C2004/5399, Transcript of Proceedings [2004] AIRCTrans 3286 (23 August 2004)

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TRANSCRIPT OF PROCEEDINGS

O/N 13022

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER HARRISON

C2004/5399

APPLICATION FOR AN ORDER TO STOP
OR PREVENT INDUSTRIAL ACTION

Application under section 127(2) of the Act
by Abigroup Leighton Joint Venture
for an order to stop or prevent industrial action
re entitlements

SYDNEY

2.40 PM, WEDNESDAY 11 AUGUST 2004

Continued from 6.8.04

PN21

THE COMMISSIONER: Could I have the appearances please.

PN22

MR P. RYAN: If the Commission please, I am appearing for the Abigroup Leighton Joint Venture.

PN23

MR I MORRISON: I appear on behalf of the Australian Manufacturing Workers Union.

PN24

MR P. ZABOYAK: If the Commission pleases, I appear on behalf of the CFMEU.

PN25

THE COMMISSIONER: Thank you. This is a report back from a conference and hearing held last Friday. Mr Ryan, would you like to begin.

PN26

MR RYAN: Thank you, Commissioner. The Commission was advised last week of a trend towards the calling of mass meetings on the Westlink M7 project and the Commission was also advised that as a result of the latest attempt to organise a mass meeting that directions were handed down by the New South Wales Industrial Relations Commission and this Commission sought essentially to allow those directions to run their course before anything further in this matter. Can I indicate that my instructions are that over the last two days meetings have progressed and that they have been in accordance with the directions issued by Commissioner Tabber.

PN27

Just before I go on I note that the AWU has again not sought to make an appearance in these proceedings and the transcript will show that the Commission accepted that there has been industrial action at the site and I won't go so far as to say swayed but there is a trend towards this kind of industrial action on the project. Whilst we believe that the directions issued by the New South Wales Commission had been adhered to we also believe that there is potential for further industrial action of a nature that has been described to the Commission already.

PN28

On that basis we would like the Commission to stand this matter over leaving it as it is part heard and with liberty for us to have the mater relisted at the commission and the parties convenience.

PN29

THE COMMISSIONER: All right, thank you, Mr Ryan. Mrs Morrison.

PN30

MR MORRISON: Yes, Commissioner, firstly, I can report that those meetings did occur, the separate meetings, the smaller meetings that were not the preferred outcome of the unions but in line with Commissioner Tabber's direction the smaller meetings occurred and were very shall we say fruitful in that a lot of people participated, the members participated, the union made their position and they double chaired and they occurred.

PN31

The question of Mr Ryan's request that the matter be held over generally I think is contrary to the intention of the Act and while I would say that it is foreshadowed that perhaps industrial action is pending we haven't gone into the details and it is definitely pending and I would say that the fact that the five meeting occurred and there wasn't industrial action taken is, as you used the words, the steam has been taken off the issues and so it is unlikely over these issues that the industrial action will occur.

PN32

I have no indication from anyone that in fact the industrial action is contemplated so I think in light of what Mr Ryan wanting his own safety valve, I think it is, if you like, contrary to what 127 of the Act says. While there may be some argument that the action could occur in the future, well anything can occur in the future and I think the Act does not envisage having a matter held generally in abeyance waiting for something that may happen some time somewhere in the future over whatever circumstances.

PN33

So while I can report the steam has been taken off this issue I don't think it would be appropriate for the matter to be allowed to continue indefinitely just on the offchance that something may occur in the future.

PN34

THE COMMISSIONER: Thank you. Mr Zaboyak.

PN35

MR SABOYAK: Commissioner, firstly apologies, I didn't make an appearance at the last hearing. I was away that day interstate. Just for the record from our union's perspective the unions didn't call for the last mass meeting, that was done by the chairpersons of the safety committees which have been elected on the job. Needless to say the calling of that meeting was subject to proceedings before the State Commission, directions were given in the State Commission and those directions were followed and there has been no fall out from those directions other than currently there are inspections taking place in accordance with the Act with the exception of the companies now and what concerned me then when I heard is that the company during the meetings that were taking place, anyone that spoke their names were written down by representatives of the companies.

PN36

So, there were four or five of these other meetings, there were representatives from the site safety committees. The unions weren't represented at all the meetings, so we weren't there because they were all held at one time as I understand it. So we weren't at all of the meetings. On the Friday preceding the meetings - I will go back a bit, I am a little confused with the series of events.

