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Australian Industrial Relations Commission Transcripts |
AUSCRIPT AUSTRALASIA PTY LTD
ABN 72 110 028 825
Level 10, 15 Adelaide St BRISBANE Qld 4000
(PO Box 13038 George Street Post Shop Brisbane Qld 4003)
Tel:(07)3229-5957 Fax:(07)3229-5996
TRANSCRIPT OF PROCEEDINGS
O/N 3521
AUSTRALIAN INDUSTRIAL
RELATIONS COMMISSION
COMMISSIONER SPENCER
C2004/6549
APPLICATION TO STOP OR PREVENT
INDUSTRIAL ACTION
Application under section 127(2) by G & S
Engineering Services Pty Ltd for orders
in respect to dispute over domestic issues
relating to the camp and facilities on site
BRISBANE
3.15 PM, THURSDAY, 4 NOVEMBER 2004
THIS HEARING WAS CONDUCTED BY TELEPHONE
AND RECORDED IN BRISBANE
PN1
MR C. TOMLINSON: I appear for the Australian Industry Group on behalf of G and S Engineering.
PN2
MS K. ELLEN: I appear on behalf of the AFMEPKU in this matter. On the phone today I have state organiser, MR CAIN LOWTH.
PN3
MS P. ROGERS: I appear on behalf of the CEPU.
PN4
THE COMMISSIONER: Thank you, Ms Rogers. Right. Mr Tomlinson, it's your application?
PN5
MR TOMLINSON: Yes, if it please the Commission. Commissioner, I appreciate having the matter relisted at such short notice. Commissioner, the application is - - -
PN6
THE COMMISSIONER: It's not a relisting, is it?
PN7
MR TOMLINSON: No.
PN8
THE COMMISSIONER: I had to make sure it wasn't someone else's file.
PN9
MR TOMLINSON: No. Commissioner, the application for orders is made as a result of strike action taken by employees of G and S Engineering Services Proprietary Limited this morning. Approximately 150 employees met prior to the morning shift where they were performing maintenance work at the Riverside - Goonyella Riverside mine. The employees have resolved to strike until we understand the afternoon shift on Sunday afternoon when they will return to work. However, it is not clear whether or not there is an automatic return to work on Sunday or whether or not they intended to conduct a further meeting.
PN10
THE COMMISSIONER: So, Mr Tomlinson, I missed that time. When did that - when was that resolution taken? When did the - - -
PN11
MR TOMLINSON: This morning.
PN12
THE COMMISSIONER: At? Before the start of the shift this morning?
PN13
MR TOMLINSON: Before the start of the shift, yes, Commissioner. I will take evidence from Mr Crowe from the company who is on the line. And he can clarify that point but it was just prior to the shift this morning.
PN14
THE COMMISSIONER: All right.
PN15
MR TOMLINSON: Commissioner, the disputes resolution procedure in the agreement that covers the employees, clause 19, is quite comprehensive and goes to great lengths to emphasise the importance of the continuation of work during the course of the resolution of any matters in dispute. As a result of this action, Commissioner, the employees have ignored totally the disputes resolution procedure and have placed the company in a difficult position having lost its work force who were engaged on important maintenance work and therefore not fulfilling its obligation to its client. Commissioner, I make further comments in later submissions. And I think it's probably best now if we could call Mr Mick Crowe from the company to provide evidence to the Commission.
PN16
PN17
THE COMMISSIONER: Thank you. Mr Tomlinson?
PN18
MR TOMLINSON: Mr Crowe, could you state your full name and your title and address?---Yes. Michael Gerard Crowe and my title is Manager Maintenance and Site Services for G and S Engineering Services.
PN19
In relation to the employees who are currently on strike, could you explain briefly to the Commission the type of work that they are performing?---We're performing a relocation and major maintenance shut down on a shuttle and conveyor system at Goonyella Riverside mine which is a stripping machine. Basically the project runs over about four months; expected to be completed in early January.
PN20
Thank you. And you can confirm that there are approximately 150 employees on strike; is that correct?---I haven't got an exact number but to incorporate all the different trades that were working out there, yes, that's about the mark.
PN21
Could you explain to the Commission what occurred this morning prior to the employees taking strike action?---We received a phone call advising that there was going to be a meeting. I'd understood that there was going to be some sort of discussion going on but we didn't know what form it would take. We got a phone call from the union advising about 5 o'clock this morning that it was going to be a joint meeting in that they were going to hold the day - sorry - the day shift was not going to go in to work as planned and wait at camp for the night shift to come in so that both crews could be together and discuss the issues they had at the particular time. That meeting was held at the - the union delegate came. He told me he would call me back as soon as they got out of there. He said that his intent was to see what their grievances were and find a process of fixing it and get them back to work once the day shift had been held back for the meeting. And after the meeting finished he rang me and advised that he hadn't been successful in that and that the guys had gone out on strike.
PN22
Okay. What time is this morning shift due to start or was it - - -?---It's due to start work at 6.
**** MICHAEL GERARD CROWE XN MR TOMLINSON
PN23
6 am. And what time did the meeting commence, do you know?---I guess it would have commenced about 6.30 or something like - 6.45 by the time they got back from site.
PN24
So where was the meeting conducted?---At - I think it would have been conducted at camp 2 in Moranbah.
PN25
And what time were you advised that the employees had taken strike action?---I didn't take exact note but I guess it would have been about 8, 8.30. Cain?
PN26
MR LOWTH: Yes, around about 8 o'clock.
PN27
MR TOMLINSON: Was there any discussion of - did you have any discussion with any union representatives or employee representatives prior tot he employees leaving the work site?---This morning. I don't believe there was anything this morning. I know the Project Manager spoke to both crews yesterday afternoon when day shift finished and then night shift when they came in about where they were at with the list of things they were working on. But I don't think there was any this morning.
