C2004/4336, Transcript of Proceedings [2004] AIRCTrans 2757 (19 July 2004)

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TRANSCRIPT OF PROCEEDINGS


O/N 703
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

DEPUTY PRESIDENT BLAIN

C2004/4336

APPLICATION FOR AN ORDER TO STOP
OR PREVENT INDUSTRIAL ACTION

Application under section 127(2) of the Act
by CBI Constructors Pty Ltd for an order to
stop or prevent industrial action at the
Burrup Fertilisers Ammonia Plant Construction
Project Site

PERTH

3.37 PM, THURSDAY, 8 JULY 2004

PN1

MR M.G. COLEMAN: I appear for CBI Constructors Pty Ltd.

PN2

MR L. EDMONDS: Yes, sir, thank you, sir. I appear on behalf of the Australian Manufacturing Workers Union, sir, appearing with MR C. SAUNDERS, the president of our organisation.

PN3

MS K. SCOBLE: May it please the Commission, I appear on behalf of the Construction, Forestry, Mining and Energy Union.

PN4

THE DEPUTY PRESIDENT: Mr Coleman?

PN5

MR COLEMAN: Thank you, Deputy President. Maybe the way to proceed with this is if I make a preliminary statement and get some of the information before you so that we can take the matter forward?

PN6

THE DEPUTY PRESIDENT: Yes, I'm in your hands, Mr Coleman.

PN7

MR COLEMAN: The current situation is, Deputy President, that employees of CBI Constructors on what is known as the Burrup Fertilisers site on the Burrup Peninsula are currently on strike. They have been on strike since approximately 1 o'clock on Tuesday and the intention, as I understand it at this stage, is that there will be no return to work until Saturday morning. That is a period - which is a fairly obvious statement to make, I guess - but a period of 3 and a half days which is, in our view, quite a substantial amount of time. It is a substantial impost to the business and the operation of the site itself.

PN8

It is even more substantial when you consider the matters that are actually in dispute and that is really two - there are two issues at hand. Firstly there was two incidents, one on the Monday and one on the Tuesday, of supervisors working on tools and also the two supervisors concerned, who were using grinders, did do so without double eye protection. So the two issues at hand, we would say, are not of the order of importance that would cause an entire work force to go on strike for 3 and a half days. We're here today seeking orders from the Commission for a return to work as soon as practicable.

PN9

That would be either hopefully tonight or tomorrow morning. We believe that the response is totally - it is fundamentally disproportionate to the issues concerned. We believe that there was no real attempt to resolve the issues with management and we believe that the procedures that are in place to handle these issues certainly haven't been followed on this occasion and may not be followed on subsequent occasions if there are disputes amongst this work force. There has been two disputes over the last few months that have led to strike action. On both occasions the procedures in the certified agreements were bypassed.

PN10

The grievance procedure in the certified agreements is substantial, as they are in these agreements and on both occasions the grievance procedures were bypassed. It is also worth noting that there is no - in our view there is no position of protected action here. There is no bargaining period in place. The certified agreements are in place and will continue to run for a number of years yet, so there is no question that that is involved in this issue as well. So what we're fundamentally saying is that the two issues at hand have caused a reaction that is totally out of proportion with what you would expect in a situation like this and that the procedures that are in place and have been negotiated by the union parties as well as the employers with some good faith have been, on the second occasion now, totally bypassed. If the Commission pleases.

PN11

THE DEPUTY PRESIDENT: Thank you. Now, Mr Edmonds? Mr Saunders?

PN12

MR SAUNDERS: Sir, I think the application made by the applicant reflects part of the story of the dispute and I would have to say to you we are in dispute but there is a position where we reject that we haven't followed the disputes procedure and I will come to that. Just to bring you up to speed where we're at with it, was approximately 4 weeks ago through the local organiser of the AMWU, Mr Lovett, and the shop stewards elected to represent the CBI work force. Raised the issue of supervisors working on the tools with their employer. And on that basis they said: look, that is not part of the agreement.

