C2004/2903, Transcript of Proceedings [2004] AIRCTrans 1447 (15 April 2004)

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TRANSCRIPT OF PROCEEDINGS


FO/N 10422
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT DUNCAN

C2004/2903

P&O PORTS LIMITED

and

THE MARITIME UNION OF AUSTRALIA

Notification pursuant to section 99 of the Act
of an industrial dispute re an alleged failure
to follow dispute settlement procedures by
employees at Darling Harbour

SYDNEY

2.35 PM, FRIDAY, 2 APRIL 2004

PN1

THE SENIOR DEPUTY PRESIDENT: Could I have appearances please?

PN2

MR N. TURNER: If the Commission pleases, I am a solicitor seeking leave to appear on behalf of P&O Ports. With me today is MS R. BRADEY AND MR R. CUMMINS from P&O Ports Limited.

PN3

THE SENIOR DEPUTY PRESIDENT: Thank you Mr Turner.

PN4

MS J. WHITE: If the Commission pleases, I appear on behalf of The Maritime Union and I have the two assistant branch secretaries with me, MR P. GARRETT and MR W. SMITH. I have no objection to the seeking of leave to appear.

PN5

THE SENIOR DEPUTY PRESIDENT: Thank you, Ms White. Well, are we going to follow the standard procedure? I will hear from you, briefly, Mr Turner, as to what has brought us here and then hear Ms White and then adjourn into conference.

PN6

MR TURNER: Yes, we would like to put some things on the record to start with and then see how the matter progresses and I assume that your Honour will want to go into conference at some stage.

PN7

THE SENIOR DEPUTY PRESIDENT: All right.

PN8

MR TURNER: Thank you. I will try and keep it brief - although I get paid by the hour.

PN9

THE SENIOR DEPUTY PRESIDENT: Well that is an honest admission, I congratulate you.

PN10

MR TURNER: As your Honour is aware P&O Ports has notified an alleged dispute pursuant to section 99 of the Workplace Relations Act. That dispute relates to two things: the taking of what we say was unlawful industrial action on the afternoon of 31 March 2004, two days ago - that industrial action lasted for approximately two hours - and a failure by the union and their members employed P&O at Darling Harbour to follow the dispute settlement procedure contained in the relevant certified agreement. I am not sure whether your Honour has got a copy of that agreement?

PN11

THE SENIOR DEPUTY PRESIDENT: I haven't because I am not sure the notification mentioned an agreement.

PN12

MR TURNER: No, it only mentioned the Awards. I do have a copy here and I might hand them up. I am only going to go to it very briefly. At the same time, to save your associate getting up more than once, I am also going to hand up the memorandum which I will come to in a moment. It is a memorandum from P&O Ports to employees at Darling Harbour and Glebe Island, but I will identify that properly in a moment. I won't ask for the agreement to be marked.

PN13

THE SENIOR DEPUTY PRESIDENT: No, that is right and we will mark the other one when you get to it.

PN14

MR TURNER: Yes, when I get to it, thank you. If I could very quickly take you to clause 24 which is a dispute resolution clause, it is on page 19 of 42 of the agreement.

PN15

THE SENIOR DEPUTY PRESIDENT: Yes?

PN16

MR TURNER: Obviously all agreements are required to have a dispute resolution clause. The one I wanted to draw your Honour's attention to, in particular, was - this is a bit of a minefield - clause 24.1.1.6; it is the last clause on the bottom of that page. And importantly that says:

PN17

During the time when the parties attempt to resolve the matter either at the workplace level or through consent or arbitration the parties shall continue to work in accordance with their contract of employment.

PN18

So, the clause itself recognises that employees are required to continue to work whilst the dispute is going through the dispute resolution procedure. Of course, on the 31st they didn't follow the disputes procedure they simply took what we say was unlawful industrial action. As your Honour would be well aware section 170MN of the Act prohibits the taking of industrial action during the life of the agreement, or the nominal term of the agreement, subject to Emwest of course, but leaving that to one side, the nominal term as you can see on the agreement is 30 June 2005.

PN19

The industrial action that was taken which was in the form of a complete stoppage of work significantly disrupted P&O Ports' operations as all industrial action tends to do. But, just as importantly, your Honour, at the exact time that the industrial action was occurring P&O were in a meeting negotiating the contract, or seeking to renew the contract, with a client - the ship of which was in Darling Harbour and was being affected by the industrial action.

PN20

Now, the consequences of that could be quite significant. It is the main client, or the main contract at Darling Harbour, and one of P&O's significant clients. So, at the time the industrial action was occurring, P&O was attempting to re-negotiate the contract and, of course, the client was immediately informed that there was a problem; needless to say they weren't very impressed by what was occurring.

