C2003/6510, Transcript of Proceedings [2004] AIRCTrans 226 (9 January 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 5800

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

VICE PRESIDENT ROSS

C2003/6510
C2003/6511

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 re
alleged industrial action at
various Grocon sites

RESTRICTIONS IN TORT

Notice under section 166A of the
Act by Grocon Constructors Pty Ltd
re action against Construction,
Forestry, Mining and Energy Union
and another re alleged industrial
action at various Grocon sites

MELBOURNE

10.42 AM, MONDAY, 22 DECEMBER 2003

Continued from 2.12.03

PN138

MR R. WAINWRIGHT: I appear for the Construction, Forestry, Mining and Energy Union, and with me is MR J. MADDISON.

PN139

MR J. TUCK: I appear on behalf of the applicants.

PN140

THE VICE PRESIDENT: Mr Tuck, the application you made on behalf of your client for an adjournment of the proceedings, essentially on the basis of unavailability and that there be no prejudice to the union, was opposed by the union so I listed it this morning for the purpose of hearing argument, firstly as to what the union proposes be done in relation to this matter, given the time of year and the difficulty in contacting people; and then, having heard the union in relation to it, then from yourself as to the further progressing of the matter.

PN141

MR TUCK: Thank you, your Honour.

PN142

THE VICE PRESIDENT: So perhaps if I hear from Mr Wainwright first. Mr Wainwright?

PN143

MR WAINWRIGHT: Yes. Thank you, your Honour. We did ask for this matter to be brought back on pursuant to your statement and recommendations issued on 1 December where you put at point 3 that the parties were directed to develop and implement an agreed gas emergency procedure plan. The parties have worked assiduously at that task. We have had three fairly high level meetings on the site between all of the unions and representatives of the employer, and the latest meeting was on 18 December. However, your Honour, I have to report that we have not reached an agreement on that plan or on some fairly fundamental issues underpinning the plan.

PN144

Our approach upon reading the applicant's view about the matter being brought back on was that it was important to try and progress the issue whilst the site was shut down for two reasons. Firstly,so that when our members return to work on the 12th that they could return to a safe site; and secondly, because the site is, as you know, occupied currently to retail outlets and members of the public are on site at the moment, and we have been put on notice by WorkSafe that the site emergency evacuation procedure requires updating, and that is a task that we have been pressing and pressing on the company and we don't think they have made enough progress on.

PN145

So those are the two reasons why we thought it was important to be put back on today, and we were hoping to have fruitful discussions with the company. As the company is unrepresented by any personnel I don't think that we can have those discussions, so I will make some suggestions about what we should do. But before I get to that, your Honour, could I possibly seek to have marked the two items of correspondence that I have forwarded to your office, and I understand the solicitors for the applicant also have. They are dated 16 December from the CFMEU. One is to Alan Becom from WorkSafe. Do you need me to hand that up, your Honour, or just to have that marked.

PN146

THE VICE PRESIDENT: No. They are on the file. Do I need to mark them? Is there a particular - - -

PN147

MR WAINWRIGHT: Just in case they are referred to in any following proceedings.

PN148

THE VICE PRESIDENT: All right.

EXHIBIT #W1 LETTER TO MR BURLEIGH DATED 16/12/2003

EXHIBIT #W2 LETTER TO MR BECOM DATED 16/12/2003

PN149

MR WAINWRIGHT: Now, your Honour, I have, I suppose, some fairly detailed submissions to put to you about where the parties are in disagreement. It may or may not be useful to do that.

PN150

THE VICE PRESIDENT: Probably not at this point.

PN151

MR WAINWRIGHT: Yes. Given - - -

PN152

THE VICE PRESIDENT: Given their company is represented by its solicitors but they don't have anywhere here who was probably directly involved in the discussion so - but what do you say I should do in relation to the matter now?

PN153

MR WAINWRIGHT: What we seek that you do is to issue directions that the parties confer in the week beginning 5 January and are represented by appropriate people, and I suppose I will make a suggestion about who that is from the company's side, with a view to having an agreed policy plan by the time the site returns to work on the 12th, and also with the ability to bring the matter back to you before the 12th.

PN154

THE VICE PRESIDENT: Well, the difficulty with that is I won't be here until the 19th.

PN155

MR WAINWRIGHT: It will be difficult to bring it back to you then.

PN156

THE VICE PRESIDENT: Well, unless you want to go to the south coast of New South Wales for the hearing it will be.

PN157

MR WAINWRIGHT: I would love to go to the south coast of New South Wales.

PN158

THE VICE PRESIDENT: I can have it allocated to another Member.

PN159

MR WAINWRIGHT: Yes.

PN160

THE VICE PRESIDENT: That is the other alternative.

PN161

MR WAINWRIGHT: Well, if in the directions it is simply that meetings occur. We would suggest that the company be represented with people of the ilk of Mr Van Camp or Mr Bortoletto to enable them to make the decisions that they need to make.

