C2003/6799, Transcript of Proceedings [2004] AIRCTrans 1764 (11 May 2004)

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TRANSCRIPT OF PROCEEDINGS


O/N 6933
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT DUNCAN

C2003/6799

MARITIME UNION OF AUSTRALIA

and

SKILLED ENGINEERING LIMITED

Notification pursuant to section 99 of the Act
of a dispute re terms and conditions of
employment

MELBOURNE

9.33 AM, FRIDAY, 30 APRIL 2004

Continued from 29.4.04

PN6717

THE SENIOR DEPUTY PRESIDENT: Yes, Ms Paul.

PN6718

MS PAUL: Sir, after conversation with my learned friend, it has been agreed that we would only require one witness this morning, that will be Mr Fitzgerald who I will call shortly, so that we could finish the administrative side. There was a further witness who we would call today, Mr Blake, and without any objection and without any of the amendments, if we could tender his statement as evidence?

PN6719

THE SENIOR DEPUTY PRESIDENT: I see. Well, we will deal with that now.

EXHIBIT #AIG10 STATEMENT OF PETER BLAKE MADE ON 06/04/2004 PREPARED FOR THESE PROCEEDINGS

PN6720

THE SENIOR DEPUTY PRESIDENT: Yes, Ms Paul.

PN6721

MS PAUL: Sir, if I may now call Mr Ray Fitzgerald?

<RAY FITZGERALD, SWORN [9.35am]

<EXAMINATION-IN-CHIEF BY MS PAUL

PN6722

MS PAUL: Mr Fitzgerald, for the purposes of this hearing did you cause a statement to be drafted?---Sorry, could you just - - -

PN6723

Did you cause a statement to be drafted?---Yes, I did, yes.

PN6724

Sir, if I may just take the amendments that we seek to make and then tender it through the witness.

PN6725

At paragraph 5, where there is a second line, where there is a reference to "Patricks", if we could delete the "s", it should just be "Patrick". And the same at paragraph 6 and paragraph 7, any reference to Patricks, with an "s", there should be deleted, sir. And at paragraph 14 where the reference to Patricks, if that could be an "apostrophe s". At paragraph 16, the second line. At the end of the second line, sir, it says "from". If that could be deleted and replaced with the word "to". And the last sentence, if you could delete the word "we" and place the word "they" instead. And between the words "would" and "the", if we could have the word "be".

PN6726

THE SENIOR DEPUTY PRESIDENT: "They would be - - -

PN6727

MS PAUL: "...be put through our selection process".

PN6728

THE SENIOR DEPUTY PRESIDENT: Oh, "the" comes out?

PN6729

MS PAUL: Yes, sir. They would be - sorry. The "the" comes out.

PN6730

THE SENIOR DEPUTY PRESIDENT: Yes.

**** RAY FITZGERALD XN MS PAUL

PN6731

MS PAUL: At paragraph 27, first line, there is a word that says "lodging". That should be "lodged". Paragraph 29, in the first line there is a word that says "required". That should be deleted and replaced with the word "requested". And just generally, sir, any reference to "Patricks" should be "Patrick". Mr Fitzgerald, with those amendments, are the contents of your statement true and correct?---Yes.

PN6732

Sir, we seek to tender that statement.

PN6733

THE SENIOR DEPUTY PRESIDENT: Very well. Subject to the standard reservations, I mark the statement of Ray Fitzgerald, prepared for these proceedings, as amended, exhibit AIG11.

EXHIBIT #AIG11 STATEMENT OF RAY FITZGERALD PREPARED FOR THESE PROCEEDINGS, AS AMENDED

PN6734

THE SENIOR DEPUTY PRESIDENT: My associate draws my attention to a number of dates in paragraph 27, 28 and 29 which, pretty obviously, should be 2003 not 2004.

PN6735

MS PAUL: Sorry, sir, yes, that should be 2003. Paragraph - if I can make a further amendment paragraph 28 and 29, "2003" and 30, sir.

PN6736

THE SENIOR DEPUTY PRESIDENT: Yes. They are to be found in 27, 28, 29 and 30, I believe.

PN6737

MS PAUL: Mr Fitzgerald, do you agree with those - that those are the dates that are given?---Yes.