PN13

There is no agreement for supervisors to work on the tools and it has got to cease. My understanding is at that particular time agreement was reached that supervisors were not to work on the tools except in those areas where it is for supervision to show people how to use it, but not productive work. So it was an agreement reached. An agreement was reached with the union, the shop stewards and the employer and I would say to you, Deputy President, that is part of the disputes procedure. So some 4 weeks ago, the disputes procedure on clause 13 of the APC CBI Constructors Agreement, Project Agreement 2004, the employer and the union and the membership sat down and the disputes procedure goes to, or grievance procedure goes to - in step 1 it says:

PN14

The employee and/or the shop steward will discuss the matter.

PN15

It goes on to say that an official who is responsible for the job will also be involved. Now, at that particular time, the workers have raised it with the shop steward, in turn raised it with the official. The matter was taken quite rightly to management and between the union, the workers and management it was settled. So when it gets to step 3 in the disputes procedure, where it says that the matter is unresolved, well then, we refer to the State Secretary of the union to assist in resolving the matter.

PN16

It was bypassed because both sides had agreed that it was inappropriate for supervisors to work on the tools. And of course step 4 had come into play but just for the record again, our position on step 4 is that once we go through the procedure, and these are the submissions we gave to the Cole Royal Commission that the matter can be referred to the Commission or we reserve our rights to take industrial action as per the disputes procedure. I understand what the Act says but as per the disputes procedure, we say that is our right. So some 4 weeks ago, this dispute between us was settled.

PN17

Now, my understanding is on Monday 5 July, a supervisor was grinding, using a grinder without the appropriate protection equipment on, in this case glasses and again it was raised with our delegates. Look, we've raised this, we've got an agreement and yet we've got a supervisor on the tools, not wearing the appropriate protective equipment and the delegate then went and saw CBI management and said: We intend to have a meeting later in the day to discuss your commitment this wouldn't happen.

PN18

One is the supervisor being on tools and of course, the same supervisors wander round the site, inappropriate in our position or our statement, is because they continue to push the PPE, proper protective equipment, yet our work force uses the proper protective equipment in carrying out their duties on the job. So here is a supervisor saying - continuously hounding our members and yet they think they're invincible. One is they break the rules by getting on the tools. Secondly they ignore what their instructions are to our people.

PN19

Quite outrageous, in our opinion, quite outrageous and at this particular time, hadn't been dealt with appropriately. So the management understands that the workers are going to have a meeting some time on Tuesday to discuss the issue, to make sure that whatever resolution would come out of that, they would take back to management and there was no fixed position because the workers hadn't met at that particular time. Well, that morning, this is how serious this company takes it. That morning another supervisor picks up a grinder without the proper protective equipment on and starts grinding it.

PN20

Not the same supervisor, a different supervisor. So now we've got two supervisors and of course again the workers are saying: we've raised this issue, we've got a position settled with us. It is inappropriate that supervisors be on the tools and it is not even debated that people who use equipment have got to have the appropriate protective equipment. But the worst part about this is, the people that hound our members about the protective equipment are the people that just ignore it. First of all, they shouldn't be on the tools. They get on the tools and they just ignore what they preach.

PN21

So our workers were quite incensed about this situation. I think the employer should be hanging his head in shame, to be quite frank with you, the way they've conducted themselves. And there was a meeting at approximately, as I understand it, at 1 o'clock that afternoon. Now, I don't know what the outcome would have been on Tuesday afternoon with only discussing the one person on the Monday who had broken the rules, who hadn't followed the disputes procedure, in our opinion. We had a settlement of dispute some 4 weeks ago. Ignored that. Ignored that. And not only did he ignore that, he then went and breached every safety regulation you think of, which he preaches to the workers about, on the Monday and the Tuesday.