PN28
In relation to the resolution of the employees, are you clear on what will occur on Sunday?---Not - you know not with any great degree of certainty. My understanding is that the boys said they were out and would come back to commence night shift Sunday night but that would probably be conditional that there may be another meeting at that time. I'm not sure.
**** MICHAEL GERARD CROWE XN MR TOMLINSON
PN29
Did the employees nominate the reasons for the dispute?---I was actually out on site yesterday and there was a fair list of issues. Primary in that is - there's two basic areas. One of dissatisfaction with the camp. The fact that they have got to travel to a different camp to get meals. Then a new problem developed with some fleas that is being addressed which is causing a great deal of problems. There have been ongoing issues with washing machines, the car park is not sealed. There have been - there always is ongoing dramas with camps I suppose but those are the main ones that have been mentioned. They also had trouble with the crib huts on site in that they weren't reliably supplied with power and there were power trip-outs happening. And that was affecting how cool they were and perhaps some of the gear there wasn't good enough anyway and maybe we needed to replace that. We're looking into that at the moment.
PN30
So the result of those issues has been raised. Is it fair to say that you are working through those issues and resolving them? Is that a - - -?---Yes. Well, you know, there's been issues from the start we've been using this camp. And I believe they had been being addressed but it's obvious some of them not at a great rate of knots. Some of that is beyond our control. The stuff on site I understood that they did have a replacement conditioner arrived on site yesterday. They ordered cable to run bigger power to the crib huts and - but we hadn't as of yesterday ordered new crib huts to try and get even more room but they've done that today. Yes.
PN31
MR TOMLINSON: We have nothing further, Commissioner.
PN32
THE COMMISSIONER: Mr Tomlinson. Ms Ellen?
PN33
PN34
MS ELLEN: Mr Crowe, it's Katelyn Ellen here. I'm a research officer with the AMWU. Did you receive a letter this morning from Mr Cain Lowth concerning the problems - well, the issues concerning the camp and work related issues?---Yes, I did. Yes.
**** MICHAEL GERARD CROWE XXN MS ELLEN
PN35
Have you got a copy of that with you, Mr Crowe?---Yes. Yes.
PN36
Commissioner, I handed you a copy of that letter - - -
PN37
THE COMMISSIONER: Yes, I have a copy.
PN38
MS ELLEN: - - - prior to the hearing.
PN39
THE COMMISSIONER: Do you wish to mark that as an exhibit? Mr Tomlinson, you have a copy of that, don't you?
PN40
MR TOMLINSON: Yes, I do.
PN41
MS ELLEN: Yes, I've provided to everyone else, Commissioner.
PN42
PN43
MS ELLEN: Mr Crowe, is this the - - -
PN44
THE COMMISSIONER: For the record I'll just - - -
PN45
MS ELLEN: Sorry, Commissioner.
**** MICHAEL GERARD CROWE XXN MS ELLEN
PN46
THE COMMISSIONER: No. You take that - you take Mr Crowe to that document.
PN47
MS ELLEN: Mr Crowe, I take you to the document. When you received this document this morning, was this the first time that you have been notified of these problems?---Myself. personally, it's the first time I've seen that, but our guys on site, pretty much all of them except for the pay slip one and that - the travel claims, the staff at the gate - all of those were known, yes.
PN48
And they were known to you prior to today as well?---I found out about them yesterday.
PN49
Okay?---In relation to this project, the camp that they're in, well, I've known about the problem with the meals since they opened the camp.
PN50
Are you aware that there's been - for the last month at toolbox meetings, these - particularly the issues of the camp have been brought up?---Not specifically. I knew from talking to the guys that we were having troubles with the camp and we've had troubles with that particular camp previous to this as well.
PN51
And when you previously had problems with the camp, were these issues resolved?---The problem we have is that we don't control the camp. At the end of the day we can tell the guys where they go and we can work with the camp to try - things like washing machines, if they need fixing, we can say, "These are broken down, can you fix them?" or, "There's a drama with the cleaners." And, again, that camp is usually pretty good in getting back to you and giving you emails to tell you what's going on, but things like where they can eat, the fact that it's a temporary camp, the fact that the car park is not sealed, is - we don't really have any control over those sort of issues and they come up every time.
**** MICHAEL GERARD CROWE XXN MS ELLEN
PN52
Do you have control over the issues of fumigation of fleas and cleaning of toilets and showers and the provision of washing machines and dryers?---We - well, with the flea one, that came up yesterday - if not yesterday, the day before, I don't know, but we talked to the camp straight away. They said they just had an insecticide guy through. They got the guy back out there today fumigating for fleas. I think that's the worst problem. I think it might have something to do with the boys also reckon there's some feral cats and that running around and that the two might be related and the camp is trying to get rid of the cats as well.
PN53
So, Mr Crowe, the company certainly recognises and acknowledges that there is a number of problems wrong with the camp at the moment?---Yes. I don't think any of that - none of the issues on that letter are wrong.
PN54
And you certainly don't dispute that any of the dot points - eleven - that's both the camp issues and the work issues, the company acknowledges and recognises that they are problems on site?---I don't know.
PN55
I just counted the number of dot points?---Yes. The water supply one, I'm not sure, it could have happened. The pay slip one, I checked with payroll and they didn't know of any issues of not - having problems of getting them there. And that last issue is a new one, but I can see where they're coming from but I don't know if we can go anywhere if we have to involve DMA in something like that.
PN56
Okay. Just finally, Mr Crowe, before in your evidence Mr Tomlinson asked you a question about that there was a list of things that the company was working on?---Yes.
**** MICHAEL GERARD CROWE XXN MS ELLEN
PN57
What are those things?---There's been several lists. I mean, there normally is lists of stuff that come up when you've bunches of people in a camp with things like car parks or machines breaking down or problems with the cleaners or whatever. There's been a number of processes - we were in this camp on a job before this as well where the site manager hears stuff from the toolbox talks. We go and talk to the camp and come back. I think I've forwarded Cain a couple of emails there. It happened in this week, the day to day issues, but I think there's been one before that as well where issues have been brought up and dealt with where possible.
