C2003/6753, Transcript of Proceedings [2004] AIRCTrans 16 (8 January 2004)

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TRANSCRIPT OF PROCEEDINGS

O/N 2028

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER HOFFMAN

C2003/6753

APPLICATION TO STOP OR PREVENT
INDUSTRIAL ACTION

Application under Section 127(2) by
Bechtel Australia Pty Ltd for orders in
respect to commencement of industrial action
at 12.30 pm 11/12/03 and resolve to stay on
strike until 6.30 am on 15/12/03

BRISBANE

4.08 PM, THURSDAY, 11 DECEMBER 2003

PN1

MR G. POWER: Appearing for the Australian Industry Group, for and on behalf of Bechtel Australia Proprietary Limited.

PN2

MS Y. D'ATH: On behalf of the Australian Workers Union.

PN3

MR E. MOORHEAD: On behalf of the AFMEPKIU, and I apologise for being late, Commissioner.

PN4

THE COMMISSIONER: Thanks, Mr Moorhead. Yes, Mr Power.

PN5

MR POWER: May it please the Commission, this is an application for a Section 127 order to prevent further industrial action. What we might do, Commissioner, is take evidence from Mr McPherson, who is on the telephone, who is the site industrial relations officer for a section affected by the industrial action, to confirm the action and the reasons that we understand the action is being taken, and after any cross-examination, we might make submissions in respect to support the granting the application.

<ROBERT JOHN McPHERSON, AFFIRMED [4.09pm]

<EXAMINATION-IN-CHIEF BY MR POWER

PN6

THE COMMISSIONER: Yes, Mr Power.

PN7

MR POWER: Yes, may it please the Commission.

PN8

Mr McPherson, could you give your full name, and address, and occupation to the Commission, please?---Yes, my full name is Robert John McPherson. My address is 22/32 Kemp Street, Gladstone, Queensland. My occupation is Employee Relations Representative with Bechtel Australia Pty Ltd on the Comalco Alumina Refinery Project.

PN9

Mr McPherson, are the employees covered by the agreement, which is known as the Comalco Alumina Refinery Partnership Agreement 2001 currently taking industrial action?---Yes.

PN10

And what action is that?---They have withdrawn their labour until Monday, 15 December, at which time, they intend to attend a return to work meeting outside the gate here at the project.

PN11

How did the company - that is Bechtel Australia Proprietary Limited - become aware of the industrial action, and when did they become aware of this?---The decision by our team members to withdraw their labour was taken today at approximately 12.30. That was following a meeting that commenced at approximately 11.30. The meeting determined to withdraw their labour until Monday, 15 December, and the motion that was passed - that was conveyed to Bechtel Direct management was that that decision was taken in support of CBI and John Hollands' colleagues. That meeting did not raise any new issues to the management of Bechtel Direct.

PN12

And were you present when that motion was presented to the management?---Yes.

**** ROBERT JOHN McPHERSON XN MR POWER

PN13

And the motion was - can we just clarify this - the motion was simply to take action to support the employees of John Holland Constructions and CBI Contractors Proprietary Limited?---Yes, that is correct.

PN14

You are not aware of any safety issues the employees have raised?---No, there is no explicit safety issue that has been raised, no.

PN15

I have no further questions of the witness.

PN16

THE COMMISSIONER: Yes, Ms D'Ath.

PN17

MS D'ATH: Thank you, Commissioner.

<CROSS-EXAMINATION BY MS D'ATH [4.15pm]

PN18

MS D'ATH: Mr McPherson, you state that the motion that the meeting passed was stated to management being they were taking action in support of other companies' employees that had taken action on site. Were there any other issues raised with you?---The meeting today - - -

PN19

Yes?--- - - - that resulted in the industrial action, the only motion that came from that was to take industrial action in support of CBI and John Holland. No other issues came out of that meeting. There were information meetings held with various unions, with the various unions and team members of Bechtel Direct yesterday, 10 December, where a number of housekeeping-type issues that related to PTO and wet weather; a number of those issues were raised yesterday, but today, the motion that was brought to us was simply that they were taking industrial action in support of their colleagues at CBI and John Holland.

PN20

I have no further questions, thank you.

**** ROBERT JOHN McPHERSON XXN MS D'ATH

PN21

THE COMMISSIONER: Yes, Mr Moorhead.

<CROSS-EXAMINATION BY MR MOORHEAD [4.16pm]

PN22

MR MOORHEAD: Mr McPherson, you've said that there was not any explicit safety issues. Was there any safety issues that weren't explicit raised?---No.

PN23

I have no further questions, Commissioner.

PN24

THE COMMISSIONER: Yes, thank you. Yes, Mr Power.

PN25

MR POWER: I have no questions in re-examination.

PN26

THE COMMISSIONER: Yes, thank you.

PN27

Yes, you are excused. You may step down, Mr McPherson, thank you?---Thank you, Commissioner.

<THE WITNESS WITHDREW [4.16pm]

PN28

THE COMMISSIONER: Yes, Mr Power.

PN29

MR POWER: May it please the Commission. First, there are just a couple of tidy-ups I need do in respect of this application. The application was made in respect of work that is regulated by the Bechtel Australia Proprietary Limited Comalco Alumina Refinery Partnership Agreement 2001. I have been subsequently informed that the actual agreement that regulates the employees on strike is the Comalco Alumina Refinery Partnership Agreement. The parties are Bechtel Australia Proprietary Limited, but, for some reason, that wasn't adopted in the title, so we would amend our application, just to remove that name to the correct name that is made there.

