C2004/11271, Transcript of Proceedings [2004] AIRCTrans 394 (28 January 2004)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 2, 16 St George's Tce, PERTH WA 6000
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TRANSCRIPT OF PROCEEDINGS

O/N F139

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

DEPUTY PRESIDENT McCARTHY

C2004/1127

APPLICATION FOR AN ORDER TO STOP
OR PREVENT INDUSTRIAL ACTION

Application under section 127(2) of the Act
by United Group Proprietary Limited for an
order to stop or prevent industrial action

PERTH

10.51 AM, SATURDAY, 17 JANUARY 2004

PN1

THE DEPUTY PRESIDENT: So, this is a proceeding pursuant to section 127. It did start earlier this morning off record. There were appearances entered by MR BULL for the applicants and also MR KUCERA. Off record there were some discussions and I adjourned those discussions for the parties to get instructions and to consider how this matter should progress and any other issues. Mr Bull, have you anything you want to put at the moment on the record?

PN2

MR BULL: Yes, thank you, your Honour. And thank you very much for the opportunity to speak with my instructing contractors and also my friend Mr Kucera. It appears to us that, yes, there was an issue of asbestos raised. However, it does not appear to us, and Mr Kucera may have another view, but at this point in time in any way is causing a safety problem. Certainly not a safety problem to the extent that employees need to walk off the site. Certain measurements in terms of asbestos fibres have been undertaken on the site and they are well under the recommended levels. And the material is well covered up and doesn't pose, in our understanding, any debility whatsoever in terms of a safety problem.

PN3

The position seems to be that we have an issue with the ice and water on site. My friend, Mr Kucera, said earlier that with a large number of employees on site, where we have got around about 150-170 people now and with that number increasing, and we are into the hotter month of the year, that there is a potential for contamination with the current machine we have got on site. And he has advised us of what the process was at Murrin Murrin where, I understand, and I stand to be corrected, where they had some difficulties with deliberate contamination of the ice. Now, we don't believe there is any problem with the contamination of the ice and we believe that the procedures that we put in place to date are more than satisfactory.

PN4

And, in fact, we have gone a bit further than we believe is really necessary, but in terms of trying to resolve the issue with the ice and the water, certain concessions have been made and put to the union. Now, I am told this morning off the record by my friend that despite the efforts of the contractors, there is still an issue in respect of the ice and the drinking water. However, he has off the record, again he can correct me if I am wrong, given his understanding that their members, that is, the CFMEU members, will return to work on Monday. I earlier indicated off the record, your Honour, that one of my instructing contractors, Pinefab Pty Ltd, has advised that their employees have said that they will return to work.

PN5

They are currently building the cooling towers. On Monday. And they have no intention of taking any industrial action over this matter. So, come Monday, your Honour, and unfortunately we are without the benefit of the AMWUs comment in respect of this issue, and they are obviously involved. But come Monday, at least, we will have one contractor's employees on the site and the CFMEU members. And hopefully the AMWU will follow. But in any event, if an order be issued this morning, sir, it couldn't have any practical effect at least as you have indicated until Monday. Tomorrow is not a normal working day in any event.

PN6

I have spoken to my friend, Mr Kucera, and it is our suggestion, and subject to the Commission's timetable, that come Monday the issue of the drinking and ice water will still be a problem. However, hopefully it won't be sufficient enough for industrial action to recommence. And on that basis, sir, we would be calling upon the benefit of the officers of this Commission to assist in resolving this issue, because it doesn't appear that the efforts we have made to date are going to resolve the issue. So, you did mention, your Honour, earlier that it may be possible for the Commission to convene a conference and have this matter adjourned on Monday. The timing would be in your hands or the Commission's hands, your Honour.

PN7

THE DEPUTY PRESIDENT: Earlier, I didn't indicate that I would be convening a conference. What I indicated was I suggested that it may be appropriate for this matter to be adjourned, to proceed on Monday. That is what I was suggesting. You are taking that a bit further, Mr Bull, and there be a conference over the underlying issues.

PN8

MR BULL: Well, my understanding, your Honour, is that - - -

PN9

THE DEPUTY PRESIDENT: And I might add, I stand to be corrected here, but if it is issues arising under the agreement, my understanding is that many of these agreements, at least in their dispute settlement procedures, do not provide for the Commission to be empowered to deal with disputes arising under the agreement. So, it would have to be separate 99 applications. That was my understanding. At least with the CFMEU agreements.

PN10

MR BULL: As you will be aware, sir, the grievance procedure provides that if the matter can't be resolved, it get referred to this Commission. Whether that be through section 99.

PN11

THE DEPUTY PRESIDENT: Well, it would have to be.

PN12

MR BULL: Yes.