PN58
So these things don't necessarily pertain specifically to the camp issues and work issues listed in our correspondence, or the union's correspondence of 4 November? They are also dealing with additional things such as machinery?---Specifically the washing machine and stuff there.
PN59
I don't have any more questions, Commissioner.
PN60
MS ROGERS: I actually just have one very quick question, Commissioner.
PN61
PN62
MS ROGERS: Mr Lowth, my name is Pat Rogers. I'm an industrial officer with - Mr Crowe, sorry?---That's all right.
PN63
My name is Pat Rogers. I'm an industrial officer with the CEPU?---Yes.
PN64
You say in your evidence that there's been issues with this camp since the start of the camp. How long has that been?---I tried to confirm that this afternoon. I'm not sure. I think Eagle were the first people to stay there. We think that might have been, like, November last year or something like that.
**** MICHAEL GERARD CROWE XXN MS ROGERS
PN65
So for the last 12 months there have been issues in terms of the quality of the accommodation that's been provided?---The drama with that camp is there's no mess there and you have to hop on a bus to go and get fed. It's unacceptable.
PN66
I don't think I have any - I think that's an issue that's been raised in the letter to you today. I don't have any further questions at this stage. Thank you?---Okay.
PN67
PN68
MR TOMLINSON: Mr Crowe, I did ask this question before, but just for completeness, could you tell me when you started work on this particular project?---We put crews on the ground on this one - where are we - October 10. Yes, October 11, I think it was.
PN69
THE COMMISSIONER: '03?
PN70
MR TOMLINSON: This year?---Yes.
PN71
Yes, '04, Commissioner. No, I have nothing further, Commissioner.
PN72
THE COMMISSIONER: Mr Crowe, just - you say that those crews were put in place this year on 10 October?---Yes. I don't think it was the full crew started up on that date but we started on this project on the 10th and I think that they maybe manned up over the next couple of weeks.
**** MICHAEL GERARD CROWE RXN MR TOMLINSON
PN73
So the 150 employees that are involved in the strike, they have been there from what date - since then or prior to that?---Some of them, like - again, I wouldn't know the exact figure, but we were on a job in the wash plant before that where there might have been 60 or 80 people and I guess maybe - I don't know, presumably two-thirds of them came across, so there might have been blokes who had been out there, say, for most of September in that same camp and maybe went away for a week or so and then came back.
PN74
Now, the issue you say on the letter, there's the camp issues in terms of the fumigation of the fleas?---Yes.
PN75
When was that first brought to your attention?---That one just came up - I can't remember if it was yesterday or the day before. That's a new one.
PN76
All right. And what action has been taken in regard to that?---We contacted the camp straight away. They - they told us at the time there wasn't actually a fumigation in Moranbah, that they'd get one out, and there has been one out there today doing a flea treatment.
PN77
All right. The issues with the other facilities at the camp in terms of the cleaning of the showers?
PN78
MR LOWTH: I can't hear at the moment.
PN79
THE COMMISSIONER: Just a minute. We'll just lift one of the monitors up. Mr Lowth, can you hear now?
PN80
MR LOWTH: Thanks very much.
PN81
THE COMMISSIONER: All right.
**** MICHAEL GERARD CROWE RXN MR TOMLINSON
PN82
Mr Crowe, the other issues there in terms of the cleanliness of the facilities, have they been the subject of discussions?---Yes. We got an email back yesterday from the camp addressing - like, there was room cleaning and toilet and shower cleaning. I think the basic reply - I haven't got it right in front of me - was that they had documentation to show that it has been cleaned and they have been told by the head cleaner in saying that it has been, but our blokes have said sort of different so we're going back to them to say, "Well, here's a couple of examples where that might not be true and you might have some issues with your staff being square with you", sort of thing, you know.
PN83
All right. So when did that come to your attention?---The problems with the - - -
PN84
Yes, the cleanliness?---I couldn't tell you exactly the first time it was raised but I believe it was raised to a point where we had something we could take to the camp this week, but I don't know for certain. I'd have to check out that and get back to you.
PN85
Well, what about the washing machines and dryers?---I believe that one's been going for a couple of weeks.
PN86
How many are on site currently?---Don't know, but I do know that in a letter that the camp sent us yesterday they said that they have one per 15 men, which is apparently part of a standard or something. So that has been raised yesterday, that letter?---That was feedback from the camp manager. On the laundry issue he spoke to his cleaning supervisor and if the occupants require washing done on any day of the week, they would place it in an appropriate area.
**** MICHAEL GERARD CROWE RXN MR TOMLINSON
PN87
So is that the normal course that when there is an issue such as this the employees raise that in an email? Or has there been meetings?---The employees would raise it at a tool-box talk at the start of shift or something. You know, you're normally having a talk about safety and what's happening on the day, is there any issues; and that's when they will normally raise things if there's an issue with the camp. We will then - we are sort of a middle-man: the crews tell us what problems they got. We've then got to talk to the camp; the camp then tells us what they think is happening and we try and make sure - - -
PN88
Who is the organisation that has control of the camp?---I'm sorry, I missed the first part.
PN89
Who has control of the camp?---It's a company called MAC, which is Moranbah Accommodation Centre.
PN90
All right. Thank you. Anything arising from that?
PN91
MR TOMLINSON: No matter, Commissioner.
PN92
THE COMMISSIONER: All right. Thank you for your evidence, Mr Crowe?---Thank you.
PN93
THE COMMISSIONER: Mr Tomlinson?
PN94
MR TOMLINSON: Commissioner, that's all the evidence we have.
PN95
THE COMMISSIONER: All right. Any evidence?
