C2004/359, Transcript of Proceedings [2004] AIRCTrans 4692 (3 December 2004)

AUSCRIPT AUSTRALASIA PTY LTD
ABN 72 110 028 825

Level 3, 105 St George's Tce, PERTH WA 6000
Tel:[phone]

TRANSCRIPT OF PROCEEDINGS

O/N 1081

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

DEPUTY PRESIDENT McCARTHY

C2004/359

APPLICATION FOR AN ORDER TO STOP
OR PREVENT INDUSTRIAL ACTION

Application under section 127(2) of the Act
by Barclay Mowlem Construction Limited for
an order to stop or prevent industrial action
at the Dampier Bulk Liquids Berth Project

PERTH

3.40 PM, WEDNESDAY, 24 NOVEMBER 2004

PN1

MS J. AUERBACH: I appear on behalf of the applicant and seek leave to appear.

PN2

THE DEPUTY PRESIDENT: Yes. Leave is granted, Ms Auerbach. I believe Mr Saunders is in the vicinity, is he - - -

PN3

MS AUERBACH: He is, sir. I believe he assumed that we would be getting notice of the Commission entering and he just popped out to make a quick phone call.

PN4

THE DEPUTY PRESIDENT: Perhaps my associate can try and locate him.

PN5

MS AUERBACH: I think he will just be next door actually, in that room.

PN6

THE DEPUTY PRESIDENT: We will just go off record for a moment.

OFF THE RECORD [3.41pm]

RESUMED [3.44pm]

PN7

THE DEPUTY PRESIDENT: Yes. Mr Saunders, you are appearing for the AMWU?

PN8

MR C. SAUNDERS: That is correct.

PN9

THE DEPUTY PRESIDENT: As elusive as ever.

PN10

MR SAUNDERS: Try to, sir.

PN11

THE DEPUTY PRESIDENT: Yes, thank you. Ms Auerbach?

PN12

MS AUERBACH: Thank you, Deputy President. This is an application under section 127 and the application was brought on the basis that at the time of the filing of the application there was clearly industrial action in relation to work that is governed by the EBA, the Barclay Mowlem Construction Limited Damper Bulk Liquids Berth Project Metal Trades Certified Agreement, that is AG2004/7373. The workers have now returned to work as of this morning but the applicant's point is this. The certified agreement was only just certified on 18 November, the ink has barely dried on the certified agreement.

PN13

It provides very clearly for a dispute resolution procedure in clause 5.1 and it provides clearly that no industrial action is to be taken whilst any discussions are being held between the parties. Now, the issues or the history to this recent walk-out was that on 22 November only four days after the agreement was certified, Mr Lovett from the AMWU raised some of the issues outlined in the application, that is, issues numbered 1 to 3, which are all we say very trivial. One issue or the first issue was clarification as to what CCMP on the pay slips meant.

PN14

Okay, so we will go and get clarification as to what that exactly means, what it stands for. Another issue being that the pay slips, not the pays but the pay slips didn't always arrive on a Thursday and sometimes arrived on a Friday but the pays were already in the bank and an issue that the hours were changed even though that happened some months ago even before the certified agreement was certified. On the very next day and the employer taking steps to answer the queries, getting back to the payroll officer to get some clarification as to what CCMP stands for, the next day the same discussions are being held and another issue is being raised as to the "PIP" being - or the Project Incentive Payment being pro rata-ed per hour, that is, a higher payment being sought, then $150 per week which clearly states in the EBA. That was added to it and advice was given to the employer that the site would be walking off for 24 hours.

PN15

Now we say it is clearly in breach of clause 5.1 of the EBA in that the discussions were not exhausted. The ink hasn't even dried on the EBA and we are dealing with issues which are very, very trivial and indeed I answered very quickly but not even a day is provided to give that answer. The applicants or the employees have now returned to work but what the applicant says, it is very easy to yank the chain just for a very brief period of time, then return to work, by the time that we come here before the Commission we essentially will be asked the question: Well, what do you want from me? What do we want from the Commission, the workers have returned. We say that - - -

PN16

THE DEPUTY PRESIDENT: But that is a reasonable question to ask, isn't it?

PN17

MS AUERBACH: It is a reasonable question to ask.

PN18

THE DEPUTY PRESIDENT: You are coming here, what do you want?

PN19

MS AUERBACH: Exactly and it is a reasonable question to ask. Of course, it puts us in the position where they have now returned to work and yet we are stuck with a whole range of very trivial issues, we are stuck with the fact that only less than a week after the EBA has been certified, the dispute resolution procedure is not being followed. So, of course, it raises the question: Are they not going to walk again tomorrow because the PIP issue, Project Incentive Payment issue, has not and will not be resolved. So where does that leave us?

PN20

We say that this is such a volatile beast, if over such trivial issues we have a complete walk-out but we do seek an order, we should be granted an order that at least for a specified period of time this kind of action does not occur and re-occur over issues which are not issues and which can be very easily dealt with through the procedure that is provided for in the EBA which we just so recently certified in this very Commission.

