C2004/3225, Transcript of Proceedings [2004] AIRCTrans 1676 (4 May 2004)

AUSCRIPT PTY LTD
ABN 76 082 664 220

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

TRANSCRIPT OF PROCEEDINGS


O/N 6827

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT ACTON

C2004/3225
C2004/3243

FLUOR GLOBAL SERVICES
AUSTRALIA PTY LIMITED

and

CONSTRUCTION, FORESTRY, MINING
AND ENERGY UNION and OTHERS

Notification pursuant to section 99 of the Act
of a dispute re employees' availability to work
at Hazelwood Power Station from 3.30 pm on
23 April 2004 until 3.30 pm on 25 April 2004

METAL, ENGINEERING AND ASSOCIATED
INDUSTRIES AWARD 1998 - PART 1

Application under section 33 of the Act for
review of above award on the Commission's
own motion re section 127 dispute in relation
to C2004/3225 for Fluor Global Services Pty Ltd

MELBOURNE

12.45 PM, FRIDAY, 23 APRIL 2004

PN1

THE SENIOR DEPUTY PRESIDENT: In addition to the section 99 notification of an industrial dispute in this matter, I have of my own motion listed a section 127 matter. Can I have the appearances, please?

PN2

MR S. CLANCY: I appear on behalf of Fluor Global Services Australia Proprietary Limited; with me this afternoon is MR J. HAYLOCK, the site manager for our Hazelwood Power Station contract.

PN3

MR M. ADDISON: I appear on behalf of the Australian Manufacturing Workers Union, together with the delegates from the site.

PN4

MR R. WAINWRIGHT: I appear on behalf of the CFMEU, and with me is MR B. ROBINSON, our shop steward on the site. And I seek leave to appear on behalf of the CEPU Electrical Division, and with me in relation to that appearance is MR G. WATSON, the shop steward from the site.

PN5

THE SENIOR DEPUTY PRESIDENT: Yes, leave is granted. Mr Clancy.

PN6

MR CLANCY: Thank you, your Honour. First up, could I thank the Commission for putting this matter on at such short notice. Your Honour, this issue arose yesterday morning, and before I go to that I did actually make a mistake in my notification. I got caught up between Anzac Day and being on the Sunday, and I got my dates all mixed up. The stewards and the employees actually have advised that they are not available for work until 3.30 pm on Monday, 26 April, not the 25th I think as I have got in my notification.

PN7

Your Honour, yesterday morning our site manager, Mr Haylock, was contacted by one of the stewards on site, Mr Robinson from the CFMEU, asking if they could have a meeting of all the employees, all of our employees at the Hazelwood site, at 10 am yesterday morning. No reason was given for the meeting and no agreement was given, so we didn't authorise the meeting. At about 9.30 yesterday morning Mr Haylock became aware that there was a meeting organised by the stewards for 10 am yesterday. He sought out the stewards, or those stewards he could find and got to them at about 9.45 to ask them what was going on. During that he reminded them of what I would describe as a pretty long-standing protocol down there about if we have issues, talking about it; stewards talking to the site manager, trying to resolve it.

PN8

In any event, the stewards then agreed that they would meet, in fact, with Mr Haylock at 10 o'clock. They did so and what was put by the stewards to Mr Haylock was that they wanted Monday, 26 April, to be regarded as a public holiday in lieu of Anzac Day which falls on the Sunday this year. Mr Haylock, quite correctly, pointed out to them that that wasn't a provision that was contained in our certified EBA and, therefore, rejected their request. There was one other issue raised at those discussions but it doesn't really bear on this so I won't go to that.

PN9

The stewards asked if they could have a quick report back meeting with the employees to let them know what had gone on, and Mr Haylock agreed that there would be a - he was happy for them to have a 15 minute meeting just to let everybody know. That took place, and then at about 10.40 yesterday morning or - yes, 10.40, 11 o'clock, the stewards came back - and it is the combined stewards so it is representing the three unions that are party to our EBA - came back and advised that the employees had met and they had decided that they would be unavailable for work from 3.30 pm on Friday, today, which is their normal knock-off time until 3.30 pm on Monday, 26 April. So for us, effectively, they are taking what we would assert is illegal industrial action from 3.30 pm this afternoon until 3.30 pm on Monday.