PN37

There were directions given on Friday by the State Commission for the site safety committees and the five section to meet the day after the proceedings before the State Commission on the Thursday and these meetings were to take place on the Friday. The unions weren't present at those meetings, there may have been an exception of one but my understanding is in the majority they weren't represented. There were subsequent meetings to be held with all the work forces within the various five sections. Those have been taking place.

PN38

The situation that has developed in the reports I've got is that where these mass meetings in the five sections have taken place, company representatives have been there making notes of any person who has raised his hand to speak in whatever shape or form on any issue that has been raised. So subsequently the feedback we've got from the meetings now is there is intimidation by the names being taken so people are reluctant to put their hands up but there is a report back next week to the State Commission in relation to some other issues that exist on site and we will be certainly canvassing those again.

PN39

In terms of future industrial action I am in charge of the site from the perspective of the members, there is nothing foreshadowed other than they've logged several dozen companies in accordance with the Workplace Relations Act to pursue enterprise agreements and any action that will be taken will be done in accordance with the Act under the protected action which is consistent with the Workplace Relations Act. But there has been no program yet that's subject to us meeting the men and when they decide to take that action but, again, I emphasise that's in pursuance of their enterprise agreements to which I think there is about 70 companies that have been logged. That is my last count.

PN40

The thing is that a lot of those companies are earth moving contractors on there as well as other trades. All their agreements expired last year, around December. They haven't been renewed and the mass meeting that we had there some several weeks ago, all the companies were present, they endorsed us to log their employers and then we have to proceed on an individual basis with each one of those companies and the employees to see where we commence negotiations and take protected action if need be in accordance with the Act to bring about a conclusion on their enterprise agreement consistent with the Act so it is not unprotected action, it will be protected action if and when that takes place. I have nothing further to add.

PN41

THE COMMISSIONER: Thank you.

PN42

MR RYAN: Commissioner, can I respond to one point, Mr Morrison's point. We disagree to say that it's not the intention of the Act that you have matters whereby you guarantee that there is no industrial action. These instruments are called certified agreements which these parties come to agreement about such that they comply with the terms of the certified agreement in return for the wages and conditions under those certified agreements. So it is certainly within the realms of this Act and this Commission to have a project where there is on industrial action.

PN43

THE COMMISSIONER: I'm not sure whether he's saying that or not.

PN44

MR RYAN: No, I was clearly referring to a 127 application Commissioner, I don't think it was the intent for a 127 application to have an indefinite life.

PN45

THE COMMISSIONER: What's your view about that Mr Ryan?

PN46

MR RYAN: Well I don't intend for a section 127 application to have an indefinite life, the aim here of the joint venture is to take all steps to ensure that there's no industrial action on this project. Now the first measure that they took was to enter into a certified agreement with the two unions represented here today and AWU. The second measure that they took was to have a project award in the State Industrial Relations Commission to which these unions are also party and have expressed their willingness to abide by that project award that they have agreed to and the third step is reactionary to mass meetings called at a whim.

PN47

Now, if it is the case that a 127 application shouldn't have an indefinite life or even a slightly protracted life then so be it. The next time this issue comes up we clearly were going to have to lodge the fourth section 127 application within a period of whatever weeks. I simply say that this application is struck in wide terms, it's in relation to industrial action having been called and the potential for future industrial action and whilst it is encouraging to hear today that there's no further industrial action planned with respect to employees directly employed by the joint venture, I guess the test of that is in time and I will leave it in the Commission's hands. I have expressed our view as to what our preferred option will be. If the Commission is against that on that then so be it.

PN48

MR ZABOYAK: Can I just indulge the Commission a little, I haven't been here at the prior meeting but it seems the way that my friend is betraying is that this side has been a powder keg, there's been all this action taking place, all these problems, as soon as we walk out of here it's going to be on again. The facts and truth of the matter are the only mass meeting that took place was sanctioned by the joint venture and it was done with the permission of the joint venture. They in fact facilitated it and sent notes out telling that all the employees should attend it, that's one and that's the only meeting that's taken place.