PN21

THE DEPUTY PRESIDENT: Are you saying there is a probability of further industrial action, are you, Ms Auerbach?

PN22

MS AUERBACH: It is questionable, isn't it?

PN23

THE DEPUTY PRESIDENT: Well, in order for there to be jurisdiction to issue an order, it needs to be established there is a probability. What I'm asking, are you submitting that there is a probability of - - -

PN24

MS AUERBACH: Well, we submit that there certainly is a probability that industrial action will occur again if this PIP issue can't be sorted out and it cannot be sorted out, subject to what my friend has to say on that issue.

PN25

THE DEPUTY PRESIDENT: The agreement is an LJ agreement, is it not, section 170LJ agreement?

PN26

MS AUERBACH: I believe so, yes.

PN27

THE DEPUTY PRESIDENT: How many employees are covered by the agreement? Are you aware?

PN28

MS AUERBACH: This agreement, no, I'm not aware how many employees are covered by it.

PN29

THE DEPUTY PRESIDENT: Do you know, Mr Saunders, approximately?

PN30

MR SAUNDERS: Yes. I understand there would be - there is two agreements, there is one with the CFMEU to cover crane drivers and painters. There is - this particular agreement covers the rest of the workforce and the last time I was up there I would say approximately 60 workers.

PN31

THE DEPUTY PRESIDENT: It is an LJ?

PN32

MR SAUNDERS: LJ.

PN33

THE DEPUTY PRESIDENT: So they voted on it?

PN34

MR SAUNDERS: Sorry? Yes, they voted on it, yes.

PN35

THE DEPUTY PRESIDENT: They voted on it and know what is in it?

PN36

MR SAUNDERS: Yes.

PN37

THE DEPUTY PRESIDENT: They were provided with a copy of it?

PN38

MR SAUNDERS: Yes.

PN39

THE DEPUTY PRESIDENT: They had it for 14 days?

PN40

MR SAUNDERS: Yes.

PN41

THE DEPUTY PRESIDENT: And it was explained to them?

PN42

MR SAUNDERS: It has been explained to the delegate plus the - our official up there exactly what they've got. I wonder if I - - -

PN43

THE DEPUTY PRESIDENT: If you would make a few submissions or comments?

PN44

MR SAUNDERS: Yes. Sir, our submission would be that there is no pending action probable over these issues. As I said, you are right, it is an LJ agreement. They voted on the conditions prior to, but there is some evidence I would say, it is always a two-way street. These peripheral issues, 1 to 3 dot points in the form 29 application which were raised on the Monday, weren't resolved but another issue was added of some substantive nature in the changing of the Productivity Incentive Payment on the Tuesday, which then led to a walk-out for the rest of the day or a strike for the rest of the day.

PN45

To this date the first three issues, which my friend has said that are not substantive issues, still haven't been answered and when the organiser contacted the company this morning, Mr Tim Larkin, he was too busy to respond to those issues. The third issue as far as the union is concerned is a dead issue. The incentive pay which in recollection I haven't got the agreement in front of me, rewards the workers at $150 per week is based on the ordinary hours and on that basis that is how it applies. There is no argument as far as issue is concerned and the workers have still got the documentation. They voted on the documentation and that is the way it is going to stay. So there is no claim as far as we are concerned on that issue.

PN46

THE DEPUTY PRESIDENT: I heard that once before from one of your colleagues on another project and when there was a meeting on the site I'm told that all hell broke loose?

PN47

MR SAUNDERS: I'm not sure of what colleague you are talking about but I can assure you, sir, that that is our position.

PN48

THE DEPUTY PRESIDENT: Yes.

PN49

MR SAUNDERS: Whether workers accept our advice is a different story. But the advice has been delivered fairly sternly to the official plus the delegate on the job, if they didn't like it they had a chance to change that some short period of time ago. But on that basis, I'm concerned that there is underlying factors there, just having a look at the issues themselves which I haven't been able to extract what they may be other than - - -

PN50

THE DEPUTY PRESIDENT: You usually don't sign these agreements until they have been approved, do you?

PN51

MR SAUNDERS: We don't sign them until they are approved by the worker.

PN52

THE DEPUTY PRESIDENT: You make the agreement, then it goes out to the vote - - -

PN53

MR SAUNDERS: And then we sign it.

PN54

THE DEPUTY PRESIDENT: And your signature is confirmation that the vote approved it. That is usually the way it works, isn't it?

PN55

MR SAUNDERS: In fact, it is worse than that, sir. We take it to our executive who then authorises whether we can sign it or not. So it is "dot the I's cross the T's" situation.

PN56

THE DEPUTY PRESIDENT: You wouldn't sign anything that hadn't been voted on and approved and got the full support of the people who would be covered by it.