PN96
MS ELLEN: Yes, Commissioner. We would like to ask Mr Lowth to give brief evidence today.
PN97
THE COMMISSIONER: Mr Lowth, this is evidence. Now Ms Ellen will ask some questions of you and then perhaps Ms Rogers and Mr Tomlinson. We are in a different format now and we're taking evidence before the Commission. All right?---Yes, sure.
PN98
MS ELLEN: Mr Lowth, can you please state your full name, position and address for the record?---William Cain Lowth, state organiser for the Australian Manufacturing Workers Union, (address supplied).
PN99
Thank you. Mr Lowth, how long have these issues been going on on-site?---Approximately four weeks, I'm told.
PN100
And have you seen these conditions for yourself, Mr Lowth?---Not the site conditions. The camp conditions but not the site conditions.
PN101
And what are they like?---The camp conditions are - has been indicated on the letter conveyed to Mick Crowe with those dot points - the camp issues, I can certainly say, that I saw that myself.
PN102
What did you see?---Well, I went for a walk around - mostly around two blocks where the fleas were and they were certainly there; I had them on my jeans. The toilets and showers didn't look like they had been, you know, in the condition that you would expect them to look if they were cleaned every day; to the extent that where there was old bottles and old cigarette butts and footprints and what-not on the floor. The washing machines and dryers: I went in there and counted eight washing machines and eight dryers. However, some had, "out of order" written on them with masking tape. Some had had that and had obviously been removed so whether they were - the blokes were saying that they believed they hadn't been fixed; just the stickers had been taken off, basically. I didn't run any clothes through there to find out that for - the only way we're going to know one way or the other whether they had been fixed or not.
**** WILLIAM CAIN LOWTH XN MS ELLEN
PN103
Has the work force discussed their concerns with the management with respect to these issues?---I was told that they approached management on numerous occasions on tool-box talks and the delegate himself has taken these issues up with the project manager who - I only know his nickname, which is Rocket.
PN104
Have you had any meetings with management about these issues?---Not - previous phone call to Mick Crowe last night and this morning. Once I found out the guts of what was going to happen this morning I relayed that on as soon as I could.
PN105
Are you aware that management has done anything to fix the issue of the dirty toilets and showers and washing machines?---I'm unaware of anything - I had seen emails where they've certainly brought it up but nothing has been done about it, essentially.
PN106
Were you aware there were fumigators coming out today for the fleas?---I was aware that there was fumigators there two days ago. However, they weren't flea-hunting, if you like. I didn't know they were coming back today until you just mentioned before.
PN107
Do you believe that management has made any type of serious effort to fix these problems?---I think management has possibly approached people who they believe are in to be fixing the problems. However, we don't think that there has been enough done.
PN108
Okay. Thank you, Commissioner. I don't have any further questions.
PN109
**** WILLIAM CAIN LOWTH XXN MR TOMLINSON
PN110
MR TOMLINSON: Thank you, Commissioner. Mr Lowth, are you familiar with the certified agreement that the employees are operating under or working under out on that site?---I am.
PN111
Are you familiar with the certified agreement that the employees are working under at that site?---Yes.
PN112
Are you familiar with the disputes resolution procedure?---Yes.
PN113
Would you agree that it is a rather comprehensive procedure?---It is fairly comprehensive, yes.
PN114
Would you also agree that it has a great emphasis on remaining at work whilst dealing with disputes?---It certainly has got that emphasis.
PN115
Have you always found the company approachable in dealing with any matters that you have had to raise on behalf of your members?---In general, I would say yes.
PN116
I have no further - - -
PN117
THE COMMISSIONER: Thank you. Do you have anything further, Ms Ellen?
PN118
PN119
MS ELLEN: Mr Lowth, do you believe that the employees have tried to consult and discuss these issues with management?---No doubt about that.
**** WILLIAM CAIN LOWTH RXN MS ELLEN
PN120
Thank you, Commissioner.
PN121
PN122
THE COMMISSIONER: Mr Tomlinson?
PN123
MR TOMLINSON: Thank you, Commissioner. Commissioner, I think the evidence clearly shows that there are issues in relation to accommodation of the employees on this site. But the important thing as far as the company is concerned is that the company has attempted to address these issues in line with its obligation as a responsible employer and also in line with its obligations under the disputes procedure of the agreement. Commissioner, I would just like to point out a couple of paragraphs in the disputes procedure just to emphasise the points that are listed in the disputes procedure which may be considered a little more than what you would expect in standard disputes procedure clauses in agreements. The first paragraphs says that:
PN124
The objectives of the procedure are to promote the resolution of disputes ...(reads)... consequent to a loss of production and wages.
PN125
And then on the second-last paragraph in clause 19, Commissioner - the second-last dot point, I should say, it says:
PN126
In order to allow the peaceful resolution of grievances the parties shall be committed to avoid stoppages of work, lock-outs or any other bans or limitations on the performance of the work while the procedures of negotiation and conciliation are being followed.
PN127
And, Commissioner, the procedure does allow for the standards or approaches to disputes resolution in the sense that the employees either raise these issues with their supervisors and progress through to senior management and they ultimately can come before this Commission by way of conference to seek the assistance of the Commission in resolving disputes. In relation to this particular case, Commissioner, we submit that if the unions felt - and we're not in any way suggesting that the company hasn't responded - but if the unions and employees felt that the issues weren't being dealt with appropriately, then it was quite open to them to notify this Commission and have this matter brought before conference.
PN128
There was no need, Commissioner, to take the strike action which it did take this morning without warning to the company. And, in fact, Commissioner, the evidence of Mr Crowe, which was not contested, was that Mr Lowth expected that there would be only a slight delay to the start of the shift this morning and there would be a return to work. In fact, that didn't happen and as a result the employees left the site; there was no opportunity for the company to have any further discussions and the company now finds itself unable to continue work as these employees have dispersed.