PN162

THE VICE PRESIDENT: Has the Office of Gas Safety been involved in the discussions between the parties to date?

PN163

MR WAINWRIGHT: Well, at a distance, yes. We have also involved the Metropolitan Fire Brigade and they had something to say about the procedures that have been in place, and have provided quite a detailed plan to be put in place, but the company doesn't think that it is appropriate. That is one of the major points that we are in disagreement about.

PN164

THE VICE PRESIDENT: Okay. Because ultimately, if the matter has to be determined, then obviously any evidence or material from organisations such as the Office of Gas Safety and the Metropolitan Fire Brigade would be, I would have thought, of central importance.

PN165

MR WAINWRIGHT: Yes. We are keen, because I think we agreed last time that the people before you, and perhaps the Commission as it is currently constituted, were not well versed in matters of gas, and we have - - -

PN166

THE VICE PRESIDENT: I am certainly not, so - - -

PN167

MR WAINWRIGHT: And we have had advice from the Metropolitan Fire Brigade that the procedures that are in place are inadequate, so we would be keen to call that expert evidence to guide the Commission. But at the moment I think the best we can do is to seek that you direct the parties to meet in that week and to inform the parties that they have the ability to have the matter called on before a Member of the Commission in that week, so that some work can be done before the site returns.

PN168

THE VICE PRESIDENT: Okay. Mr Tuck, do you know what the availability is of the relevant personnel from the company?

PN169

MR TUCK: I understand they will be back on 12 January, your Honour. Can I just make one point? Mr Wainwright says the site isn't safe, but WorkSafe have never found that. The Office of Gas Safety have given an amended gas emergency procedure plan which the union had looked at. It was sent through the Office of Gas Safety and they have sent that back on 19 December as an approved procedure. So as far as the Office of Gas Safety is concerned the site is safe, and WorkSafe has never said the site is unsafe.

PN170

THE VICE PRESIDENT: I think there would be some - I don't think there is much purpose in me issuing a direction that the parties confer in the week beginning 5 January if half of the parties aren't available. I think the parties ought to meet and confer as soon as practicable. From my perspective I think it would be useful. The difficulty is no doubt going to be that in isolation WorkSafe, the MFB and the Office of Gas Safety may be saying different things, which can lead to some confusion and they may be reacting to whatever they have been told as well.

PN171

From my perspective it would be useful if a meeting could be convened involving those parties so that each side can hear what each of the organisations is saying, because it seems at the moment if the Fire Brigade is expressing some concern with the plan that the Office of Gas Safety has approved - it may be that that is not the case. It may be that they are expressing a concern in abstract without having seen the plan or understood the reasons why the Office of Gas Safety is satisfied with it. Rather than have sort of the parties going off independently to other bodies it would be useful if those bodies were around the table with the parties, and the document that you have referred to, Mr Tuck, can be put on the table and issues can be raised in relation to it, if indeed there are any.

PN172

MR TUCK: Well, if that can take place after the 12th, if that - soon as practicable after that date.

PN173

THE VICE PRESIDENT: Yes.

PN174

MR TUCK: In that circumstance, your Honour, we wouldn't see the need for any further direction other than that.

PN175

THE VICE PRESIDENT: All right. Well, Mr Wainwright, leave aside the question of power, I am not sure I can compel someone to come back from annual leave in the circumstances we have got in the moment, even assuming that they were contactable. What I would be minded to do is to direct the parties to confer in the week - as soon as practicable in the week commencing the 12th; that the parties make arrangements for the relevant expert bodies to be involved in those discussions: WorkCover, the MFB, and the Office of Gas Safety. There is no reason why attempts can't be made, at least in a tentative way, by the representatives who are at the Bar table to contact those bodies and set up the tentative meeting, obviously subject to the availability of Mr Van Camp and Mr Bortoletto and whoever else from the company that it wishes to have attend.

PN176

You can get in touch with them immediately really, those other bodies: WorkCover, the MFB, and the Office of Gas Safety, with a view to attending a meeting in that week. It is obviously - there is liberty to apply to either side should those discussions not take place or break down, and a Member of the Commission will be allocated in that week to deal with it. If not, I would list the matter for report back on - probably for report back, and it would be a short report back, at 10 am on Monday, the 19th. If the matter requires a hearing it would be heard later that week. It is just that I am on the appeal roster for the first - and appeals are listed for the first three days of that week, and the Office of the Employment Advocate has got me occupied on the Friday. But hopefully you will be able to sort something out and I would encourage both of you to get the expert organisations around the table with each of you there, so there is no miscommunication as to what one or the other is saying. Okay? Anything further?

PN177

MR TUCK: Nothing, sir.

PN178

THE VICE PRESIDENT: All right. I will adjourn.

ADJOURNED UNTIL MONDAY, 19 JANUARY 2004 [10.55am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #W1 LETTER TO MR BURLEIGH DATED 16/12/2003 PN149
EXHIBIT #W2 LETTER TO MR BECOM DATED 16/12/2003 PN149