PN22

So Tuesday afternoon at 1 o'clock. It may have been - and I don't know and I haven't asked the work force because I'm not there - it may have been to take that back to management and query why a supervisor not only worked on the tools when we had a commitment, but he hasn't worn his PPE. But then on Tuesday morning when they - everyone knows or should know there is going to be a meeting to discuss that, a further supervisor does exactly the same thing. They met on the Tuesday afternoon at 1 o'clock. Our local organiser, Mr Lovett, wasn't available.

PN23

He was tied up with another dispute down the road. And he said he would be available a bit after 7 o'clock on Wednesday morning. I understand that he arrived there about quarter past 7. The workers were at the front gate, not on the job, and they said: they are ignoring us. Company is ignoring safety and that we've given them warning, we used the disputes procedure, we were unhappy about what they were doing before. We settled the matter in accordance with the disputes procedure. We didn't walk down the road. And yet they ignore us. They're treating as idiots. And on that basis there is a fair bit of heat in it.

PN24

I would have to say to you that my understanding was that a lot of people were talking beyond a return to work Saturday. Some sense came back into it and what has been agreed by the work force, to let this employer know that they will return to work Saturday morning. There won't be a meeting. They will return to the job, start at normal start on Saturday. Now, I have to say to you that this employer hasn't come here with clean hands. They can come here and argue: yes, look, there is a certified agreement and that you are restricted of how you conduct yourself, but that is a two-edged sword. The employer can't agree to things through the disputes procedure and then just ignore it.

PN25

You can't do that. And then come here and ask you to protect them. That is absolutely wrong and on this occasion that is what they're trying to do. They're coming in here as guilty as sin. As guilty as sin and they're asking you to protect them. And I would suggest to you that even if orders were issued or recommendations, I don't mind recommendations, to be taken back to the work force, the earliest the work force could gather in total would be Saturday morning and I would be reluctant to interfere with the workers who are returning to work Saturday morning at start time, but we would relay any recommendation to them during that day because we expect - well, we know they're going back on the job.

PN26

So I wouldn't want a meeting at 7 o'clock to say go back to work, because they're going back to work in the morning. May it please the Commission.

PN27

THE DEPUTY PRESIDENT: Thank you, Mr Saunders. Ms Scoble?

PN28

MS SCOBLE: Thank you, sir. I don't have anything to add to Mr Saunders submission except to say that it does greatly concern the CFMEU members on site that agreements can be reached under the dispute procedure with management and then management goes ahead and disregards those procedures. And particularly concerning is the disregard for safety that has been shown on these two occasions, sir. Thank you.

PN29

THE DEPUTY PRESIDENT: Thank you. Before proceeding any further with the hearing, I would seek the views of the parties as to whether they are of the view that conciliation would be of any assistance in this matter. First Mr Coleman?

PN30

MR COLEMAN: Thank you, Deputy President. That may or may not be the case. There is a couple of things here that have been said that certainly aren't within my knowledge. If I could just mention them one after the other briefly at this point.

PN31

THE DEPUTY PRESIDENT: Before you proceed to do that, Mr Coleman, I will get a quick response from the respondents and then come back to you. Mr Saunders, in relation to conciliation?

PN32

MR SAUNDERS: We would agree that conciliation would be the appropriate way to handle this for the time being to see whether we can explore a resolution.

PN33

THE DEPUTY PRESIDENT: Thank you. Ms Scoble?

PN34

MS SCOBLE: We have no objection to that course of action, sir.

PN35

THE DEPUTY PRESIDENT: Thank you. Mr Coleman, please continue, taking into account what has just been said?

PN36

MR COLEMAN: Thank you, Deputy President. It is a matter of confirming some facts, I guess, is probably the best way to put it. I have no knowledge at all of an incident 4 weeks ago that resulted in meetings with the management and then further resulted in what you could describe as a use of the disputes procedure. In the information that I have, that simply is not the case. Now if there was incidents previously, in terms of the information that I have, they must have been of a minor nature that didn't progress much further than the people involved in the incident themselves.