PN21

I will very briefly go to what occurred. I won't go into a lot of detail because I understand what your Honour has already said. The management employee was approached by two union delegates at approximately 2 o'clock on the 31st to say that they had an issue with the implementation of a roster system. It is a new - when I say "new" it is a computer roster system that was being steadily introduced through the various P&O Ports facilities. It has, for example, been in operation at Port Botany for about two years now, but steadily it is going through each of the sites. And that is currently being implemented and has been since January. The consultation started in January of this year, of that being implemented at Darling Harbour.

PN22

The management employee was informed that they had an issue with the employee whose position would be made redundant as a result of this being implemented. There is an allocator at Darling Harbour who, for operational reasons, will no longer be required to perform that position once this is implemented and it is intended that it will be implemented fully. It is being implemented now but it will be fully implemented in mid-April.

PN23

At the end of the discussion the two union delegates said that they were in dispute about that matter but that the dispute resolution procedure would be followed. The next that P&O was aware was that the employees had stopped work, including the two delegates who had only very recently before said that they were going to follow the dispute settling procedure; and there was a complete stoppage of work.

PN24

The management employee informed the employees that their industrial action was unlawful, or he considered it to be unlawful, and he directed them to go back to work; they refused to do so. Following some telephone calls and the arrival of Warren Smith and Paul Garrett some time later, the employees returned to work at about 4 o'clock. So the employees were on strike for about two hours.

PN25

Now, I have cut down that process of what occurred in those two hours. P&O was obviously not very happy in the circumstances and, most importantly, not only was there unlawful industrial action occurring but the fact that the dispute settling procedure wasn't followed. Not only that, the delegates had said that they were going to follow the dispute settling procedure and within 20 minutes they were taking industrial action.

PN26

I will very briefly go to the background because I think it is important to address the underlying "dispute". As I said before, your Honour, there has been the implementation of this new electronic roster system. Consultation started at Darling Harbour with the committee in January of this year. Since that time there have been ongoing consultation discussions and meetings in relation to this.

PN27

So this wasn't sprung on them out of the blue. This is something that's been ongoing for months but on top of that this isn't something new to Darling Harbour, this is happening at all of the P&O Ports operations around Australia and the union have been fully aware of this and went through the same consultation process, for example, in relation to Port Botany. Specifically in relation to the employee, and as I indicated as a result of this, there will be a position no longer required.

PN28

P&O have held meetings with this employee on a number of occasions. The employee was kept fully informed of what was occurring. The employee was also informed as early as the end of January during a meeting that he would be found another position within P&O. So from as early as the end of January the employee knew that he wouldn't be made redundant but that P&O would find him another job.

PN29

As it turns out P&O have found him two jobs. The initial job was at Darling Harbour as an operational role. The employee identified that he would be prepared to take that role but he was concerned about having to do a night shift so P&O took that on board and then identified another position, it's a new position, that's being created at Port Botany and has communicated to the union and in particular to Mr Smith, who sat here, that P&O are prepared to offer him this new role.

PN30

THE SENIOR DEPUTY PRESIDENT: It doesn't have a night shift?

PN31

MR TURNER: No, it doesn't, no, it doesn't. So when he raised a concern about the night shift P&O went back and re-considered and identified him something else. The union has been kept fully informed of this the whole way through. The site committees have been kept fully informed of this the whole way through. P&O have spoken to Warren Smith about this position at Port Botany and informed him of what they wanted to do.

PN32

There is, I understand, an issue internally with the Port Botany MUA Committee not with P&O offering the position but there appears to be some internal politics going on which is not P&Os concern. However, at all stages of this process the MUA, the members and the site committees have been kept informed of the process and the employee has.

PN33

This matter is further compounded by the fact that they take industrial action in relation to a dispute which they know is fully in hand, they've been consulted with through the whole process, the employee has been consulted with. If they have an issue that's a matter for them but the process they need to follow is contained in the certified agreement which was only certified last year.

PN34

This isn't the first time, and hopefully it will be the last, but it's not the first time that this has occurred and only very recently before your Honour there was another issue of failing to follow the dispute procedure at Glebe Island which again relates to the same certified agreement and that was, on my instructions, on or around 9 February and at that time, and I don't know whether your Honour remembers, you probably have a lot of matters, but on that day you issued a statement directing the MUA and their members and in particular Warren Smith to follow the disputes procedure contained in the certified agreement.

PN35

Only a month later the same thing has happened again. That memorandum that I handed up to you before I may take you to that very briefly. It's the memo that was sent by mail to all employees covered by the certified agreement and as you can see the date is 2 April 2004. The reason why that is an auto date so when it's printed off it automatically updates it. I'm instructed that that letter was sent by mail to all employees on 19 February 2004 which is approximately a week after you issue the statement in relation to the Glebe Island dispute, and what this memorandum does is headed, Avoidance of Dispute Procedure.