**** RAY FITZGERALD XN MS PAUL

PN6738

Yes, I have no further questions.

PN6739

THE SENIOR DEPUTY PRESIDENT: Very well, Mr Bromberg?

PN6740

MR BROMBERG: Thank you, your Honour.

<CROSS-EXAMINATION BY MR BROMBERG [9.38am]

PN6741

MR BROMBERG: Mr Fitzgerald, at paragraph 18 of your statement you respond to paragraph 16 of Mr Doleman's statement in which he refers to Skilled - having committed to - that it would not employ outside of the Transfield workforce. Do you recall that bit of your evidence?---Yes.

PN6742

All right, now, at paragraph 17 you go further than simply saying that a commitment was made, you say, there was actually an agreement, that is right, is it not?---There was no agreement to employ only Transfield people.

PN6743

There was an agreement, you say, to employ from the ex-Transfield employees at the initial stage. That you would restrict your selection to ex-Transfield employees?---Any Transfield employees.

PN6744

Yes, all right, now, what I am trying to establish is that you put that by way of an agreement but you don't deny that it was also a commitment?---A commitment too, yes.

PN6745

Yes, okay, now, let us just deal with that commitment or agreement, depending on how it is to be characterised, that was a, at least, a commitment to recruits from the ex-Transfield employees by applying a fair selection process to choose as between the ex-Transfield employees, the employees - the best employees for the available positions?---Correct.

**** RAY FITZGERALD XXN MR BROMBERG

PN6746

You agree with that, don't you. Now, as I understand your evidence - tell me if I am wrong - it was your understanding that if you honoured your commitment and no employment agreements were made with the ex-Transfield employees you would be free to recruit from wherever you chose?---Correct.

PN6747

Now, you agree with me, don't you, that offers of employment are commonly subject to negotiations?---yes.

PN6748

And making of employment agreements usually does require some time between the making of any offers and the acceptance or rejection of them?---It can do.

PN6749

It can do, it is not unusual, is it?---Well, depending on the circumstances.

PN6750

Yes, all right, for instance, the making of agreements requires that the offers be communicated to the employees?---Correct.

PN6751

Requires an opportunity for the employees to consider those offers?---Yes.

PN6752

Requires an opportunity for employees to respond?---Yes.

PN6753

And if the employees seek to respond by seeking changes, requires a fair and reasonable opportunity for those changes to be negotiated?---Yes.

**** RAY FITZGERALD XXN MR BROMBERG

PN6754

In paragraph 29 you say that you notified the MUA about which candidates had been selected and on that day you would agree, wouldn't you, that there were not only negotiations about who was to be selected, but also negotiations, as you say in paragraph 19, about roster arrangements, pay rates and the like?---Correct.

PN6755

THE SENIOR DEPUTY PRESIDENT: Paragraph?

PN6756

MR BROMBERG: 29.

PN6757

THE SENIOR DEPUTY PRESIDENT: 29, yes.

PN6758

MR BROMBERG: And as at 15 November those negotiations remained ongoing, didn't they?---Yes.

PN6759

Yes, all right and on 17 November you were hopeful that the employees who had been made offers would commence their employment but that in fact didn't occur?---That is correct.

PN6760

Yes. And on 17 November and thereafter negotiations continued with the MUA about these employments and they were ultimately resolved on 21 November 2003?---That is correct.

PN6761

And on 17 November and in a number of subsequent conversations you had, in particular, Mr Doleman, you make it clear, didn't you, that the negotiations had to be resolved by 21 November otherwise you would go and recruit elsewhere?---We had a contract, started on the 17th.

PN6762

Yes?---All stops were out to do what we could to honour our contract, yes.

**** RAY FITZGERALD XXN MR BROMBERG

PN6763

Yes, no, I understand your reasons for it but you confirm what I am putting to you, that you make it clear - - -?---Yes.

PN6764

- - - that those negotiations had to be resolved by the 21st?---I made it clear that if the people didn't take up the employment opportunities - they were offered the positions, then we would recruit, do whatever we had to do.

PN6765

Yes, okay, now, in relation to the employment of Mr Tingey and Mr Coyle, you weren't directly involved, as I understand it, but you were kept informed by Mr McKenzie, were you?---We had discussions from time to time.