PN37

I can say that I have information that there was an incident some time ago that was reported to the deputy shop steward but was not reported to the management. Whether that is something that Mr Saunders is referring to or it is connected to that, I don't know, but my point being, I guess, that if we can establish those facts in a conference situation or if it is necessary to call witnesses to establish those facts, I think they need to be established. In terms of the conference itself, if we went that way, then I would be certainly seeking that Mr Grantham from Karratha be involved in that as well, through the video conference link, by way of at least establishing some facts to those positions that have been put forward this afternoon. If the Commission pleases.

PN38

THE DEPUTY PRESIDENT: Mr Coleman, this is your application. It is open to you to submit to the Commission that it proceed with a formal hearing or to submit that the applicant would prefer to adjourn into conference. And I'm seeking your clear view as to which way you would wish to proceed. I have a clear view from the respondents and I ask if you could indicate to the Commission what your position would be.

PN39

MR COLEMAN: In the circumstances, Deputy President, we would see our way clear to going into conference if we could link in and establish those facts to put on the table and on the basis that we would reserve our position to come back into formal hearing at some time during the course of the afternoon to progress the matter if we thought it necessary.

PN40

THE DEPUTY PRESIDENT: Thank you, Mr Coleman. Having heard the views of the parties, the Commission notes that no party disagrees with the idea of proceeding into conference and indeed, it is agreed between the parties that conference at least in the first instance would be the appropriate way to progress this matter. Given that it is a video hearing, which will be adjourned on that basis into a video conference, the logistics would be that upon adjournment, the video link will remain open so that as requested, Mr Grantham could be present and could participate in the conference.

PN41

It would be the intention of the Commission to seek to have a disciplined conference in terms of time. In the first instance it would be my view that some 30 minutes could be appropriate to have for the duration of the conference and I would seek the views of the parties concerning that and with the proposition that in the event that there was no useful progress being made in the conference, that the hearing would resume at that time or at an appropriate time. Mr Coleman first.

PN42

MR COLEMAN: Well, I'm happy to have limits put on the conference, Deputy President, but 30 minutes is not an awful lot of time to deal with some of these matters. As these things happen, I think we're all aware, we seem to go around in circles for the first 10 minutes of a conference so I would be suggesting maybe a time a little bit longer than that.

PN43

THE DEPUTY PRESIDENT: What duration would you suggest, Mr Coleman?

PN44

MR COLEMAN: Well, I would be thinking at least 45 minutes would be a reasonable time.

PN45

THE DEPUTY PRESIDENT: Thank you. Mr Saunders or Mr Edmonds?

PN46

MR EDMONDS: It sounds fine, sir. 45 minutes sounds good, sir.

PN47

THE DEPUTY PRESIDENT: Approximately 45 minutes. And Ms Scoble?

PN48

MS SCOBLE: Yes, 45 minutes sounds fine, sir.

PN49

THE DEPUTY PRESIDENT: Thank you. The Commission would suggest taking into account the comment that Mr Coleman has just made, that indeed it would be more productive for the applicant and the other parties indeed to focus immediately on the relevant considerations that need to be addressed and resolved in the conference so that all of that time is used productively. What I would propose now is after a short adjournment in this forum, the matter will recommence in a conference format. We will now adjourn.

SHORT ADJOURNMENT [4.02pm]

RESUMED [5.20pm

PN50

THE DEPUTY PRESIDENT: This is a resumption of the hearing which was adjourned into conference to allow the parties to explore the basis for a resolution of the matter which has led to the application. And I now invite the parties to confirm on the transcript their proposals which would lead to a resolution of the matter. Mr Coleman?

PN51

MR COLEMAN: Thank you, Deputy President. My understanding is that a recommendation will issue from the Commission. That recommendation will deal with a confirmation from the union parties that they will recommend a return to work at the start of business tomorrow morning. That is Friday. Friday the 9th. I also believe that there will be - the recommendation will include assurances that both parties shall adhere to and have further discussions on the operation of the disputes procedure and I also understand that, maybe not as part of the formal recommendations but the parties will continue to discuss this issue of supervision, working on the tools and where that demarcation starts and finishes. On that basis, understanding the points being made, we would be happy with that recommendation. If the Commission pleases.