PN129
THE COMMISSIONER: When you say they've dispersed - - -
PN130
MR TOMLINSON: I would imagine - and Mr Crowe or Mr Lowth may be able to confirm this - but I imagine most of them live in Mackay, Commissioner, which would be approximately three hours' drive. Is that correct?
PN131
MR CROWE: It is about two hours drive.
PN132
MR TOMLINSON: Two hours drive, is it?
PN133
MR CROWE: You could probably say hip shooting 75 per cent of them would be in Mackay, 70-75 per cent.
PN134
MR TOMLINSON: Yes, okay.
PN135
THE COMMISSIONER: And is the next shift, Mr Tomlinson, to resume on Sunday?
PN136
MR TOMLINSON: Well, Commissioner, they are due to work night shift tonight and a full shift tomorrow and then resume - and the next shift following that is then on Sunday at 6 pm. That's correct, Mr Crowe, isn't it?
PN137
MR CROWE: Yes, yes.
PN138
MR TOMLINSON: So, Commissioner, the industrial action taken by these employees, I think, is quite clearly - is unprotected industrial action and, therefore, is in contravention of their disputes procedure that is contained in the agreement. The company, as I said, finds itself in this position where by virtue of this industrial action the company has lost valuable production, but more importantly there's an agreement which is agreed to by the employees and the unions which places great emphasis on the need to fulfil the obligations to the client and also to avoid - by avoiding industrial disputation.
PN139
And even to the extent that in the point I raised it uses such things as lock-outs and clauses such as that which, therefore, obviously places some imposition on the company as well in terms of what actions it may take all in the interests of fulfilling their obligations to their clients who they are performing maintenance work for. Commissioner, this has obviously, as I stated, clearly been breached today and we submit - respectfully submit that it's a clear case of the employees just totally ignoring the disputes procedure, totalling ignoring their obligations under the agreement under which they work and we would seek an order for two weeks.
PN140
And we base that application on the order, Commissioner, that we would want the disputes procedure - and the company to show that the disputes procedure will work and that the employees return to work and it allows the company to address any outstanding issues that may currently exist and any others. And if ultimately, Commissioner, the matters are unresolved then it's open to either party to come before this Commission to seek the Commission's assistance. That is the idea of the procedure to avoid any industrial disputation or where a company loses production and employee unnecessarily lose wages. May it please the Commission.
PN141
THE COMMISSIONER: Mr Tomlinson, you indicated in the order - if the orders were to be given that they were to come into effect at 5 pm this evening. What is the efficacy, if those orders were made and they were to come into effect at that time, at having a night shift actually restored?
PN142
MR TOMLINSON: I might get some assistance from Mr Crowe on that, Commissioner. There may be a practical implication to that. Mr Crowe, if the Commission was of a mind to give the order as requested from 5 pm what would be the practical application of that in terms of a return to work?
PN143
MR CROWE: With regard to night shift anything you did there would have to take into account fitness for work and if the blokes haven't gone home and had a sleep or they have done anything but that, they are probably not going to be able to come in tonight. Some of the locals in Moranbah may be able to. It's fairly hard to answer quantitatively. Certainly we could contact the day shift and attempt to get them back, but there again if they are contactable and in a fit state to be able to work tomorrow morning.
PN144
THE COMMISSIONER: Well, in terms of the service of the order then, Mr Tomlinson, given that they have dispersed how will service on the Secretary of the AMWU and the CEPU facilitate the return to work of those employees?
PN145
MR TOMLINSON: Well, Commissioner, the company - the practical approach to that, Commissioner, we suggest is by the company making contact with each of the employees. And you can hear this, Mr Crowe?
PN146
MR CROWE: That's what my HR people do all the time.
PN147
MR TOMLINSON: Yes. So the company would make contact with each of their employees - of the employees by phone or whatever means.
PN148
THE COMMISSIONER: So as part of that service the company is also undertaking to - - -
PN149
MR TOMLINSON: That's right.
PN150
THE COMMISSIONER: - - - their Human Resources Department to contact each employee to notify them that the orders have been provided, if that is the case.
PN151
MR TOMLINSON: That is correct, Commissioner, yes. And also a copy of the order, if it was issued, the company could facilitate in making sure every employee at an appropriate stage got a copy of the order, Commissioner. But the initial contact would obviously be by phone. Or for any of those that may still be in Moranbah in the camp or somewhere they would personally be contacted.
PN152
THE COMMISSIONER: Is there any history of industrial disputation at the site, Mr Tomlinson?
PN153
MR TOMLINSON: Commissioner, I understand this is the first dispute in this particular project, except that it ha only started in October. So there isn't, but it is a shut-down and, therefore, we would submit it takes on a sort of more urgent dimension rather than just a normal long-term project.
PN154
THE COMMISSIONER: And given that it is early days on this site and that there isn't such a history of industrial disputation I acknowledge what you're saying, that on the basis of the evidence before me I would certainly hear the submissions of the union parties, but given that there has been discussions between the parties is there any ability to resolve this particular matter and maintain the orders in abeyance in this particular issue?
PN155
MR TOMLINSON: Well, Commissioner, the position the company finds itself in is that it was actually working through these issues and, you know, had had discussions with the union official last night and then this action has taken place. So the company doesn't know whether it can, with any confidence, rely on - well, firstly we would need a return to work tomorrow morning, because that's really what the employees should be doing. They should be working tonight, but given what Mr Crowe has said that may be a little unlikely.
PN156
But the company doesn't know now, Commissioner, what certainty - what it can rely on given that it was - it was understood this morning prior to the meeting that there would be a slight delay to work but there would be a return to work. So given that uncertainty the company finds itself in the position where it has to push on to orders.
PN157
THE COMMISSIONER: Anything further, Mr Tomlinson?
