C2004/3617, Transcript of Proceedings [2004] AIRCTrans 2084 (4 June 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 7230

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

VICE PRESIDENT ROSS

C2004/3617

APPLICATION FOR AN ORDER TO STOP
OR PREVENT INDUSTRIAL ACTION

Application under section 127(2) of the Act
by Grocon Constructors Pty Ltd for an order
to stop or prevent industrial action at the
RACV Project site

MELBOURNE

2.16 PM, TUESDAY, 25 MAY 2004

PN1

MR J. TUCK: I seek leave to appear on behalf of the applicant.

PN2

MR J. MADDISON: I appear on behalf of the CFMEU. And while I am on my feet, your Honour, we do not oppose leave of Mr Tuck and we also foreshadow an adjournment application as an interim order is being pressed this afternoon.

PN3

MR J. COONEY: I appear for the CEPU Plumbing Division and Electrical Division and we also don't oppose leave.

PN4

THE VICE PRESIDENT: Leave is granted, Mr Tuck.

PN5

MR TUCK: Your Honour, there are two applications before you. The first relates to the Exhibition Street site which your Honour dealt with back in February/March of this year.

PN6

THE VICE PRESIDENT: I don't think that has been called on yet.

PN7

MR TUCK: Hasn't it? I apologise.

PN8

THE VICE PRESIDENT: No, only the RACV matter. That is all right.

PN9

MR TUCK: That would be the other matter that is listed and will be called on eventually.

PN10

THE VICE PRESIDENT: Yes.

PN11

MR TUCK: The other matter is the RACV site project. That is not an application that has been before you previously in relation to orders under section 127. The company has indicated that there has been a history of industrial action at that site which we will submit makes probable further industrial action in an application not dissimilar to the Exhibition Street. What has happened since last Thursday however is that there has been no work on that site and the men are still at home.

PN12

They are returning to work tomorrow morning for a mass meeting as we understand it which will be conducted by Mr Setka and other organisers and the shop stewards at that site. It involves a dispute that arose out of a leak of concrete which occurred last Thursday. The company will say that the - - -

PN13

THE VICE PRESIDENT: A leak during a pour?

PN14

MR TUCK: During the pour.

PN15

THE VICE PRESIDENT: Right.

PN16

MR TUCK: It will be the company's position that the leak amounted to approximately one wheelbarrow full of concrete. It fell into I think the amenities, to a toilet block roof and some of it fell into 140 Collins Street courtyard, which is the BHP building. There was no-one in the area at the time. The leak was noticed, work stopped, the leak was rectified and there has been a dispute since that time as whilst the men remained on site to clean up the leak and to ensure that the concrete pour was not left half finished but the remainder on the site left work on that day.

PN17

They have not returned to work since that day and there have been demands made by Mr Setka that there be payment for the lost time on Thursday when the men went home and double time payment for the concrete people who stayed back doing the concrete pour. That claim was rejected. As I understand it, the fact that the company has refused to pay the men for leaving the site on the Thursday continues to be the key issue between the parties. It is the company's position that they were not authorised to leave the site. They took industrial action on that day and the company is prevented from paying people under the Act for doing so.

PN18

We have Mr Skinner available, your Honour, to give evidence in relation to that matter. We would seek - - -

PN19

THE VICE PRESIDENT: Do you have a witness statement?

PN20

MR TUCK: Yes, we do. We have just prepared one. We haven't served it. I am happy if it is convenient to have a short adjournment to allow that to be read by Mr Maddison but we have an urgent situation, your Honour, in the sense that there is no guarantee that work will resume tomorrow.

PN21

THE VICE PRESIDENT: I think the matter has only been listed for mention.

PN22

MR TUCK: I understand that, your Honour. We would ask that the Commission put aside time to deal with an application at least for an interim order and adjourn if necessary to allow that time in the Exhibition Street project matter. We are happy, your Honour, also to have a short conference to deal with these matters if that assists. We have Mr Van Camp, the industrial relations manager of Grocon in the Commission, if anything can assist to get a resumption at the RACV we are prepared to participate.