PN10

Now, I would add, your Honour, that the normal hours of work here are 7 till 3.30, Monday to Friday. Given the nature of the contract, we are providing maintenance services, routine maintenance services to Hazelwood Power Station. We also provide shut-down services there and there was, in fact, a plan to take one of the units off yesterday evening for some regular routine maintenance. So that would have required us to work shift work from yesterday evening through until Saturday afternoon.

PN11

Now, given what has happened and given the decision of our employees yesterday, Mr Haylock advised our client of that. Our client is, of course, very unhappy with us but the client has taken a decision that in those circumstances they would not take the unit off yesterday evening. So that unit is still running at this time but does need to be taken off at some time in the near future for scheduled maintenance. So, in effect, this has already had an impact on us and it has already had an impact on our client. In terms of background I think that is really where we are at this point in time, your Honour.

PN12

THE SENIOR DEPUTY PRESIDENT: So the - were employees actually rostered to work?

PN13

MR CLANCY: Yes. Selected employees had already been asked to work yesterday evening, this evening and tomorrow.

PN14

THE SENIOR DEPUTY PRESIDENT: Right, and when were they asked to do that?

PN15

MR CLANCY: Tuesday, Wednesday of this week, your Honour.

PN16

THE SENIOR DEPUTY PRESIDENT: Okay, and were employees rostered to work next Monday?

PN17

MR CLANCY: Yes. For us it is a normal day of work next Monday.

PN18

THE SENIOR DEPUTY PRESIDENT: And how many employees are involved?

PN19

MR CLANCY: Fifty full time employees and 15 casual employees currently.

PN20

THE SENIOR DEPUTY PRESIDENT: Five zero full time, is it?

PN21

MR CLANCY: That is right.

PN22

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Addison.

PN23

MR ADDISON: Yes, thanks, your Honour. Your Honour, I have got to take issue with a number of matters that Mr Clancy raises. First of all, my instruction is that the company did not become aware of this matter yesterday morning. As I understand it, the delegates have been attempting to have discussions with the company for a significant period of time around the question of Anzac Day. Your Honour, the enterprise agreement provides at 15.3 by agreement between Fluor and its employees days may be substituted for public holidays. Also in terms of the general substitution clause at 15.2 of the certified agreement, there is an ability where the site observes a substitution day for employees to observe that substitution day.

PN24

Now, the circumstances at the Hazelwood Power Station are a bit more complex than just simply Hazelwood's own internal resource aren't Fluor Daniels. There are a range of contractors that work on the site and working next to the Fluor employees are employees of Alstrom and employees of Simon Engineering. My instruction is that both Alstrom and Simon Engineering have substituted the Monday for the Anzac Day which falls on the Sunday. And, therefore, in my submission, the site is genuinely - my apologies, generally observing in terms of the contractors at least a substitution day for the Sunday and is substituting the Monday as that day.

PN25

I am instructed by the delegates that for weeks they have been trying to raise this issue with the company, and the company has effectively been ducking the issue. I am also instructed that the stewards have raised the question of weekend overtime with Mr Haylock earlier this week and indicated to Mr Haylock earlier this week that most people are not going to be available. I understand Mr Haylock asked the delegates if he could engage another contractor to work over the weekend and the delegates have said, yes, not a problem, you want to engage another contractor, not a problem, go for it. Your Honour, the - - -

PN26

THE SENIOR DEPUTY PRESIDENT: Hang on, who has asked whom about that?

PN27

MR ADDISON: Mr Haylock to the stewards.

PN28

THE SENIOR DEPUTY PRESIDENT: Yes.

PN29

MR ADDISON: That if the workers weren't generally available for the weekend, was it okay if Fluor engage another contractor to work over the weekend because it is the Fluor work effectively. The delegates have said, yes, not a problem, not a problem; if you want to do that, not a problem, go for it. So the weekend is - - -

PN30

THE SENIOR DEPUTY PRESIDENT: So Fluor would subcontract?