PN158
MR TOMLINSON: No, Commissioner.
PN159
THE COMMISSIONER: What is the name of the certified agreement in relation to this matter? It's the G and S Engineering Services and G and S Electrical Site Maintenance Certified Agreement, those two, 2003?
PN160
MR TOMLINSON: That's correct, Commissioner, yes.
PN161
THE COMMISSIONER: All right. Ms Ellen?
PN162
MS ELLEN: Thank you, Commissioner. Just firstly I would like to address the submissions made by Mr Tomlinson this afternoon concerning non-compliance with the dispute resolution procedure in Clause 19 of the agreement. We would contend that the employees on site have tried to consult and discuss with the employer with respect to their concerns relating to the camp issues, particularly concerning the toilets and showers and washing machines and now fleas.
PN163
So we say that, you know, these issues have been raised through the ranks of the company from tool-box meetings to the site management and that these attempts to resolve this dispute are actually in accordance with the dispute resolution procedure and the company are the ones that have, indeed, failed to adequately comply with the dispute resolution procedure in this case. Commissioner, the company recognises and is fully aware of what we would say are the pitiful conditions that these workers are having to live in at the moment. We say that they have known about these matters for some time.
PN164
I do take on board that the flea issue did arise yesterday, however, there are a number of other issues that have been raised for the last month and have not been adequately dealt with. My instructions are that these kind of issues are ongoing issues at every shut-down and each time workers are told that it will be fixed next time and it never is. We say that in these circumstances that the industrial action was justified and that the employees had no real choice but to push the point this way in order to get their grievances resolved.
PN165
In respect of the draft order provided by Mr Tomlinson we do have a number of comments. Certainly the union does ask the Commission not to use its discretion to issue orders today and the union - my union, at least, and I'm sure that Ms Rogers will support these submissions - my union is keen to get these issues resolved as soon as possible and believe that orders is probably not the best way to do that. In the alternative, Commissioner, if you do use your discretion to put orders on the unions and workers today we say that the period requested is excessive given that there's no history of industrial disputation and given the circumstances - well, we would say the dire circumstances of the living conditions.
PN166
We refer you to point 3 of clause 3 of the draft order, Commissioner, and would say that any order - well, we respectfully say that any order should be limited to industrial action with respect to the camp conditions. You have also brought up the issue of service, Commissioner, and we certainly would say that as it stands at the moment in this draft order that that service would be inadequate and that each employee would have to be individually contacted for them to be - well, for them to be able to - well, for those orders to be properly communicated to them.
PN167
Commissioner, I don't have anything else to say concerning this matter. I do ask Mr Lowth, though, if he does have anything to add to add it now. Cain, do you have anything else to say?
PN168
MR LOWTH: Yes, I have. Just that whilst we've put a lot of weight on the camp issues which are claimed to be outside of ..... for various reasons some of those work issue ones, though, things like not enough crib huts, air conditioners, you know, fridges that only just started working a couple of days ago - this is four weeks into a job - these are all points that have been brought up day after day and I can see where the blokes are really coming from out of a sense of frustration. They have been there for four weeks and didn't have enough fridges or fridge room, enough crib huts or air conditioned crib huts to come in and blow after they have been in the sun, you know, 35 - 37 degrees.
PN169
There's the other issue that - to give you an idea of their day, they do a 12 hour day plus 45 minutes each way of unpaid travel. Then they come back to this camp and they have a shuttle bus to go approximately four kilometres to another camp to eat. They wait for the shuttle bus there when they finish. They are looking at an hour before shift, an hour after shift, a 12 hour shift and 45 minutes each way of unpaid travel.
PN170
THE COMMISSIONER: But, Mr Lowth, was that situation - were the employees when they signed up for this particular work were they aware of that camp set-up?
PN171
MR LOWTH: They would have been aware of the camp - the camp set-up.
PN172
THE COMMISSIONER: That the mess site was at a different location?
PN173
MR LOWTH: The mess has to be at a different location because the camp is 200 metres from the dump.
PN174
THE COMMISSIONER: Right. So it's nothing new to them that that is where the mess would have been situated when they took on this particular job?
PN175
MR LOWTH: Quite the opposite, it would be new to them and it's particular to that camp.
PN176
THE COMMISSIONER: No, but - but they were aware of the way that the configuration was - - -
PN177
MR LOWTH: Sure.
PN178
THE COMMISSIONER: - - - when they took on - I'm not saying that's the norm, but they were aware that that was the configuration?
PN179
MR LOWTH: They would have been aware of that.
PN180
THE COMMISSIONER: All right. Anything else? I'm not suggesting they are accepting of that, but they were aware of it.
PN181
MR LOWTH: They were aware of it but when you have a situation like that, Commissioner, and you've got all these other added outside influences that could be fixed - I mean, all these things come bubbling to the point and I did go there this morning expecting to get a list of grievances and perhaps they would wander back. But the conditions that they are under both in the camp and at work was obviously too much, that it wouldn't have mattered who was there telling them to do what.
PN182
THE COMMISSIONER: The ones - I mean, Mr Lowth, the situation with where the mess tent is - or mess site is obviously not one that can be fixed for the duration of this project. Would that be fair to say?
PN183
MR LOWTH: That would be fair to say.
PN184
THE COMMISSIONER: All right. But some of the others in relation to the cleanliness of the facilities, the fumigation for the fleas, no one has mentioned the pie warmers, but the air-conditioning and the fridges, etcetera, those sorts of things, what time-frame do you think that they would take to progress those matters?
PN185
MR LOWTH: I think that - excuse me. I think that was the hope, but what came out this morning was they thought that all those problems could be rectified within the time frame of a 6 pm resumption on Sunday. They didn't believe it could be done overnight. And they thought that it might take the Friday, Saturday and Sunday and today, to rectify. The list of problems there that has been submitted are the ones that they deem important. And they understand there are other issues, and that was acknowledged by Mr Crowe. They are to work through those ones, but these ones here are the ones that are confronting them the most.