PN13

THE DEPUTY PRESIDENT: Because my understanding is, and I stand to be corrected because so many of the agreements get certified, that the very issue of whether the Commission was being empowered was addressed during the agreement certification proceedings and unless I am getting these agreements confused with others, it was stated and agreed by the parties, at least with the CFMEU, that the Commission wasn't being so empowered and wasn't being approved. So, the only other - non 170LW avenues available.

PN14

MR BULL: Yes. Your Honour, what you have before you is an application by a number of contractors at the Hismelt Kwinana site asking for a 127 order. On occasions it is appropriate for the Commission however constituted to adjourn to a conference to resolve the matter in lieu of a formal proceeding in terms of 127. So, having heard what you have said, sir, in respect to adjourning this matter and having it re-listed on Monday, what we are saying, sir, is that it may be possible with the assistance of the Commission, if we can't resolve it ourselves and it doesn't seem to be going that way at this point in time but maybe. I am always hopeful. Anything is possible.

PN15

That on the resurrection of this matter on Monday, the 127 application, that it may be of some assistance if the Commission was involved in trying to conciliate the matter. I think that is well within the jurisdiction of the Commission, because my understanding at least that is not unprecedented so - - -

PN16

THE DEPUTY PRESIDENT: No, it is not. But the purpose of 127 are, as others have put to me, which I think is accurate, the purpose of 127 are to deal with the action. And while it is framed in a way that is to give quick relief or access to quick relief. The purpose of 127, in my view at least, Mr Bull, isn't framed to deal with what would otherwise be 170LW matters or 99 matters. So, if what you are suggesting is that notwithstanding that this matter be adjourned and that the parties enter into discussions, I would encourage that. If you are taking it further and saying and if those discussions are unsuccessful, you may be seeking the assistance of the Commission, well, we will deal with what form that assistance would take at the time, according to what you seek.

PN17

MR BULL: Yes. Well, it may be, your Honour, that come Monday and we still haven't resolved the issues, that people are still at work. And, therefore, the necessity for a 127 order will fall away. But we would still, you know, we would require the assistance of a third independent party, being this body, which is actually required, as you are aware, under the grievance procedure and, therefore, it may be necessary for a section 99 dispute notification be filed on that basis. We are just simply concerned that come Monday if we don't see an impending result in terms of both parties reaching agreement, it may be possible, but I understand that the request made this morning by my friend in terms of having manual - people appointed specifically to manually handle the ice is not something that the contractors are able to agree to and not something that I understand happens outside in other areas of a similar nature. It may well be - happened at Murrin Murrin. I don't know.

PN18

THE DEPUTY PRESIDENT: What you are saying, what you are implying, is there might be other means of addressing the issues which reach the same effect?

PN19

MR BULL: Yes, your Honour. On the basis of what you have indicated, that we would like to have the 127 remain on foot but adjourned. If employees don't go back to work on Monday, then we would certainly advise the Commission and ask for the matter to be re-listed. If they do and we are able to resolve the issues with discussions with the various unions, well, well and good and we will advise the Commission of such. If we are unable to, and the employees are at work, and we do need the assistance of the Commission and we are required to follow the grievance procedure, then either the union or the companies themselves will make an application under the appropriate sections of the Act.

PN20

THE DEPUTY PRESIDENT: Yes. Well, we are always here.

PN21

MR BULL: It seems that - - -

PN22

THE DEPUTY PRESIDENT: Although some assert on some occasions that we are not, we are always here.

PN23

MR BULL: I have never heard that. Thank you, sir.

PN24

THE DEPUTY PRESIDENT: Mr Kucera, do you want to add anything?

PN25

MR KUCERA: I don't have anything further, sir. Sorry?

PN26

THE DEPUTY PRESIDENT: Do you want to add anything or comment or put anything on the record?

PN27

MR KUCERA: No, sir. Other than just that, yes, we would like to see the application adjourned today, sir, and then we will see where that takes us on Monday.

PN28

THE DEPUTY PRESIDENT: Okay. Well, what I will do is adjourn the 127 proceeding and I await any advice from you, Mr Bull, as whether you wish that to be reconvened or if you wish the assistance of the Commission in the underlying issues that appear or are asserted to have caused the action, then it is up to you as to what vehicle you may wish to use to seek that assistance, should it be so sought. Whether it be this vehicle or another vehicle. And I won't set a time for Monday or any other time. But if there is continuance of industrial action, and you seek re-agitation of the 127 matter, obviously it will be listed as quickly as possible and most likely on Monday at some time.

PN29

I would suggest and recommend to you, Mr Kucera, that you recommend to the employees involved in the issues that they do return to work on Monday at their scheduled starting time. And if there are any issues that they have grievances over, to progress those in an appropriate manner without resort to industrial action. I will rely on you to convey that to whoever you need to convey it to within parties that you are representing. But I would also request that you also convey that to union officials of other unions that are party to these proceedings. This matter is adjourned on that basis.

ADJOURNED INDEFINITELY [11.04am]