PN36

What this does, self explanatory, it sets out the obligations - sets out to the employees what their obligations are as they are parties to the agreement. What their obligations are under the agreement, that taking of unlawful industrial action is in breach of the Workplace Relations Act and it actually attaches a copy of the dispute resolution procedure.

PN37

So, the union and their members are fully aware of what their obligations are. Your Honour, you have informed them through a statement of what their obligations are, the company has through a memorandum, and they are still not following the dispute resolution procedure and taking unlawful industrial action.

PN38

I'm trying to keep it short, however, I suppose I should cut to the chase that the company could have gone somewhere else. They could have gone straight for 127 orders, they didn't want to do that. They have come here to try and fix this up properly through discussion. However, there were two directions that the company is seeking today and I have got copies of those that I might hand up. It may be appropriate if I could - if I could mark that memorandum?

PN39

THE SENIOR DEPUTY PRESIDENT: Yes, I will mark that memorandum for identification. The memorandum to staff from P & O Ports Darling Harbour and Glebe Island Terminals I mark exhibit P&O1.

EXHIBIT #P&O1 MEMORANDUM TO STAFF FROM P&O PORTS DARLING HARBOUR AND GLEBE ISLAND TERMINALS

PN40

MR TURNER: Thank you, your Honour. There are two directions that I am seeking today, or P&O are seeking today. I hand up those two.

PN41

THE SENIOR DEPUTY PRESIDENT: Yes.

PN42

MR TURNER: The first one is the shorter one, it is just one paragraph; and the direction the company is seeking is that it - I will not read out the paragraph, I will summarise it. We would like the Commission to direct the employees who took the unlawful industrial action to attend the Commission so that the Commission, itself, can inform the employees of what their obligations are in relation to disputes under the Certified Agreement, and that taking unlawful industrial action is not appropriate and it breaches the Workplace Relations Act.

PN43

Now, that may be an unusual step. Most certainly you have the power to do it under section 111(s). In these circumstances, your Honour, we say it is appropriate that you do that because you have already issued a statement, only a month ago, that they are to follow the dispute resolution procedure. The company, themselves, has written and sent a memorandum to all of the employees informing them of what their obligations are and they are ignoring it, and it is significantly hampering the operations of P&O putting contracts at risk, and a contractor at risk, there is an obvious flow on from that.

PN44

We say, in these circumstances, it is appropriate that you issue that direction and there is a list of employees attached to the notification, and they are, we say, all of the employees that participated in that unlawful industrial action.

PN45

The second direction that we are seeking today, again, speak for itself and it is not surprising, I don't think, is that the union, the officers, employees, agents and delegates of the union, and employees of P&O Ports Ltd, who are members of the MUA, and employed pursuant to the relevant Certified Agreement must follow the dispute resolution procedures contained in clause 24 of the agreement and must not engage in, or threaten to engage in, unlawful industrial action to the ..... of any dispute or claim.

PN46

Now, you have issued a statement before, your Honour, and it has been ignored. We say on this occasion it is quite clear there are numerous decisions of this Commission, I've appeared before this Commission regularly, and the Commission has constantly said, you must follow the dispute resolution procedure. We say that it is appropriate now that the Commission, with respect, issues this direction so that there is no doubt what is required to be done. I don't know whether you want to mark these two directions.

PN47

THE SENIOR DEPUTY PRESIDENT: No, I won't mark them.

PN48

MR TURNER: At this stage your Honour that's all I have to say.

PN49

THE SENIOR DEPUTY PRESIDENT: Very well. Ms White?

PN50

MS WHITE: Your Honour, if I could first apologise, I have been unable to spend much time on this matter just because I've been caught up with other ones and I'm the only one in the office at the moment so I apologise and I will be relying on my two friends that are here with me today in conciliation to help out, so I've had about twenty minutes to read what happened, so I'm going to be of little use to you in relation to on the record but if I could just say a couple of things.

PN51

My understanding is that stoppage was between about 3 o'clock and 3.55pm so it was 55 minutes in duration. I understand that even about 50 per cent of the members at that time were on their break, so in fact it was only about 25 minutes for those members involved. I understand that once the branch became aware of this issue the branch directed all members to return to work after speaking to the company on the telephone. I understand the dispute was spontaneous in nature and it was caused by a frustration over a large range of issues which I will name very briefly and we can go into detail during conciliation if necessary.

PN52

The closure of White Bay, the settling in issues at Darling Harbour, the meetings that have been held with the company, a lot of the members feel that the company is just giving lip service to the consultation provisions in the enterprise agreement and in fact nothing has actually been done. The people attending those meetings are in no position whatsoever to make a decision and their concerns are just not being heard whatsoever.

