C2004/3210, Transcript of Proceedings [2004] AIRCTrans 1715 (7 May 2004)

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TRANSCRIPT OF PROCEEDINGS

O/N 10843

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT DUNCAN

C2004/3210

P&O PORTS LIMITED

and

THE MARITIME UNION OF AUSTRALIA

Application under section 127(2) to stop
or prevent industrial action - report-back

SYDNEY

4.07 PM, TUESDAY, 27 APRIL 2003

Continued from 23.4.04

PN108

THE SENIOR DEPUTY PRESIDENT: Well, Mr Turner?

PN109

MR TURNER: Thank you, your Honour. I have with me today MS R. BRADY. I think the other appearances are all the same as last time.

PN110

THE SENIOR DEPUTY PRESIDENT: The essential appearances are the same.

PN111

MR TURNER: Yes. I would firstly like to thank the Commission for listing the matter today. It's much appreciated. P&O thought it was appropriate in the circumstances to have it listed today for report-back based on what occurred over the weekend.

PN112

Unfortunately, your Honour, things didn't go as planned over the weekend in terms of disruption to operations. There was significant disruption to operations over the weekend. I can tell your Honour that P&O Ports did accommodate as many requests as possible and the vast majority of employees who sought leave were granted leave over the weekend, so the vast majority of employees were accommodated. P&O - I think I can say this - bent over backwards to do that including re-arranging Saturday night as well so that that could be accommodated.

PN113

Unfortunately a number of employees who were rostered to work all called in sick. On some shifts it was up to 30 per cent of the shift that called in sick. Of the permanent employees who were required to work, who requested leave but couldn't be accommodated for operational reasons, every one of them phoned in sick - every one. On top of that there were also other casuals who were rostered to work and made themselves available and then phoned in sick.

PN114

Now, what I can say, your Honour, is that there were more people sick last weekend than for the whole of the year. I don't have to join the dots on this and it's appropriate that I don't say anything else at this stage. P&O do have an unplanned absence policy which will be implemented, as it always is, and it will be implemented consistently as has been done in the past. Obviously P&O haven't prejudged any individual employee and will just go through their normal processes. That will be done this week. However, in the circumstances, where every permanent employee is sick at the same time when the day before they asked for leave - perhaps I'll leave it at that.

PN115

Just as importantly, your Honour, the disruption they caused was significant. On Friday we informed the Commission what effects it would have and the fact that Sunday and Monday were very busy days, especially Monday. The ship that was due in Brisbane on Monday was 21 hours delayed. The effect that that has had on that ship is that now the knock-on effect around the world means that it has missed its slots in terms of other ports around the world. It has missed its Panama Canal slot, which means that now it has to wait in line and has to pay a substantial additional fee because of this action. However, the cost to P&O is significant.

PN116

Fisherman's Island up in Brisbane: employees were rostered on the Monday to man that ship. There was no ship. They had a full complement of employees doing nothing on the Monday, on the closed port day, getting paid quadruple time or days in lieu. They had nothing to do because of the delay that had occurred in Sydney.

PN117

THE SENIOR DEPUTY PRESIDENT: I see. The ship was supposed to be in Brisbane.

PN118

MR TURNER: It goes from Sydney up to Brisbane. It was delayed in Sydney by 21 hours. Basically for the whole day employees were getting paid and it will cost P&O a substantial amount of money.

PN119

Another significant effect that it has had is that there are three other ships that are due in Sydney, going up to Brisbane, and they have also been significantly delayed as well. For one of those ships the contract is due for renewal in about two months. Needless to say that will be something that will be raised during those negotiations.

PN120

This is another example, without prejudging it - obviously there are processes that will be followed - but the disruption to operations continues at various ports and this is another example. P&O bent over backwards to be accommodating on Friday. They could have gone for the orders. Whether they would have been granted or not is another matter, I grant you that, your Honour. They could have gone for the orders. Under the agreement they had a right to compel employees to work but they bent over backwards to be accommodating. P&O have suffered significant disruption; their clients have suffered significant disruption. P&Os reputation has been tarnished again.

PN121

Now, we're not expecting the Commission to do anything today; we're not seeking anything today; but we thought. in the circumstances of what occurred on Friday, that it was appropriate to call it back today so that P&O could air its grievances, if you want to put it that way. I think that's it, your Honour. I don't think there's anything else.

PN122

THE SENIOR DEPUTY PRESIDENT: All right, Mr Turner. Thank you. Mr Giddins?

PN123

MR GIDDINS: Your Honour, I'm not fully appraised of all the circumstances because I only became aware of the proceedings at 2.40 this afternoon - I have been elsewhere in the Federal Court. That gave me little time. The reality is that I've asked P&O for some information. They gave it to me. I filled that out a little bit when we arrived here this afternoon. I've attempted to inquire from the work site because the only communications I had with anyone over the weekend were with Mr Riley. who is the Human Resources Manager for the company, and I wasn't aware that there was any significant development. In fact I think the couple of times that Mr Riley rang me I asked if there was any development at all.