PN186
THE COMMISSIONER: All right. Anything else, Ms Ellen?
PN187
MS ELLEN: No, Commissioner.
PN188
THE COMMISSIONER: All right. Ms Rogers?
PN189
MS ROGERS: Thank you, Commissioner. Commissioner, we support the submissions of the AMWU, and in particular we would submit that the disputes procedure has been followed inasmuch as the employees could do so on site. However, the evidence that was given by Mr Crowe was that he had been advised that action wasn't expected to be taken. So my submission would be that the fact that industrial action has been taken is indicative of the frustration felt by these employees at the lack of progress.
PN190
THE COMMISSIONER: Do you have that clause of the disputes procedure there, Ms Rogers?
PN191
MS ROGERS: Yes, I do.
PN192
THE COMMISSIONER: Thank you. Could I just - the reason I query it is because I just wanted to ensure that there was the ability of reference of the matter to the Commission in terms of a dispute in relation to this particular matter. Which would have been an option open to the employees.
PN193
MS ROGERS: Yes, Commissioner, I would agree with that. But the Commission as it is currently constituted, would be aware that sometimes employees feel the need to demonstrate their frustration in a slightly more I guess emotional way. And the fact that they have walked out this morning, against the expectation of the organiser, I would suggest is indicative of the level of anger and frustration.
PN194
THE COMMISSIONER: The difficulty for the Commission obviously then is that the employer seeks to demonstrate their response by a 127 application obviously as well.
PN195
MS ROGERS: Absolutely. But, Commissioner, I think - I mean one of the things that has always been an issue in coming to the Commission is that you should be coming to the Commission with clean hands. The employer has an obligation under the same agreement, to provide a standard of accommodation to the employees. And you have got the agreement there, I think it is around about clause 13, and it is spelled out in fairly broad terms.
PN196
But it is clear that the expectation of the parties is that the accommodation that is provided to the employees will be sufficient to allow them to have some quality of life while at the camp. Now, Mr Crowe in his evidence actually said that there has been troubles at this camp since the camp opened 12 months ago. His employees only went on site in the last month or six weeks, is my recollection of the evidence. Presumably that gave the company some capacity to negotiate with the camp provider prior to going on site, to ensure that there is some quality accommodation.
PN197
I mean, we have had evidence here today that says there are eight washing machines available to 150 employees. I have not been on site, but my guess is that most of those people are going to require to clean their clothes every day when they come home. And quite frankly, with that sort of limitation it just seems to be extraordinary that they could be expected to behave like that. So I think there - I mean, I understand that the company is saying, "We don't run the camp, we can't control these things", but I also think that the company has a responsibility when they negotiate a contract to go in and to do a shut down to ensure that the quality of the accommodation is sufficient, prior to them going on site.
PN198
And some of these issues are issues that as Mr Crowe has said, have been around for 12 months. So it is fine for the employer to come in here today and say, "They're all very bad employees and they've walked off the site". And we would acknowledge that, you know, that is not always the best way of dealing with things. But, I think the employer has to also accept some responsibility here in terms of providing quality accommodation.
PN199
I mean, Mr Lowth made the comment previously, they are working 12 hour shifts. And in addition to the 12 hour shifts, they are expected to travel an extraordinary amount of distance. 12 hour shifts are tiring and stressful enough without having the added complication of poor accommodation. Those people are entitled to be able to finish work, to go home, to be able to sit in an environment that is going to be comfortable - free of fleas would be very good I think, to be able to take care of their own needs, in terms of their cleanliness, and to allow them to relax and recover and return to work the next day.
PN200
They are not unusual expectations for an employee to have. And yet, the company seems to have been happy to take this contract without ensuring that the quality of the accommodation is available to the employees. But I don't actually want to labour that point too much. But I do think there are responsibilities for the company here.
PN201
Specifically in relation to the order, our primary submission would be like the AMWU, we don't believe orders should be issued because we believe that the company has some responsibilities that they haven't actually fulfilled. However, should the Commission not be persuaded by that submission, we would say that the order - similar to the AMWU, we say the order should be limited to industrial action in relation to camp conditions. And I think there are numbers of cases that support that submission.
PN202
In relation to service, Commissioner, if I could just say it would be extraordinarily difficult for us as an organisation to get the information out to our members. Our organiser for that area is currently not available. He is interstate and he won't be back in Mackay until next week. And I think Mr Tomlinson had indicated and Mr Crowe had indicated that the company were prepared to take some responsibility in terms of ensuring the service, or the dissemination of that information to members. And we would definitely seek that the order be amended to put some responsibility on the employer in that regard.
PN203
The final issue is the duration of the orders. Commissioner, we have heard that the employees have taken industrial action until Sunday afternoon, on the basis that that is what they believe is reasonable to allow the company to resolve their issues. I think that was a submission made by Mr Louth just prior to my speaking. Given that the employees are expected to be back at work on - expected to meet on Sunday and to have further discussions about this matter, we would believe that the order should be limited to midnight Sunday night. Because by then it is going to be absolutely clear where we are up to in terms of having these issues resolved and having the employees return to work. I think that is all I need to address at this point, may it please the Commission.
PN204
THE COMMISSIONER: All right, thank you, Ms Rogers. Anything further, Mr Tomlinson?
PN205
MR TOMLINSON: Commissioner, just very briefly. Yes, I think in relation to the service of orders, Commissioner, we would seek that if the Commission was to - was minded to issue orders, that that would be amended in the sense obligating the company to make telephone contact with each of its employees, and ensuring that each employee receive a copy of the order in due course.