PN52

THE DEPUTY PRESIDENT: Thank you. And in relation to the future of the application, Mr Coleman?

PN53

MR COLEMAN: I have no further submissions on that, Deputy President.

PN54

THE DEPUTY PRESIDENT: Thank you. Yes, Mr Edmonds?

PN55

MR EDMONDS: Yes, sir, thank you, sir. It is our understanding, sir, that - or it is our desire, sir, for the Commission to make a recommendation that the workers return to work at ordinary time tomorrow morning, sir, that being Friday 9 July 2004. The AMWU is prepared to put that recommendation to the workers, sir, and encourage them to adhere to that recommendation, sir. If there is no return to work on Friday, sir, we're certainly confident, sir, that there will be a full return to work, sir, on Saturday morning at 6.30 am, sir. Just for the purpose of the record, sir, the AMWU is confident that it has adhered to the dispute resolution procedure at all stages throughout this project, sir.

PN56

If there is any problems with the interpretation of the disputes resolution procedure, sir, then we're willing to discuss those issues with the company, sir. Otherwise we would say, sir, it is further our understanding, sir, that CBI does not engage supervisors to perform the work of other classifications, sir, and that is what I say about the issue of the supervisors working on the tools, sir.

PN57

THE DEPUTY PRESIDENT: Thank you.

PN58

MR EDMONDS: Thank you.

PN59

THE DEPUTY PRESIDENT: And in relation to the future of the application?

PN60

MR EDMONDS: Sorry, sir. In relation to the future of the application, sir, we would say that hopefully, sir, the recommendation will be picked up. If that recommendation is picked up, sir, then we would say the jurisdictional basis of the application falls away. This is an application that has been brought on the basis that industrial action is occurring. There is nothing in the grounds of the application which suggests that it has been brought on the basis that industrial action was threatened, impending or probable. And on that basis, sir, if the industrial action that is occurring ceases, sir, then the application should fall away. Thank you, sir.

PN61

THE DEPUTY PRESIDENT: Thank you. Ms Scoble?

PN62

MS SCOBLE: Thank you, sir. I would support the submission of Mr Edmonds in respect of the recommendation. We're happy for Mr Lovett to put to the CFMEU members the position in respect of the recommendation and we will be recommending return to work at ordinary time tomorrow. Failing that, a full return to work Saturday at 6.30 am and I would simply concur with Mr Edmonds as far as the future of this application and its jurisdictional basis. May it please the Commission.

PN63

THE DEPUTY PRESIDENT: Thank you. Having heard the parties, the Commission notes that what has been put by way of submissions to the Commission is the outcome of discussions in conference, which were full and frank, between the parties, as a result of which by agreement, the parties have requested the Commission to make a recommendation. The request for the recommendation is that the respondent unions would recommend to their constituents that there be a full return to work commencing from the start of business on Friday 9 July 2004 and the Commission so recommends in those terms that the respondents pursue that objective by way of a strong recommendation to their members tomorrow morning to achieve that outcome.

PN64

The Commission also notes as has been discussed, that the parties to the certified agreements that are involved in this matter are bound by those certified agreements to adhere to the dispute resolution procedures which are contained in those agreements and which have been freely entered into by the parties by consent. The Commission notes that the future of this application will depend in part upon the events that take place subsequent to the conference, pursuant to the matters the subject of the recommendation and directs that within a period of 7 days, the applicant either withdraw the application pursuant to section 127 or proceed with it and that the applicant should notify the Commission in writing of its intention.

PN65

During that period of time, the Commission notes that the parties have expressed the view that the issue of supervision needs to be addressed between the parties and that discussions between the parties directly on that issue should be conducted with a view to trying to seek agreement between them on that particular question. There being no further matters before the Commission and in the event that there are no further submissions from the parties, I adjourn this matter.

ADJOURNED INDEFINITELY [5.29pm]