C2004/6091, Transcript of Proceedings [2004] AIRCTrans 4064 (21 October 2004)

AUSCRIPT AUSTRALASIA PTY LTD
ABN 72 110 028 825

Level 6, 114-120 Castlereagh St SYDNEY NSW 2000
PO Box A2405 SYDNEY SOUTH NSW 1235
Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS

O/N 14338

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER HARRISON

C2004/6091
C2004/6098

THIESS-HOCHTIEF JOINT VENTURE (BEING A
JOINT VENTURE BETWEEN THIESS PTY LTD
AND HOCHTIEF AG AUSTRALIA)

and

CONSTRUCTION, FORESTRY, MINING AND ENERGY
UNION and OTHERS

Notification pursuant to Section 99 of the Act
of an industrial dispute re alleged safety issues
on the Epping to Chatswood Underground Rail Link
Project

APPLICATION FOR AN ORDER TO STOP
OR PREVENT INDUSTRIAL ACTION

Application under section 127(2) of the Act
by Thiess-Hochtief Joint Venture (being a joint
venture between Thiess Pty Ltd and Hochtief
AG Australia) and CFMEU for an order to stop
or prevent industrial action on the Epping
to Chatswood Underground Rail Link Project

SYDNEY

10.00 AM, MONDAY, 11 OCTOBER 2004

Continued from 30.9.2004

PN123

THE COMMISSIONER: Thank you. No changes in the appearances?

PN124

MR DIXON: No, Commissioner.

PN125

MR DOHERTY: No.

PN126

THE COMMISSIONER: Okay. Who wants to begin?

PN127

MS McKENZIE: Perhaps I can report back, Commissioner. Following the resolution of dispute agreement which was accepted by the parties at the end of Thursday, 30 September, there was expected by the company to have been a resumption of work at the next available shift which the company clearly understood on the Thursday to be the night shift on the Thursday night.

PN128

That did not occur and the next shift which was due to start was at 7.30 am the following morning. Resumption didn't occur at that point either. Instead, there was the mass meeting of the employees and, on the basis that by 10.30 there hadn't been a resumption, the company contacted the Commission and requested interim 127 orders to enforce the agreement which had been reached by the parties the night before, but as it transpired, there was a resumption of work soon after 10.30 and on that basis, the 127 orders were not issued. And since there's been the resumption of work, work has continued normally since that time.

PN129

In relation to the matters which were agreed as the resolution of dispute on the Thursday, I'm instructed to report that THJV has complied with all of its obligations that it committed to. In particular, it has already provided the unions and employers with a list of three alternative air quality monitoring consultants and point 2 of the agreement requires the independent air monitoring review to be undertaken, so a list of consultants has been provided with a view of obtaining the agreement of the unions to a consultant.

PN130

Secondly, the company has engaged Hyder to carry out the independent review and assessment of the temporary ventilation design on the project, which is point 3 of the agreement. Next, the company has complied with point 4. It has installed already the ventilation blower fan at Macquarie Park station. In relation to point 5 of the agreement, the company has arranged for the Dust Diseases Board to provide chest x-rays and lung function tests during November, and employees have been notified of that and asked to submit their details so that those tests can occur.

PN131

And, finally, in relation to point 6, a review has been undertaken of all of the major plant and equipment on the project and where catalytic converters are required, they have been ordered and subcontractors and suppliers have been advised of the need to ensure that all plant and equipment complies with the 1990 Code of Practice. And in that regard, Commissioner, there is approximately 35 pieces of plant that need to be adjusted. Of those, only 12 of them are vehicles owned by THJV, the rest are contractor vehicles, and that's out of a total of approximately 122 - 25 total plant on the job. So that is under way. As far as we know, there will be no delay in - caused by availability of equipment for that conversion to take place.

PN132

So, it's the company's view that it has complied fully with the agreement reached on Thursday, and it would expect that there would be similar compliance going forward by the unions and employees in relation to continuation of normal work and the following of dispute settlement procedures or other internal procedures for raising any other issues that might subsequently arise. If it please the Commission.

PN133

THE COMMISSIONER: Yes.

PN134

MR DIXON: Maybe I'll go first, Commissioner. We haven't seen the results of the point 6. This is the first time that we've heard these figures. In relation to the resumption of work, the impression I got, sitting here, listening, was that the only reason employees went back at 10.30 was because the company informed them that there were going to pursue section 127 orders and that's not correct. There was no commitment given that the employees would go back to work immediately upon the conclusion of the proceedings in the Commission on the last occasion.

PN135

There was a need to have a meeting with employees and explain the company's position and what the document meant. That took from 7 am till 10.30 am, and part of the hiccup was that the issue of the blasting hadn't been dealt with in the document, and the company's position, predictably, was to back flip about 7.30 am. No one could give an answer, so it took from that period of time until 10.30 to get agreement that there'd be no blasting, and employees weren't going back to work if the blasting was going to continue in the fashion that it had beforehand.

PN136

Maybe I'll leave my comments at that, at the moment.

PN137

THE COMMISSIONER: Mr Doherty?