PN53

The MIC roster and the site pacific issues around that and the company's obligations under the introduction of change clause have just not been dealt with. Every time the MIC roster has been put in place each side obviously has some concerns about it and they've been worked through. I understand that those issues have been - - -

PN54

THE SENIOR DEPUTY PRESIDENT: This is a reference to the roster system at the other depots.

PN55

MS WHITE: The roster system that has been implemented this week. The removal of the allocator which was spoken about briefly, the gear stall, the receiver and delivery situation and job security at Darling Harbour in general. We had no knowledge whatsoever about the meeting that was taking place between the company and the client, that's the first time I've heard of it today and I asked my two colleagues and they assure me they didn't know about it either. Unfortunately I was on annual leave for the whole month of February so I know nothing about the 9 February issue so I apologise your Honour and I will be brought up to speed about that very quickly and I apologise that I didn't come a little bit more prepared about that.

PN56

The union is more than happy now to proceed into conciliation and enter into meaningful discussions to resolve the issues but I would oppose any directions being given until we can actually deal with the real issues and I would actually ask for some time to be able to respond to those in a more formal arena at a later stage if that's convenient. So if you would like to adjourn into conciliation I think that would be - - -

PN57

THE SENIOR DEPUTY PRESIDENT: All right, Mr Turner, you wanted to say something?

PN58

MR TURNER: Yes your Honour, very very briefly. The real issue here is the fact that they're failing to follow the dispute resolution procedure in taking unlawful industrial action. On the day in question on my instructions none of those issues have now been raised were raised. If they are issues, if they are in dispute there's a dispute resolution procedure which they should be following. This notification isn't in relation to those issues.

PN59

THE SENIOR DEPUTY PRESIDENT: Yes, I do understand that Mr Turner, that's the issue you've brought before the Commission and I can assure you it will be the only issue I'm concerned with this afternoon.

PN60

MR TURNER: In relation to seeking instructions my understanding is that Warren Smith was involved on 9 February and I won't say anything else.

PN61

THE SENIOR DEPUTY PRESIDENT: Very well, I will go into conference.

OFF THE RECORD [2.58pm]

RESUMES [4.32pm]

PN62

THE SENIOR DEPUTY PRESIDENT: In light of what has been put today I issue the following statement and directions. P&O Ports Limited has notified the Commission of a dispute with the Maritime Union of Australia at the Darling Harbour and Glebe Island terminals in which P&O alleges that the MUA and its members have not followed the disputes procedure appearing as clause 24 of the P&O White Bay Glebe Island Enterprise Agreement 2003. The agreement has not yet reached its nominal expiry date. The most relevant provision of the agreement for present purposes is clause 24.1.16, it says:

PN63

During the time when the parties attempt to resolve the matter either at the workplace level or through conciliation or arbitration the parties shall continue to work in accordance with their contract of employment.

PN64

This is the second occasion this year in which industrial action has been taken by members of the MUA working at Darling Harbour or Glebe Island in breach of clause 24.1.16 and on 9 February I issued a statement which amongst other things stated that the MUA should observe the dispute settling procedure which includes clause 24.1.16. This has not occurred and I now issue directions in regard to the matter. It is noted that the clause relates to disputes arising in regard to the application of the agreement.

PN65

The directions are:

PN66

1(a) The parties bound by these directions must follow the dispute resolution procedure contained in clause 24 of the agreement referred to above.

PN67

(b) The parties bound by this direction are the officers, employees and delegates of the MUA and employees of P&O who are employed pursuant to the P&O White Bay Glebe Island Enterprise Agreement 2003.

PN68

2. The MUA is directed to supply a copy of this statement and directions to each of its members employed under the P&O White Bay Glebe Island Enterprise Agreement 2003.

PN69

The MUA has raised issues which it believes require attention at the two terminals. I have not entered into them at this stage but have formed a preliminary view that some are not necessarily over the application of the agreement. Where such issues exist the MUA is to prepare a list of same for presentation to P&O and the parties are to discuss them with a view to reaching agreement. Those matters are to be reduced to writing and negotiated between the parties with recourse to the disputes procedure if appropriate.

PN70

The Commission will sit at 9.30am on Wednesday, 5 May 2004 for the purpose of monitoring progress on the matter.

PN71

That concludes the statement and directions. A copy will be available on the adjournment of the Commission which I now do, the Commission is adjourned indefinitely.

ADJOURNED INDEFINITELY [4.35pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #P&O1 MEMORANDUM TO STAFF FROM P&O PORTS DARLING HARBOUR AND GLEBE ISLAND TERMINALS PN40