PN6766

Yes. As far as you know you were well informed by Mr McKenzie about those employments?---All these things were going on in a fairly tight time frame. I wasn't directly - as you said before, I wasn't directly involved in those discussions. I was trying to resolve the disputes - - -

PN6767

Yes?--- - - - all over and yes, but we certainly had discussions from time to time about many things.

PN6768

Yes. Well, Mr McKenzie was involved in some of the meetings in Sydney as well, wasn't he, he was there with you?---There were some meetings that I didn't attend where he may have.

PN6769

All right and you were involved in the decision made to employ Mr Tingey and Mr Coyle?---I was aware that they were employed.

PN6770

Yes and you were aware of the nature of the employment offered to them?---Yes.

PN6771

Just as a matter of clarification, if you look at paragraph 32 of your statement, when you say, second last line:

**** RAY FITZGERALD XXN MR BROMBERG

PN6772

Skilled offered positions to external candidates.

PN6773

The people you are talking about there are Mr Tingey and Mr Coyle?---Well, they could have been anyone.

PN6774

No, no, see, it says:

PN6775

In order to meet the contractual requirements with Patrick Skilled offered positions to external candidates.

PN6776

?---Yes, that was after - - -

PN6777

Do you have in mind there, when you talk about external candidates, do you have in mind Mr Coyle and Mr Tingey?---I didn't - I wasn't involved totally in all those recruitments so - what my statement there says that whoever we could get. Whoever they wanted to, you know, engage, they could engage.

PN6778

Oh, I see, so at that time your representation was about what you would do rather than what you had done. Is that what you mean?---That was after people rejected the offers of employment.

PN6779

Yes?---They were free to employ who they wanted to employ.

PN6780

All right, so that is to be understood as a statement of what you intended to do rather than what you had done. Is that right?---That was - - -

PN6781

All right?--- - - - to meet our - as it says, to meet our contractual arrangements they could employ who they needed to employ.

**** RAY FITZGERALD XXN MR BROMBERG

PN6782

All right. At paragraph 34 you say - you indicated that you had offered employment to other individuals who had accepted the offers. Are you there talking about Mr Tingey and Mr Coyle?---Once again, that is similar to the previous one, they could employ who they wanted to.

PN6783

No, no, you say, Skilled had offered employment to other individuals?---That was my understanding.

PN6784

Yes and - but your understanding related to Mr Tingey and Mr Coyle. I am not suggesting it was limited to those two individuals?---They were, yes.

PN6785

But it related to them?---They would have been part of it, yes.

PN6786

Yes, all right and at paragraph 37 when you told the MUA that you had filled two positions and they had been filled by external candidates and you are not prepared to terminate or shift them, again, you had in mind Mr Tingey and Mr Coyle?---At that stage, yes.

PN6787

Now, although your statement makes reference to the selection process utilised by Skilled at Fisherman's Island - sorry, Fisherman Island - you weren't directly involved in that selection process, were you?---No.

PN6788

Now, at or about 6 November - perhaps prior to 6 November, you told the MUA that for Fisherman Island you would only employ 15 permanents and no casuals?---Yes, there was some debate there about the numbers that were required at the time.

PN6789

But you made it clear that it was your intent - - -?---If they didn't require, we didn't - I was informed that they didn't require casuals, they would be able to do it with the 15, yes.

**** RAY FITZGERALD XXN MR BROMBERG

PN6790

Were you ever informed of a change of intent in that respect?---I can't quite recall.

PN6791

You can't ever - you can't recall?---Look, as I said, the numbers were - yes, both at Fisherman Island and at Port Botany there was, as you can imagine, a lot of debate about numbers and me not being closely involved with that. That was more an operational role.

PN6792

Thank you, I have no further questions.

PN6793

THE SENIOR DEPUTY PRESIDENT: Any re-examination?

PN6794

MS PAUL: Just some short questions, sir.

<RE-EXAMINATION BY MS PAUL [9.52am]

PN6795

MS PAUL: You were asked in the beginning about in making employments agreements, it takes time and it is not unusual in terms of individuals being given opportunities to respond. Around the time that these individuals were given - the individuals at Fisherman Island were given Transfield - sorry, I will rephrase that. At the time - around that 14th to 17 November when they were provided offers of employment, was there anything unusual that actually did occur that normally wouldn't occur in an employment process, so far as you are aware?---Well, the thing that occurred - are you talking about getting the employment contracts?