PN31

MR ADDISON: Yes. I understand that was the gist of what Mr Haylock put and the delegates have agreed to that. So there is no issue. I mean, my submission there the weekend can be covered off. In any event, the work plan for the weekend, as I am instructed, is not a maintenance issue as such, it is a boiler clean which happen periodically in the various power stations around the valley, and it shouldn't be a difficulty to cover that off. Your Honour, we are more than happy to go into conference and try and deal with these matters.

PN32

I don't know that there is anything useful I can put on the transcript more than what I have already put. There will be other matters that I would need to put in relation to the section 33/127(2). I don't think it is useful to put anything with regard to that matter yet. I would seek that we go into conference and deal with the 99, and see if we can get to grips with the issues. If your Honour pleases.

PN33

THE SENIOR DEPUTY PRESIDENT: Okay. Mr Wainwright.

PN34

MR WAINWRIGHT: Well, your Honour, I endorse and adopt all of the foregoing and agreed that some discussions in conciliation may be useful. I think the only fact that I would like to put on the record at this point is that, whilst there are around 50 full time employees and around 15 casual employees, half of those employees as I am instructed are actually scheduled to have an RDO on Monday. So that is the workforce and we are talking about half of that workforce when we are talking about Monday. Other than that, I will save any further arguments and submissions for an appropriate time.

PN35

THE SENIOR DEPUTY PRESIDENT: Mr Clancy, anything you want to say?

PN36

MR CLANCY: Your Honour, I am happy to go into conference to talk about it but I would just make a couple of things in relation to some points that Mr Addison raised, just before we do. One, I am instructed that there haven't been attempts to talk about Anzac Day prior to yesterday. And in relation to what other contractors might do, I am not aware of what Alstrom have done. I am not aware of what Simon Engineering have done. I would imagine, given the nature of industrial relations negotiation in the valley and in and around the power stations, that all of the contractors would be on fairly similar terms and conditions in their respective EBAs. I don't know but I would imagine. And certainly - I mean, to us, ours does not - our EBA does not countenance them having a substitute day for this Sunday being the Monday.

PN37

In the discussions that took place, in fact, Mr Haylock did offer to the employees that they could take some of their built up days in lieu on Monday if people wanted to. You know, they could take - we could shift around RDOs if people wanted to. But where we got to was, no, we are taking it because we want it. And I think that is just entirely inappropriate. But, anyway, I am happy to do this - pursue this in conference, if the Commission please.

PN38

THE SENIOR DEPUTY PRESIDENT: I will adjourn into conference.

SHORT ADJOURNMENT [1.00pm]

RESUMED [1.34pm]

PN39

THE SENIOR DEPUTY PRESIDENT: There has been discussions in confidence. In light of that, I would ask the parties to report. Mr Addison.

PN40

MR ADDISON: Yes, thanks, your Honour. Your Honour, the parties have reached an agreement with regard to the way forward from today. It has been agreed that the employees will have Monday, 26 April, off and that will be a day without pay at this point in time. The company has made some alternative offers which they have left in the hands of the employees and the delegates will seek authorisation from the members next week with regard to those issues; but that is squarely left in the hands of the membership generally.

PN41

With regard to the weekend, in line with the commitments already given by the delegates, should the company need to source additional labour - and they need to do that through an alternative subcontract - that won't be an argument that we would have. And finally, your Honour, it has been agreed that as Mr Haylock is on call over the weekend, that should there be genuine problems with electricity generation or genuine occupational health and safety problems that need resources, then Mr Haylock would contact one of the local organisers and, as a fail safe mechanism, if that can't be achieved myself and cover will be organised for those issues. And I think that embodies the agreement between the parties, your Honour.

PN42

THE SENIOR DEPUTY PRESIDENT: Yes. Mr Clancy.

PN43

MR CLANCY: That does embody the agreement between the parties. Thank you.

PN44

THE SENIOR DEPUTY PRESIDENT: Very well, I will adjourn this matter on that basis.

ADJOURNED INDEFINITELY [1.35pm]