PN206
Commissioner, just briefly and I made this point in my initial submission, and I just wanted to emphasise it in response to the submissions of the unions. The issue of the disputes procedure is such that there is a point in relation to having this matter - any matters in dispute referred to the Industrial Commission. And it deals with it, and it says amongst other things that:
PN207
The negotiation process is exhausted without dispute being resolved, the parties will jointly or individually refer the matter to the Commission for assistance in resolving the dispute.
PN208
So, Commissioner, the company believes it has attempted to resolve these issues. But if the employees or the unions weren't satisfied with the way the company was dealing with the matters, it was open to them to bring those matters before the Commission.
PN209
THE COMMISSIONER: What do you say about the employer's obligations under clause 13 to provide, as Ms Rogers and Ms Ellen have pointed out, the appropriate level of accommodation?
PN210
MR TOMLINSON: Yes, Commissioner, the company is obviously mindful of its obligations under that clause, and we submit that they are attempting to resolve any outstanding - any issues in relation to the accommodation and that it may be inadequate. Once again, Commissioner, I think we come back to that point that the company obviously has obligations under that clause, and it is obviously mindful of those obligations and has to fulfil them. But if the company or the unions, I should say, or the employees felt that the company wasn't fulfilling that clause, once again, they could come to the Commission and make that point.
PN211
THE COMMISSIONER: All right, anything further at this stage?
PN212
MR TOMLINSON: No, Commissioner.
PN213
THE COMMISSIONER: I will adjourn for a few moments and consider the application, thank you.
SHORT ADJOURNMENT [4.15pm]
RESUMED
[4.47pm]
PN214
THE COMMISSIONER: I place the following comments on transcript in relation to this matter. This matter relates to an application by G & S Engineering, the employer, for an order pursuant to Section 127 of the Workplace Relations Act 1996 to stop industrial action from occurring at the Goonyella Riverside Coal Mine in relation to work covered by the G & S Engineering Services, and G & S Services Electrical Site CEPU Maintenance Agreement 2003.
PN215
The orders sought by the employer proposes to bind the Automotive, Food, Metals - also known as the AMWU and the CEPU union also engaged in work pursuant to the agreements. In relation to the legislative context of Section 127 of the Act, it provides that if it appears to the Commission that industrial action is happening, or is threatened, impending, or probable, in relation to work that is regulated by an award, or a certified agreement, in summary, the Commission may, by order, give directions that industrial action stop or not occur. The Commission may make such an order of its own motion or on the application of (a), a party to the industrial dispute, if any, or a person who is directly affected, or is likely to be directly affected by the industrial action.
PN216
The employer in the current circumstances meets these definitions. The Commission must hear and determine an application for an order under this section as quickly as practicable, and under sub-provision (5), a person or organisation to whom an order under subsection (1) is expressed to apply must comply with the order.
PN217
In relation to the background of this matter, the industrial action to which this section 127 application relates was precipitated by a breakdown in discussions in relation to the nature of accommodation and facilities provided at the on-site work camp. The evidence provided in relation to this matter indicates that some discussions and progress had been made in relation to the list of items expressed in exhibit 1. The employer and employees in the current circumstances have obligations in the certified agreement. The employer has an obligation pursuant to clause 13 to provide appropriate accommodation; similarly, the employees and employer have an obligation in relation to clause 19 of the disputes procedure.
PN218
The issuing of orders is a serious step. The essential jurisdictional pre-requisites have been met with respect to the industrial action in this matter, as is occurring in relation to the evidence as provided; and, as is defined by section 4, the definition has been met. Employees have withdrawn their labour and the work is also covered by the certified agreement as set out. The employer is impacted in the discharge of this project, and in the service to their client.
PN219
I do not downgrade the employees frustrations and expectations with respect to the requirements for suitable facilities and accommodation on site. However, this is a matter that could have been appropriately dealt with in accordance with the disputes procedure and the appropriate notifying of an urgent dispute in relation to this matter to the Commission.
PN220
To take action of this nature is illegitimate and an unnecessary course at this site. I have considered that there is not a history of industrial action at this site, but that also it is the start of a new project. I have considered the evidence and circumstances in this matter, and I intend to exercise my discretion to issue orders. However, I have amended those orders in the following nature.
PN221
I have confined the industrial action as prohibited to the nature of the dispute in relation to this matter; that is action associated with the accommodation and facilities at the on-site camp, and I have reduced the length of the order sought to one week, that it would finish next Thursday. In addition to that, I direct the parties to report back to the Commission at a conference next Friday at a time which will be notified by my associate for a full update to the Commission report-back in relation to the action taken by the employer to finalise the outstanding issues so that there is provision of appropriate accommodation and facilities to the appropriate standard on site.
PN222
Accordingly, I would issue the orders in relation to this matter. I have issued the orders in terms of the service as queried of Mr Tomlinson, that the order be served and faxed to the two unions, and, in addition, to the employer as undertaken, will provide for the appropriate service by the provision of the order to each of the employees by contacting those that are to resume work, and the provision as soon as possible to disseminate a copy of the order to each employee. Accordingly, I adjourn the matter.
ADJOURNED INDEFINITELY [4.55pm]
INDEX
LIST OF WITNESSES, EXHIBITS AND MFIs |
MICHAEL GERARD CROWE, AFFIRMED PN17
EXAMINATION-IN-CHIEF BY MR TOMLINSON PN17
CROSS-EXAMINATION BY MS ELLEN PN34
EXHIBIT #1 LETTER FROM MR C LOWTH PN43
CROSS-EXAMINATION BY MS ROGERS PN62
RE-EXAMINATION BY MR TOMLINSON PN68
WITNESS WITHDREW PN93
WILLIAM CAIN LOWTH, AFFIRMED PN97
EXAMINATION-IN-CHIEF BY MS ELLEN PN97
CROSS-EXAMINATION BY MR TOMLINSON PN110
RE-EXAMINATION BY MS ELLEN PN119
WITNESS WITHDREW PN122
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