PN6796

Once the employment contracts had been sent out, it was put to you that it is not unusual for time to be taken for individuals to consider offers and negotiate offers and agreements, etcetera?---Yes.

PN6797

Was there anything unusual that did occur at that time?---Well, as I said previously, we were dealing with the union, we weren't to deal with the - directly with the employees, this was a time frame that we had to negotiate these things with the union.

**** RAY FITZGERALD RXN MS PAUL

PN6798

Okay. On 17 November, when you started the contract, it is in evidence that there were no - none of the Transfield employees had accepted - sorry, none of the Transfield employees had turned up to work?---Yes, on the 17th, yes.

PN6799

Yes. What was your understanding of what the Transfield - those Transfield employees, we will call them the candidates, what was your understanding in relation to their offers of employment?---What was my understanding of their offers?

PN6800

Of their reaction to your offers of employment?---They had been - they were told that they weren't to take up the offers.

PN6801

And how were you aware of that?---The MUA informed the - informed Skilled Engineering.

PN6802

Well, what did the MUA actually inform you?---That they weren't to take up the offers of employment. That was informed to Skilled and I received that via Skilled employees.

PN6803

Now, you were also asked about the fact that you had indicated to the MUA that the issue had to be resolved by 21 November or you would recruit elsewhere?---Correct.

PN6804

When did you inform the MUA that you intended to recruit elsewhere?---When did we inform them?

PN6805

When did you inform the MUA that you would need to recruit elsewhere?---Well, after that - after the - that was all part and parcel of that, that, you know, it was - - -

**** RAY FITZGERALD RXN MS PAUL

PN6806

What sort of time frame, what dates?---What date? Look, I am not sure of the date exactly. It was some time after the 17th - it would have been some time after the 17th.

PN6807

Okay?---Because that is when we said they had to, you know, come on board, take - pick up the offers, they didn't, we go elsewhere.

PN6808

Did you intend to give them a - sorry, when you informed them of that, was there an intention that they had only 'til the - they had to the 21st or was there an earlier date that you wanted them to resolve it?---Well, we would have liked to resolve it much earlier than that but they didn't - they told them to reject the letters of offer and left us stranded with the contract so - - -

PN6809

When you had - when you realised that they had rejected the letters of offer?---Yes.

PN6810

What was your understanding of the commitment that - or the agreement, commitment or agreement, that you had made with the MUA about only recruiting from the Transfield employees?---It was all over, it was a finished, there was no obligation.

PN6811

Was do you say there was no obligation?---Well, we had made an arrangement which had been knocked back.

PN6812

You were also asked about discussions Mr McKenzie had with you in terms of Mr Tingey and Mr Coyle and did - can you recall if Mr McKenzie gave - the details Mr McKenzie gave you in relation to the discussions you had about Tingey and Coyle?---Sorry, could you just repeat that again?

PN6813

Can you recall what discussions you actually had with Mr McKenzie relating to Tingey and Coyle?---Can I recall the discussions?

**** RAY FITZGERALD RXN MS PAUL

PN6814

Yes, can you recall what Mr McKenzie told you?---About?

PN6815

Tingey and Coyle?---About when?

PN6816

In the period of 17 November to 21 November?---As far as I am aware the discussions would have been about them - after the 17th that they would have been able - they would have started work at the site.

PN6817

Did Mr McKenzie give you - - -?---They would have been appointed.

PN6818

Did Mr McKenzie give you any details about Tingey and Coyle - Mr Tingey's and Mr Coyle's employment terms?---Yes, they were employed because I think they were originally employed from some other source, that is all I was aware of.

PN6819

So were you shown any documents or were you provided any information regarding the details of their employment terms and conditions - - -?---No, no.

PN6820

Were you involved in any part of the selection process regarding Mr Tingey and Mr Coyle?---No.

PN6821

At paragraph 34 of your statement, you say:

PN6822

I also indicated that I had offered employment to other individuals who have accepted offers.