PN49

The job has been going for the best part of in excess of twelve months, there have been no other meetings. The fact that my friend has decided to open up the debate a little bit about the enterprise agreement that is true, there is an enterprise agreement in existence under the Federal Act which applies to the joint venture's direct employees. There's been no issues there. Where the issues have arose is as my friend has mentioned, that there is a State registered enterprise agreement, I'm sorry I withdraw that, that there is in fact a State registered project award to which a number of problems has arisen, one namely by contractors which are Federal respondents via the membership of a certain employer association which is Federally registered and secondly, by virtue that some of the contractors have got Federally registered enterprise agreements whose term has expired and the other Federally registered employer association has in fact had a private conference including the joint venture and the State jurisdiction without the unions being present. That's what we did when we found out too, raised the eyebrows to which my friend I believe was party, where the employer association had said that because they are Federally registered and their members are Federal respondents the project award had no application in their view and that if in fact any pressure was applied by the joint venture or anyone else for that matter to comply with the project award, that they would seek relief in the Federal Court.

PN50

This then led to the terms and conditions outlined in the project award which would be applicable to all the employees who were not employees of the joint venture because they were covered by a Federal instrument, e.g. site allowances and minimums in superannuation, redundancy, top up insurance and so forth, were not being paid. Further, in relation to OH&S there have been approximately fourteen accidents on the site ranging from people being electrocuted on cranes touching overhead power lines and the matter not being reported to WorkCover or anyone else and when it was reported to Workcover approximately a week after the event it was reported as a minor incident.

PN51

There have been people had their legs crushed and legs amputated, people have been run over by road rollers and by self propelled rollers. There's been trucks overturning, dump trucks overturning I might add, piling rigs touching overhead power lines with their tiger tales where we've had piling rigs falling over, we've had trench collapses with no shoring, in fact as we speak I've got two organisers on the particular part of the job where there's trenches in excess of six foot deep and people working in them with no shoring and people have been evacuated. The seriousness of what sparked the safety issue was that there were no representatives of any of the subcontracting companies which would make up in excess of 50 per cent employees on site on the safety committee.

PN52

The subcontractors in fact have told the employees that if they attend any safety or toolbox meetings they would be not paid, so subsequently nobody would attend. People have been turning up on the job which had not been inducted, no green cards as well as people had been turning up on the site with invalid certification as a result of the assessors in New South Wales system selling tickets and I think that's been the subject of some ICAC investigations and what really sparked it, I will go back to the crane issue, was that the crane accident that touched overhead power lines was being supervised by an employee of the joint venture who then also didn't report the accident and the person who got electrocuted went home for three days and didn't go to hospital, the crane was removed from the site and in fact the JSA was written up after the accident which is fraud and we have asked for copies of the reports and incident reports and the company has indicated to us that under legal advice they're not going to provide them to us even though we say we have rights under the State system in terms of our right of entry provisions under the OH&S Act.

PN53

So, we have had in essence one stoppage sanctioned by the company. Men wanted answers on the accidents, men wanted answers of why they are not being paid, men wanted answers on why the company was having private conciliation proceedings without unions in the State jurisdiction and naturally they built up a head of steam and naturally not unreasonably demanding to have a meeting. So the company got its way even though there is a question-mark as to the application of the State award to the Federal respondents and the company has indicated it has done that by a common law contract as a condition of contract work you're bound under common law contract for working on that site.

PN54

We still have had no relief. We are still under immense pressure. The safety inspections and the safety means that are taking place now the company is reporting to people who are raising issue or even talking which has now led to people not putting their hands up and not talking.

PN55

THE COMMISSIONER: They could have been taking the minutes of the meeting too.

PN56

MR ZABOYAK: No indeed not, I checked that. So we are working within the system. We are working within the directions that have been issued by the State Commission. We have no plans of taking any unauthorised action. We have got to report back to the State Commission in relation to the compliance as the State Commission issued directions to the company to bring in external auditors, to audit the companies that are working there to ensure compliance, workers compensation and so forth and that information should be given to the unions on demand. The company has refused to do that. Just given us a cover sheet.

PN57

That issue is on a report back to the 17th. So I need to put this on transcript from my friend here who got himself a little excited saying that this thing's really a bomb might go off. All this unauthorised action's been taking place. The only action which took place was one authorised meeting by the company. That's the only meeting. The second meeting for the report back was called by the safety committee, it wasn't called by the unions. It was called by the safety committee and so on record I can state here in this jurisdiction that the State Commissioner actually got the chairpersons on the safety committees into proceedings and spoke to those people on their own without the unions present to make sure, as my friend was trained in the other jurisdiction, we would in some way coach him, or lean on these people in a certain way. And in a consequence of that was there's a direction came for the five meetings.

