry, yesterday for an indefinite period. I believe there was a report back meeting this morning and the industrial action is ongoing, Commissioner, as per section 170MO of the Act.

PN56

As I said, I repeat my earlier submission, there really is no solid grounds for the issuance of a section 127 order in the circumstances, that we have a valid protected action notice in place.

PN57

THE COMMISSIONER: Is it just the Revesby site or are there are other sites affected?

PN58

MR AUIMATAGI: All the sites.

PN59

THE COMMISSIONER: When do you plan to meet again?

PN60

MR AUIMATAGI: I'm not sure, Commissioner, there was a suggestion Thursday this week was put but I've as yet not received any confirmation.

PN61

THE COMMISSIONER: No, I mean, you and your members, when do you plan to meet again?

PN62

MR AUIMATAGI: Tomorrow morning, I think 11 o'clock tomorrow morning.

PN63

THE COMMISSIONER: Where at?

PN64

MR AUIMATAGI: It will be at the Revesby outside premises.

PN65

THE COMMISSIONER: Did you want to add anything to what Mr Marshall said?

PN66

MR AUIMATAGI: I can't comment on that document because obviously I haven't really read it, just on the safety issues that have been put forward. It was a safety walk that was conducted with the safety committee, recommendations were made, copies were sent to WorkCover, as well as to the employer, as well as to the safety committee. The understanding was as areas became safe to work in, as the ratification work was completed, work would continue within those areas.

PN67

In terms of work bans, there were no work bans put on to, well, basically until there was a safety inspection. As I say, Commissioner, I can't comment on everything that's put forward in that document, hearsay or who says what or whatever but my involvement was on 28 November where there was a safety inspection through the members concerns that there were a number of safety issues that had been brought forward months earlier and at previous safety meetings but they hadn't been rectified.

PN68

A number of areas, Commissioner were involved, from the lunch rooms to the work stations, to the docks, the presence of the management was John Pleasance, the safety committee chairman and myself but later on another organiser or industrial officer arrived to help us with the actual safety walk. Minutes and recommendations were made and written down and provided to both to the committee as well as the management on areas that were unsafe to work in.

PN69

We had a commitment from the management that these areas would be rectified, the safety issues would be fixed and then, as those areas safe to work in, work would commence. Also, a recommendation was made to contact WorkCover to make more assessment because there were a number areas involved, such as dangerous goods and work stations that WorkCover as a consultative process could actually assist the company.

PN70

That recommendation has constantly been made and to my knowledge as of yet, they have not yet been called on to the actual premises. On return because it was before a long weekend, the 28th was a Thursday or Friday, I'm not sure but on return to work because it was a long weekend, the areas were inspected to ensure that the safety ratification work has been done. The areas that were immediate and a danger to the men were the priority, once those areas were completed, then work would proceed within that area.

PN71

On the wet weather issues, the policy that Boral have in place, the workers have not agreed to that, they have not signed off on any agreement on that, they work under the Occupational Health and Safety Regulation 2001 which is in terms of wet weather, that risk assessments and so forth has to be made safe prior to them carrying out any sort of work in the areas. Dry and safe access to work stations or work areas has to be provided and the policy that was put in place, not all the employees have signed off or agree on that or even totally aware of the actual guidelines contained in it.

PN72

So these are all safety issues that were presented to the company and the safety committee on a consultative process have continuously made themselves available to work through these various safety items. That's basically what I can answer on at this stage, Commission because as I said, I haven't read through this other documentation about what I've said or Brian Parker. I can state that the original notification of protected action was faxed to the company but they said that they hadn't received it, so we took the action of actually delivering it in person to formally advise them that protective action will be commencing as of the 15th and that was done on the 5th.

PN73

Brian Parker was involved in that, Commissioner, so I can't really speak on his behalf in terms of the conversations carried on between the management and Brian Parker.

PN74

THE COMMISSIONER: Mr Hatcher?

PN75

MR HATCHER: If it please, Commissioner, the Commission will have noticed that our order is only directed to the Revesby site. We don't challenge the right of the union to engage in protected action no matter how outrageous the claims may be. I should say that my client's major competitors all have the benefit of having their employees in the union other than the CFMEU. The wage rates that are sought in this agreement that are demanded by the union and enforced by the industrial action are that our client pay $6 per hour above its nearest competitor and afford its employees a 36 hour week.

PN76

But the union under the Workplace Relations Act are entitled to make demands such as that and to enforce those demands with protected action. What they're not entitled to do is to infect their protected action with unprotected action. Our contention is that at the Revesby site the employees have been engaged in industrial action which is unprotected and that has infected whatever protection may have been available to the employees for the indefinite stoppage commenced yesterday.

PN77

Now whether we be right as to that or wrong as to that, that is the proposition that it infects it and it's a proposition that the Federal Court has recognised as being arguable, the Commission doesn't need to determine. All that it needs to determine is that there is some illegitimate industrial action proceeding and if it determines that as a matter of fact in our respectful submission that the circumstances of this case is such that it would grant our client relief from that illegitimate industrial action.

PN78

Now, clearly there is an issue of fact between us as to whether there is illegitimate industrial action taking place. Mr Auimatagi suggests that the action is justified. If he be right as to that then the Commission's exercise of discretion would be against us. If he be wrong as to that in our respectful submission the Commission's exercise of jurisdiction, of discretion would be with us. We have the evidence available and we rely on exhibit 1.

PN79

THE COMMISSIONER: The only thing that concerns me is whilst the exercise of discretion has been tested elsewhere the strike may be continuing. I think I'm a bit more concerned to see the root cause of the problem resolved quickly rather than delaying that process and to that end I'm going to adjourn into conference at least in an initial attempt to try and address the underlying issues without prejudice to consideration at a later stage to the application or an order. Thank you.

NO FURTHER PROCEEDINGS RECORDED [12.28pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #H1 COPY AFFIDAVIT PN17