PN23

THE VICE PRESIDENT: Okay. Thank you, Mr Tuck.

PN24

MR MADDISON: Your Honour, in respect of the events that led to the stoppage that Mr Tuck alleges, we say that there was what was by any account a serious incident and proper processes in place at the site to investigate and rectify what happened. We say that what led to the actual dispute was the fact that an agreement was reached at site level on Thursday as to how the matter would be dealt with.

PN25

THE VICE PRESIDENT: When did the incident take place? I know it was Thursday but what time?

PN26

MR MADDISON: Around about 10 o'clock I am instructed, your Honour.

PN27

THE VICE PRESIDENT: Right. And you say that an agreement was reached at that time. What was the agreement?

PN28

MR MADDISON: On my instruction there was an agreement reached as to a number of matters including an audit investigation, the resulting clean up including the rates of remuneration for those that would undertake the clean up work that was required as a result of the incident, as well as for the concretors who, as Mr Tuck has indicated, went on and completed the pour.

PN29

THE VICE PRESIDENT: How many concretors were working at that time?

PN30

MR MADDISON: On my instructions, your Honour, about a dozen, 10 to 11.

PN31

THE VICE PRESIDENT: And the workers who did the clean up?

PN32

MR MADDISON: About half a dozen approximately, your Honour. Four I am further instructed.

PN33

THE VICE PRESIDENT: So there was a spill of an amount of concrete at 10 am during a pour. On the basis of what Mr Tuck said there was a short stoppage to investigate that and then you say an agreement was reached regarding remuneration what, for the concretors to continue the pour and for those who would do the clean up, is that the essence of it?

PN34

MR MADDISON: Yes, your Honour.

PN35

THE VICE PRESIDENT: What was the nature of the agreement?

PN36

MR MADDISON: That those persons would be paid double time rates.

PN37

THE VICE PRESIDENT: For the balance of that work on that day or until they finished doing what they were doing?

PN38

MR MADDISON: Until they finished what they were doing and my instructions, your Honour, the pour continued till about 4.30. I understand the clean up work may have finished an hour or so earlier than that. Sorry, your Honour, 6.30 the pour continued till.

PN39

THE VICE PRESIDENT: When did the clean up work finish?

PN40

MR MADDISON: About 3 o'clock.

PN41

THE VICE PRESIDENT: Who was this agreement with?

PN42

MR MADDISON: With local site management, Ian Skinner and Greg. I am not quite sure how you pronounce his surname, your Honour, Glesumini, perhaps and Peter Green, Grocon's site safety manager. I am not sure again, your Honour, of his proper title.

PN43

THE VICE PRESIDENT: Right. And what do you say happened then?

PN44

MR MADDISON: What led to the dispute is on the next day, on the Friday morning where Grocon, what we say, reneged on that arrangement, that agreement and said that the people who did complete the clean up work and the concrete pour would only be paid at single time and that is what led to the current state of affairs. Your Honour, the expectation certainly amongst those who did that work was that they would be getting paid penalty rates because they were informed that prior to them completing their tasks on the Thursday, on the basis of what the union understood had been agreed at the site.

PN45

I certainly agree with Mr Tuck that a conference would be appropriate in relation to this. In relation to Mr Tuck's other perhaps suggestion that the Exhibition Street site matter be put to one side and the RACV one be dealt with this afternoon, it is the first I have heard of this suggestion. Obviously - and file materials late yesterday as well as this morning and have been getting instructions speaking to the witnesses in relation to the Exhibition Street, as Mr Tuck has indicated, we have not been provided with any material.

PN46

We are not certainly in a position this afternoon to run a case in relation to the RACV matter, though obviously I do have some limited instructions but not to the extent to be able to run a case. If Mr Tuck had indicated earlier on the day that that was the intention it may have been a little bit different. But in any event, your Honour, we wouldn't oppose a conference at this stage.