PN124

Needless to say, in any event if I'd been appraised of what is being submitted I'm unsure what I could have done. I do know that in my inquiries in the last hour I've tried to ascertain some of the reasons behind why there may have been absenteeism at various times during the weekend, and I understand there are some explanations for those absences. I understand that there was a course booked last week by a number of employees, small in number, three people attended during the week and they were rostered off for the weekend because they attended this external course, a vocational training course. I understand they were placed on the roster over the weekend and so were treated as an FTR.

PN125

The figures I have are that there were 29 applications for exemption to work on the Sunday, whether that be on the midnight shift Saturday going into the Sunday or the day/evening; and in those circumstances I understand 23 were granted. Out of those 23 that were granted either four or five were in the maintenance area but they were covered solely by volunteers so those extra three or four were not in an operational area and they were able to be accommodated and, to the best of my knowledge - well, Mr Turner hasn't particularised in any great detail numbers - I'm making the presumption that to the extent that there were absentees they were predominantly, I presume, in the operational workforce.

PN126

I understand that when some absences occurred by people ringing in sick, in strategic areas committee people who worked on the site took significant steps, particularly on the Sunday day shift, to obtain labour skilled in those particular areas so that the shift could work.

PN127

Now the extent of my responses are that I, and for that matter at this stage neither could Mr Turner, were able to determine why absences occurred and if they were more prominent on this weekend then what they may have been in the past. All I can say is that to the extent that I have asked where absences occurred and what occurred I'm told that the committee did what it could, particularly on the Sunday day shift, to ensure first aiders were available and that went to the extent of getting people to swap shift so that work could proceed. There were obviously some cases, I understand some cases where people are at least at this stage noticeably treated as being failed to report or sick, but in some of those cases there may be indeed an explicable reason why they were absent.

PN128

In relation to certain things that were said about pressing for orders last Friday well that's an unknown factor. Certainly any application would have been with submissions obviously designed to have the order not issued so we can't draw any inference from that whether the company was more likely or less likely to receive orders. I do want to put on the record, and I want it noted, that the MUA was appreciative of the step that the company took. I'm not quite sure of the precise step but I was advised that the company took steps to reduce the amount of work required on the evening shift Sunday in an endeavour to try and free up availability of skills for people who could take, or request a day in lieu or the leave day. So in response to what has been put by the company other than any administrative error that might show up people who were sick when there may have been a justifiable reason there is no criticism from my perspective about what the company did and certainly I want the record to reflect that the union was appreciative of the steps it took.

PN129

In respect of the other matters the knock on effects of non-availability and vessels missing time slots, I can offer no comment because I don't know the names of the vessels or the implications. Certainly I can tell you that to the best of my inquiries there was no contrivance to ensure that labour in the port of Brisbane was available and unable to be utilised by whatever might have occurred in the port of Sydney. My understanding is that to the best of my knowledge there had been no orchestrated campaign and that has not been acknowledged or spoken of by any of my inquiries. But the fact of the matter is if statistically there are a higher number of absences last weekend I really am not in a position to make any comment on that.

PN130

Other than that, last Friday I pressed that the application be set aside. The passage of time has passed. I think there is no significant usefulness in the application remaining on foot and there is nothing further that I can add. I would ask that the application be set aside and the union note the submissions made by the company and one would hope that we will be able to take some steps neutrally and jointly to try and see that we don't get another recurrence of the difficulty we experienced last Friday.

PN131

THE SENIOR DEPUTY PRESIDENT: Mr Turner?

PN132

MR TURNER: Thank you your Honour. I'll keep it short your Honour. In relation to the employees that were on a course those numbers aren't included in what I have explained to you so these are other employees. They have already been taken out. P&O were aware of that.

PN133

In relation to the delay, the reality was whatever steps were taken by the union, I don't know whether there were any. I'm certainly not instructed there were any, a significant delay did occur. With respect to individual circumstances I say at the beginning P&O have got a process that they will implement and follow and I don't think I should comment any further on that because obviously it would need to go through a proper investigation.

PN134

With respect to the asking for the matter to be closed. We don't have any objection to the matter being closed now, I mean the proceedings are finished. The LW should be closed as well as it derived out of exactly the same circumstances.

PN135

THE SENIOR DEPUTY PRESIDENT: That's right it does deal with the ANZAC day situation.

PN136

MR TURNER: So in those circumstances we don't have any objection, that's come and gone now. So there is no utility of leaving the files open.

PN137

THE SENIOR DEPUTY PRESIDENT: Yes I understand that. All I wish to say is this. I have noted Mr Turner outlines the position which still has to be checked. There may well be genuine reasons for unplanned absences. But if it is not so established in the great majority of cases the allegations are serious. I've been in this game long enough to have a cynical approach to the facts as alleged. I also have a long memory and am influenced by my appreciation of what is alleged to have been done particularly where undertakings in the future are involved. I have nothing more to say. I dismiss both applications and adjourn the Commission indefinitely.

ADJOURNED INDEFINITELY [4.25pm]