PN57

MR SAUNDERS: But I think it is two issues. I believe there must some underlying feature or factor in this and when the employer three days later still hasn't responded to those trivial matters in dot points 1, 2 and 3, and they are not my words, I think they are my friend's words, I would suggest that they may have to look at how they conduct themselves at the same time. I'm not saying that will cause a dispute. I'm just saying that it shows the nature of the beast that maybe the workers are dealing with and maybe that is something my friend can take back to their client. But going back to the Act, we say that there is no threatened or impending industrial action. On that basis we say that the - on these issues and on that basis the 127 shouldn't be granted.

PN58

THE DEPUTY PRESIDENT: It should be granted?

PN59

MR SAUNDERS: Should not be granted. Sorry.

PN60

THE DEPUTY PRESIDENT: I misheard you. Not be granted. Ms Auerbach, do you want to respond to any of that?

PN61

MS AUERBACH: Thank you, sir. In relation to the allegation that the issue is trivial, issues have not been explained, my instructions, Deputy President, that the workers returned this morning as though nothing had happened and no request has been made for it to be explained. Three of the issues can be explained very easily and will be as soon as a request is made for that to occur. The fourth one will remain an issue but I'm hearing today from the union for the first time that it is not, in the union's eyes, an issue. Yet that seems to have been the one matter that may well have caused the walk-out at the time.

PN62

What the applicant is saying, sir, is that all we are asking for is for the dispute resolution procedure to be followed in these matters and not for the workforce to be walking off, or 60 per cent of the workforce to be walking off the site just because there are some trivial issues that are being raised. I haven't had anything today or haven't heard anything today that gives us any assurance from the union either in terms of a preparedness even to give an undertaking that the dispute resolution procedure will be followed, nothing like that. It simply says: Well, they're back at work, they are trivial issues, we don't see that there is any probable action, further probable action that is going to occur. Well, I didn't think that these issues that are here before this Commission today should have caused a walk-out. So what is there to say, seeing that they are still alive and my friend says they are still live issues, to say that they are not going to walk out again?

PN63

THE DEPUTY PRESIDENT: Okay. Mr Saunders, what steps have taken to ensure the dispute resolution procedure will be followed in future?

PN64

MR SAUNDERS: Sir, I think there is a couple of issues. One is, you are right, it is an LJ agreement and the workers had the document for 14 days prior to voting on it. That in itself gave them ownership of it. Secondly, our position is that once we've signed the document that is our position that we will abide by that document unless there is unforeseen or exceptional circumstances. And that doesn't mean we have a strike over it, we may bring it here to raise those issues. So on that basis alone, that I think it is our commitment once we've signed off on the document.

PN65

THE DEPUTY PRESIDENT: What I'm asking is, has there been any steps, further steps taken since this industrial action to shoot home to the employees their obligation to follow the dispute resolution procedure?

PN66

MR SAUNDERS: Other than my conversation with the local official up there and the shop steward, no. I wouldn't expect that the official will carry that when he goes - carry that message back when he goes - - -

PN67

THE DEPUTY PRESIDENT: Can you ensure that - - -

PN68

MR SAUNDERS: I can assure that. Can I say one thing? The official himself has contacted Tim Larkin, who is - I'm not sure of his title, but fairly high up in Barclay Mowlem, contacted - - -

PN69

THE DEPUTY PRESIDENT: Regional Manager WA, Barclay Mowlem Construction Limited, I think.

PN70

MR SAUNDERS: Well, he is fairly high up. And we are still waiting for the return call and that was my advice two minutes before - that is why I was a bit late coming in, just to check whether the issues had been, I don't want to say settled - or explained or whatever it may be. And I just raise that as a concern. The other side, you seek for the union to abide by the disputes procedure and I haven't had a problem with that, as I said, we've signed off on it. But secondly, there is an obligation on the employer even though he might be a bit narked about a stoppage, there is still an obligation on the employer also to respond to whether they - and they are not my terms, "trivial issues".

PN71

They may be major issues to the employee but there is a responsibility by the employer even if the answer is no, is to respond to those issues. It is not a matter of just ignoring the union official. So I just raise that for what it is worth. If there is going to be a working relationship between the employees and the employer, the employers also have obligations under the disputes procedure to settle or at least answer issues that have been raised by the workforce.

PN72

THE DEPUTY PRESIDENT: Yes, thank you, Mr Saunders. Ms Auerbach, I don't intend issuing an order at the present time. I'm not sufficiently satisfied that there is and there doesn't appear to me to be sufficiently satisfied that there is impending or probable industrial action although you've identified a concern that there is a possibility of further industrial action. Because of that concern and I do accept that there may be a possibility of industrial action, I won't dismiss the application, I will adjourn these proceedings and await your advice as to any further hearings or actions that you wish the Commission to take. This matter is adjourned on that basis.

ADJOURNED INDEFINITELY [4.00pm]