PN47

THE VICE PRESIDENT: Mr Cooney, is your position similar to that?

PN48

MR COONEY: Your Honour, we would just simply support what Jesse Maddison said and would ask the Commission go into conference.

PN49

THE VICE PRESIDENT: All right, thanks. Yes, Mr Tuck.

PN50

MR TUCK: Your Honour, can I just mention one thing before which puts a view as to what the Commission ought to do. It shouldn't be forgotten that the men left the site on the Thursday before the supposed agreement work of double time had even commenced and what is missing from the explanation of the union is that those men did leave the site and there has been a claim in relation to the payment of those men leaving the site. If the Commission pleases.

PN51

THE VICE PRESIDENT: All right. Well, I propose to adjourn into conference in relation to the RACV matter and see if we can reach a resolution at least in relation to process, if not the substantive issues before turning to the Exhibition Street matter. So I will adjourn into conference now.

SHORT ADJOURNMENT [2.29pm]

RESUMED [4.02pm]

PN52

THE VICE PRESIDENT: It is apparent that at least one of the issues in dispute between the parties arises from a difference in perception between the parties as to what was said at a meeting on 20 May when the incident in relation to the spillage of concrete took place and what agreement if any arose from that discussion. In an effort to resolve that issue and the general dispute I propose to make a recommendation in respect of this matter.

PN53

The recommendation is in three parts. The first is that there be an immediate resumption of normal work on the RACV site tomorrow morning without the imposition of any bans and limitations. The second issue deals with the disagreement that I referred to a moment ago and that is that Grocon is to make a payment to the workers engaged in the concrete pour and clean up on 20 May on the following basis: Concretors and pump operators are to be paid an additional hour's pay or part thereof at their base rate of pay, that is, not including site allowance, for each hour part thereof worked from 12.30 pm until they finished work later that day as shown on their individual time sheets.

PN54

Labourers engaged in the clean up work are to be paid an additional four hours pay at their base rate of pay, that is, not including site allowance. I just note that it would appear that there were about 11 concretors and two pump operators, though that is to be confirmed on the basis of the time sheets and there were four labourers engaged in the clean up work. The third element of the recommendation is that any other claim in respect of this stoppage, that is, for the time on Friday, Monday and today, is to be processed in accordance with the Grocon Victoria Enterprise Agreement 2002 to 2005.

PN55

That is the recommendation. I seek an indication from the parties as to their acceptance of it on the part of Grocon and on the part the CFMEU their preparedness to recommend and the CEPU their preparedness to recommend that recommendation at the meeting that is to be held on site tomorrow morning. Mr Tuck?

PN56

MR TUCK: Your Honour, I am instructed to indicate that the company will accept that part of the recommendation and it places an obligation on it.

PN57

THE VICE PRESIDENT: Thank you. Mr Maddison.

PN58

MR MADDISON: Thank you, your Honour. The CFMEU for its part will recommend the recommendation to our members employed at the RACV site tomorrow morning.

PN59

THE VICE PRESIDENT: All right, thank you. Mr Cooney.

PN60

MR COONEY: Thank you, your Honour. The CEPU, both divisions would present the recommendation at the site meeting tomorrow morning.

PN61

THE VICE PRESIDENT: All right, thank you. In relation to the company's 127 application, while I am confident that the unions will be persuasive and the recommendation will be accepted by the workers on site and on that basis there will be an immediate resumption of normal work, what I propose to do in relation to the application is to adjourn the company's application. The company may seek the re-listing of that application at short notice in the event that there isn't a resumption of work tomorrow morning. Is there anything else to be said in relation to the application at this stage?

PN62

MR TUCK: Nothing else, your Honour.

PN63

MR MADDISON: No, your Honour.

PN64

THE VICE PRESIDENT: All right. Well, I adjourn that matter.

ADJOURNED INDEFINITELY [4.06pm]