PN58

So that is the only action that has taken place. What we want is a safe job. We have been lucky so far no one's been killed. Because we have already had people with their legs cut off and crushed etcetera. The company has clearly broken its obligation under the State Acts, the OH&S Acts so we are working within the system. We are back before the State jurisdiction on the 17th and my friend even though within his exuberance I thought it needed to be stated for the record what has actually been transpiring on site, other than him getting his narrow directions to prohibit us from talking to our members.

PN59

THE COMMISSIONER: Mr Ryan.

PN60

MR RYAN: Well my friend is a master at attempting to give evidence from the bar table and I don't intend to try and respond to it.

PN61

MR ZABOYAK: It's the truth.

PN62

MR RYAN: Well the problem is that sometimes people believe what they say to be the truth.

PN63

MR ZABOYAK: Well perhaps my friend can answer if there was a prior conference within the State jurisdiction without the unions being present.

PN64

MR RYAN: I don't intend to respond to the diatribe from my friend. Those are matters that have all been aired three times before the State Commission and they have been responded to. I will say this however that the meeting that took place on 21 July whilst we didn't bring it in here doesn't mean that it was authorised by us and it wasn't. It was industrial action and it involved joint venture employees. So before my friend jumps up and gives more evidence from the bar table - - -

PN65

MR ZABOYAK: I object because I've got a letter from the joint venture authorising it. So don't make it up as you go mate.

PN66

MR RYAN: The fact of the matter was that the meeting was not authorised. We didn't agitate it before the Commission, it doesn't mean that it was authorised, and it directly involved employees under this certified agreement. Now that is all we are dealing with here today is the employees covered by this certified agreement and I would add, and I pointed this out before that those employees are not covered by the project award in any way, shape or form. That's all I wish to say in relation to the matter. I am not going to respond to all the other things that Mr Zaboyak will throw up from the bar table.

PN67

MR ZABOYAK: I'm sure he doesn't want to do that. But let me say this, just on two points that he has raised. In fact the workers under the joint venture enterprise agreement to an extent are covered by the project award because they are getting the $4.50 site allowance as was determined under the State award - - -

PN68

MR RYAN: This is a just matter of interpretation. One only needs to look at the agreement to show that the $4.50 for joint venture employees is coming from their own agreement and not from the project award.

PN69

THE COMMISSIONER: Well I think we are straying away from what we were originally here for.

PN70

MR ZABOYAK: That's one point, and in relation to the authorised action the meeting sanctioned, in writing, and distributed over 50 kilometres to all subcontractors, project managers in specific areas, sanctioning the meeting. Authorised with the consent of the joint venture. My friend here can make it up as he goes but if the Commission seeks to have evidence on letterhead from the joint venture I can produce it.

PN71

THE COMMISSIONER: Right well I don't need it and I hope I never do need it. I am reassured by Mr Zaboyak's commitment to work within the Workplace Relations Act in terms of processing or advancing agreements with subcontractors. On the other hand there is a perception by the company that industrial relations are volatile and I noted that last Friday.

PN72

I take Mr Morrison's point that I really can't just leave an application for orders open-ended but I can give all parties an assurance if the volatility proves correct well then the matter will be listed promptly if there is a further application for orders, but as again I repeat I note the undertakings given by Mr Zaboyak and that if they are complied with well then we won't be back here.

PN73

MR ZABOYAK: They are not undertakings. I know when I have given undertakings. All I am saying to the Commission here is that there is no planned action to be taken on site. I can't give a cast iron guarantee that if these blokes continue knocking machines around and getting blokes hurt and with their legs cut off that something is not going to happen. Nobody can do that. Obviously they haven't learnt too much in the last week and a half. We've still got people working in trenches without shoring. But for the record there is nothing foreshadowed that I could say in my knowledge on these particular issues and there's further discussions within the State jurisdiction in relation to some of the issues as I've already said.

PN74

THE COMMISSIONER: And the last two days of meetings I would hope have gone a long way to resolving the issues that have been identified.

PN75

MR RYAN: Hopefully.

PN76

THE COMMISSIONER: Well we can only be optimistic. These proceedings will stand adjourned. Thank you.

ADJOURNED INDEFINITELY [3.07pm]