PN30

This is an application seeking an order to prevent any further industrial action under Section 127. The evidence is that the employees have taken industrial action. They are covered by an agreement. The expiry date of that agreement is 11 November 2004, so it is still within the expiry date, and the evidence is that it seems to be in support of employees, who have taken action, and now have orders requesting to go to work. This action seems to be taken after the Commission has issued the orders. There is somewhat of an element of defiance there, one might submit, Commissioner.

PN31

So we would submit, in terms of the legislation - in terms of the requirements of Section 127, certainly the jurisdiction exists, and in terms of your discretion, that there is no safety dispute or issue that could not be resolved through the disputes procedure, and, in some respects, the employer would be difficult to respond to the claim itself, given it is in support of other unprotected action taken by other companies. So therefore we would say that certainly the evidence would support the making of the order, and we seek the order made.

PN32

Now it is noted that in terms of the draft order, our instructions are to seek an order with effect from 5 o'clock this afternoon, which would be consistent with the orders made in respect to CBI and John Hollands, and I guess - perhaps there is a level of frustration on behalf of our client, Bechtel Australia Proprietary Limited, that they would take action after orders had been granted on further employees, and they have asked for those orders to remain in force for the duration of the project. Those are our instructions. We would leave it to the Commission's discretion in respect to duration. May it please the Commission.

PN33

THE COMMISSIONER: Yes, Ms D'Ath.

PN34

MS D'ATH: Thank you, Commissioner. Commissioner, my submissions will be brief, simply because between obtaining the notification of these proceedings and the proceedings commencing, I was unable to get any detail as to the action taken by the Bechtel employees, other than to confirm that, in fact, they have taken the action as stated, so certainly, as per the proceedings this morning, Commissioner, we would have to concede that the jurisdiction exists to issue orders. As to the reasons why that action has been taken, I guess there is two possibilities for the Commission to contemplate. One is what has already been put, which is simply that this action has been taken in response to, or in support of those employees that have already taken action on the site, or alternatively, the action that has been taken is the same reasons as the other employees had taken.

PN35

Unfortunately, there is a third possibility, which is that there is something completely different that has happened on site to warrant these employees going, but, as I've stated, I have been unable to get any details as to why these employees have walked today, so consequently, I cannot provide the Commission with any submissions on that. Certainly I think it is beneficial if the Commission had those submissions, and would make the request that the Commission consider adjourning the proceedings until possibly tomorrow morning, but certainly I understand the position that the Commission is in that at proceedings this morning, there were already two orders issued in relation to two companies on this site.

PN36

In relation to any potential orders that may be issued, we would simply say that if they are to be issued, they should be issued in exactly the same terms as those that were ordered for the other two companies on site at the proceedings this morning, if the Commission pleases.

PN37

THE COMMISSIONER: Thanks, Ms D'Ath. Yes, Mr Moorhead.

PN38

MR MOORHEAD: Commissioner, we concur with those submissions made by the AWUA. The only further matter we would like to make submissions upon is the submission by Mr Power that there is an element of defiance in this matter. Commissioner, we say that that is not the case, that the employees of Bechtel have not been involved with this dispute to date, and are not the subject of any orders or recommendations of the Commission, and we say that there is no further element of defiance as suggested.

PN39

THE COMMISSIONER: Yes, anything further, Mr Power?

PN40

MR POWER: We would oppose the adjournment. I think Mr McPherson's evidence is quite clear. There was one issue that they have made the reason for their withdrawal, and on that basis, we would submit that the orders be made this afternoon. May it please the Commission.

PN41

THE COMMISSIONER: Yes, the Commission has had the opportunity to consider the evidence and submissions in this matter. The matter arises out of an application under section 127 of the Workplace Relations Act 1996 by Bechtel Australia Proprietary Limited, seeking an order to prevent industrial action occurring at the Comalco Refinery Construction site in Gladstone. The proposed order would be binding on the AWUA, and their officers, employees, delegates, and agents, and members employed by the employer.

PN42

Section 127 of the Act will be set out.

PN43

Evidence was called from Mr McPherson indicating that industrial action has been happening since 12.30 today. It is clear that the work is covered by a certified agreement of this Commission, and that that agreement is within its normal expiry date. I am of the opinion that industrial action is happening, and is proposed to continue until at least next Monday, and I'm of the view that the action is plainly not likely to be protected action in accordance with the requirements of the Act. The Commission is satisfied the weight of evidence is in favour of granting the application.

PN44

The Commission has taken into account the prior record of the site in considering the length of draft orders. The draft order will operate for a period of one month or until further order of the Commission. The order will come into effect as of 5 pm this afternoon, and will require the employer to provide advice to the employees of such order. Advice will also be given to the unions.

PN45

The Commission is also satisfied with respect to section 127(1)(b) of the Act, that the employer is directly affected by the industrial action. The Commission will issue the amended order as soon as possible, following the conclusion of the hearing. The order will be available to the parties as soon as practicable. The parties are required to give effect to those orders which will issue. The Commission stands adjourned.

ADJOURNED INDEFINITELY [4.24pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

ROBERT JOHN McPHERSON, AFFIRMED PN6
EXAMINATION-IN-CHIEF BY MR POWER PN6
CROSS-EXAMINATION BY MS D'ATH PN18
CROSS-EXAMINATION BY MR MOORHEAD PN22
WITNESS WITHDREW PN28