PN138

MR DOHERTY: This morning we've been given a list of answers to the six points that we discussed here over a week ago. Only one of them issues that I'm aware of, we received a letter from the company, with the company nominating three companies to do air monitoring on the project, without any input from ourselves, I might add. We replied - we've since replied to their letter, suggesting alternative people. But as far as the other points are concerned, we've had no meetings with the company or no discussions have been held with us, which was said. There were some figures about vehicles read out.

PN139

We're not aware of that. All I am aware of, the delegates rang me this morning and said that two weeks, they agreed to have these vehicles processed by - finishes on Friday and they haven't done any as yet. And then we were just informed here this morning that Hyder are doing some inspections and - I don't know. We don't really know. All we've heard is what has been said this morning, so I don't really know where everything is up to.

PN140

THE COMMISSIONER: Well, the proposal for the resolution of the dispute at points 2, 3, 4 and 5 essentially are prefaced by saying that THJV will engage and the report this morning is that they have done that. I don't know whether it was contingent upon consultation. That certainly wasn't my understanding, but point 6 is something which - it will be an ongoing matter, as well. Mr O'Brien?

PN141

MR DIXON: Maybe, Commissioner, if I could just clarify what the employees' point of view is in relation to point 6. Their understanding is that at the expiration of the two weeks, any vehicles that don't comply to the Code of Practice for tunnels under construction, they are going to be removed from the tunnel. That's the understanding on the job.

PN142

THE COMMISSIONER: Right. Perhaps the company can come back to that. Mr O'Brien, do you want to add anything? Mr O'Brien?

PN143

MR O'BRIEN: I've got no more to add to that, Commissioner.

PN144

THE COMMISSIONER: Ms McKenzie?

PN145

MS McKENZIE: I can clarify Mr Dixon's point in relation to point 6. There will be no plant and equipment which will be used underground which does not comply with the 1990 Code of Practice, clause 13 in particular, "Tunnels Under Construction". However, just so I make it absolutely clear - and this was the point we made clear in the course of the conferences on 30 September - the company does not accept that compliance with the Code of Practice requires every vehicle to have a catalytic converter.

PN146

The Code of Practice requires the vehicles to have emission monitoring or control devices and all vehicles that are used underground will comply with that Code of Practice. And, in some cases, with the vehicles that have been identified that need to be modified, will, if they require catalytic converters, they won't be working underground without catalytic converters after that period. I'm sorry, Commissioner.

PN147

Sorry, Commissioner, I just had to clarify that with Mr Burns. The company has agreed to put catalytic converters on the vehicles that I identified. That may not be done - all those vehicles may not be converted within the two week period, just in terms of the timing and, in particular, a number of those vehicles belong to contractors and the contractors have been required to do that. But there won't be vehicles underground which do not comply with the Code of Practice. So what that means is that there may be vehicles which are in fact going to get catalytic converters put on them, but which otherwise, after the two week period's expired, don't breach the 1990 Code of Practice. If that makes it clearer.

PN148

MR DIXON: I think it clouds it rather than makes it clearer. The company committed to complying with the Code of Practice, in respect of vehicles, and there was a two week period they needed to sort it out. They're saying today that they've ordered catalytic converters. What, is there a scarcity of them in Australia or something. I mean, if I need something from my house, I go down the shop and get it. This is a billion dollar project, there's no excuse for delays on this. This is a major issue that impacts on the health of employees on the site and if they haven't done it in two weeks, then we'll contact WorkCover and get it sorted out, one way of the other.

PN149

THE COMMISSIONER: Well, if there's any delays, it's only going to disadvantage the company, because if there's any delays, the equipment won't be used underground.

PN150

MR DIXON: As long as that's the case.

PN151

THE COMMISSIONER: Well, that's my understanding.

PN152

MR McKENZIE: Well, there's no argument, Commissioner, that the company has agreed that all major plant and equipment used underground will comply with the 1990 Code of Practice. There is no issue about that. I mean there might be scope for some difference of agreement about whether compliance with the 1990 Code of Practice requires absolutely, in every respect, catalytic converters and there is - the company is getting catalytic converters fitted on plant and equipment.

PN153

If it doesn't otherwise comply, then they won't be used after the two week period. But it may be that they do still comply, because the plant has already some form of emission control fitted. And the two week period was agreed to, because that's how the company interpreted the 1990 Code of Conduct. I mean there's no - otherwise the company would not have committed to an absolute period, having regard to the fact that a lot of the plant and equipment is actually not owned by the company, it's owned by contractors.

PN154

Now, they've been told what their obligations are. The catalytic converters have been ordered, it just takes time to get them fitted. But, after the two week period, and in fact prior to the period, there won't be plant and equipment underground which doesn't, in our view, meet the Code of Conduct - Code of Practice.

PN155

THE COMMISSIONER: I can tell by Mr Dixon's body language that he's happy with that.

PN156

MR DIXON: Sounds good.

PN157

THE COMMISSIONER: Not that he might say so publicly, but I can tell.

PN158

MR DIXON: Sounds promising, Commissioner.

PN159

THE COMMISSIONER: All right. Well, I think, in all of the circumstances, there's nothing more than can be done. I trust that the job will continue productively and efficiently and safely, and everybody's happy. All right. These proceedings will stand adjourned.

ADJOURNED INDEFINITELY [10.15am]