PN6823

At what time - at what stage or what time frame did you know the nature of the contents or the nature and the contents of the actual offers that were made?---Sorry, the offers of - - -

**** RAY FITZGERALD RXN MS PAUL

PN6824

In relation to paragraph 34?---Yes.

PN6825

You say:

PN6826

I also indicated that I had offered employment to other individuals who have accepted the offers.

PN6827

At what - when did you know about - sorry, did you know about the nature and content of what those offers were?---I did see a draft of a formal - what Skilled used as an offer, I don't know - I didn't see the final offer that was put to them.

PN6828

Were you involved in the drafting of any other part of putting that offer to them?---They were a standard Skilled offer of employment I think and it was - the operations people made some changes to it I think to suit the needs and there was a meeting I think - - -

PN6829

Sorry, Mr Fitzgerald, I need - which offer - sorry. In terms of the offers, which offers are you talking about?---The offers to all employees you are talking about?

PN6830

No, sorry, the evidence you just gave was that in relation to the offers to the Transfield employees, is that what you are talking about?---The offers of employment?

PN6831

To who?---To the - to all the Transfield employees, yes.

PN6832

All right?---Yes.

PN6833

In relation to the offers of employment to Tingey and Coyle, did you - were you aware of any of the contents - - -?---I wasn't.

**** RAY FITZGERALD RXN MS PAUL

PN6834

- - - or the nature of the offers made to Tingey and Coyle?---No, I wasn't. I wasn't of those two, no.

PN6835

No further questions, sir.

PN6836

THE SENIOR DEPUTY PRESIDENT: Very well. Thank you, Mr Fitzgerald?---Thank you.

PN6837

MS PAUL: If the witness could be excused.

PN6838

THE SENIOR DEPUTY PRESIDENT: Yes. You are excused.

<THE WITNESS WITHDREW [10.00am]

PN6839

THE SENIOR DEPUTY PRESIDENT: That is it, is it not?

PN6840

MS PAUL: Sir, that closes the witness evidence. I believe that there is one further short witness to be in Sydney.

PN6841

THE SENIOR DEPUTY PRESIDENT: Yes, one for the - - -

PN6842

MS PAUL: So I have a personal request, and I haven't raised this with my friend; if we could start at 10 o'clock in Sydney, that would assist me. But if it is not possible, that is - I could - - -

PN6843

THE SENIOR DEPUTY PRESIDENT: Well, I am happy to start at 10.

PN6844

MS PAUL: If that is amenable.

PN6845

THE SENIOR DEPUTY PRESIDENT: As long as we finish in the day.

PN6846

MS PAUL: It is a personal request on my part, sir, if that is agreeable to my friend.

PN6847

MR BROMBERG: Your Honour, I am always happy to accommodate. I do think it is going to be a long day though.

PN6848

THE SENIOR DEPUTY PRESIDENT: Yes.

PN6849

MR BROMBERG: There is a lot to get through in submissions.

PN6850

THE SENIOR DEPUTY PRESIDENT: I agree.

PN6851

MR BROMBERG: Can I ask your Honour whether the summons to Mr Driscoll has been reissued?

PN6852

THE SENIOR DEPUTY PRESIDENT: I don't think it has.

PN6853

MR BROMBERG: Right, well - - -

PN6854

THE SENIOR DEPUTY PRESIDENT: It is still to be done, Mr Bromberg.

PN6855

MR BROMBERG: Yes, thank you, your Honour. We will make contact with your Honour's associate about that so it can be served before the 6th.

PN6856

THE SENIOR DEPUTY PRESIDENT: Yes, yes. Very well. I adjourn these proceedings until 6 May, in Sydney at 10 am.

ADJOURNED UNTIL THURSDAY, 6 MAY 2004 [10.02am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #AIG10 STATEMENT OF PETER BLAKE MADE ON 06/04/2004 PREPARED FOR THESE PROCEEDINGS PN6720
RAY FITZGERALD, SWORN PN6722
EXAMINATION-IN-CHIEF BY MS PAUL PN6722
EXHIBIT #AIG11 STATEMENT OF RAY FITZGERALD PREPARED FOR THESE PROCEEDINGS, AS AMENDED PN6734
CROSS-EXAMINATION BY MR BROMBERG PN6741
RE-EXAMINATION BY MS PAUL PN6795
WITNESS WITHDREW PN6839