C2004/6758, Transcript of Proceedings [2004] AIRCTrans 4712 (6 December 2004)

AUSCRIPT AUSTRALASIA PTY LTD
ABN 72 110 028 825

Level 4, 179 Queen St MELBOURNE Vic 3000
(GPO Box 1114 MELBOURNE Vic 3001)
Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS


O/N 9182

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER BLAIR

C2004/6758

SIMON ENGINEERING
PTY LIMITED

and

AUTOMOTIVE FOOD,
METALS, ENGINEERING,
PRINTING AND KINDRED
INDUSTRIES UNION

Application under section 127(2) of the
Industrial Relations Act to stop or
prevent industrial action at Blue Scope
Steel's premises at Western Port in
Victoria

MELBOURNE

3.04 PM, THURSDAY, 25 NOVEMBER 2004

PN1

MR R. MARASCO: I appear for the Australian Industry Group and with me is MR P. NOLAN. We act on behalf of our member company Simon Engineering Pty Limited and with us from the company is MR D. HOOPER and MR J. STOREY.

PN2

MS E. WALTERS: I appear for the Australian Workers Union and with me is MR W. WILLIAMSON.

PN3

MS C. CHEW: I appear for the Australian Manufacturing Workers Union.

PN4

THE COMMISSIONER: Thank you, Ms Chew. Yes, Mr Marasco?

PN5

MR MARASCO: Thank you, Commissioner. There are two matters that you have listed, Commissioner, a section 127 application and a section 170MD(6) application. I would propose unless Commissioner you objected, to proceed with the section 127 application by giving you some background to that issue that is in dispute.

PN6

THE COMMISSIONER: The two matters - the reason why I listed them together is I assumed that the two matters are related, are one and the same?

PN7

MR MARASCO: Yes, definitely, they are definitely inter-related.

PN8

THE COMMISSIONER: Right. Thank you.

PN9

MR MARASCO: But Simon Engineering has been contracted to conduct maintenance work during a shut down at Blue Scope Steel's plant in Western Port. The shut down is commencing on Tuesday, 30 November, at 7 o'clock, am. During the period of the shut down there will be two 12-hour shifts operating of Simon Engineering employees of approximately 37 employees per shift and they will do maintenance work at the plant. Specifically they will be replacing four pickling tanks with new hydrochloric acid tanks which is part of Blue Scope Steel's process. It might assist you, Commissioner, if I tender a document to you which is the pickled tank replacement project technical specifications. It is just a single page, we can give you maybe more technical - - -

PN10

THE COMMISSIONER: I am sure that would be a rib tickler.

PN11

MR MARASCO: Yes. Can I give you a minute to read that?

PN12

THE COMMISSIONER: No, no, it is fine, I can actually chew and read and listen at the same time.

PN13

MR MARASCO: Great. Did you have a copy of the enterprise agreement, Commissioner, or could I tender one to you, the Simon - - -

PN14

THE COMMISSIONER: No, I haven't. What have I got. No, I have just got the metals award, thanks, Mr Marasco.

PN15

MR MARASCO: Yes. If I can draw your attention, Commissioner, to paragraph 3 or clause 3, rather, of the enterprise agreement which is on page 2 - - -

PN16

THE COMMISSIONER: Yes.

PN17

MR MARASCO: - - - that states:

PN18

This agreement shall regulate the rates of pay and define the conditions of employment of employees of Simon Engineering Australia Pty limited that work within 10 kilometres of the Hastings Post Office engaged in maintenance, modification, shut-down work in the metal and engineering industries, defined in the metals award but excluding work carried out at Simon Engineering workshop premises.

PN19

So part of the dispute, Commissioner, is whether the enterprise agreement applies to the work in question that is proposed to be carried out at Blue Scope Steel during the shut-down period. It is certainly the position of the company that the enterprise agreement is a valid enterprise agreement, it has been certified by this Commission and doesn't expire until 31 March 2006. For the purposes of the section 127 application we say that the Commission does have jurisdiction in this matter because there is a valid enterprise agreement in place that carries out the work that is proposed to be done by the company.

PN20

There have been previously conciliation proceedings before Commissioner Hingley where the unions argued that the work that Simon Engineering actually propose to do during the shut-down period was not work that came within the scope of the agreement. Again, it is certainly the company's position that quite clearly if you look at the application of the EBA in paragraph 3 which is very broad I note that the parent award is also the metals award which is - I am sure you are familiar with, is very broad as well and would certainly be broad enough to cover the work in question that is pursuant to that technical specification that I tendered just a moment ago. Speaking of that, would you like that to be marked, Commissioner.

PN21

THE COMMISSIONER: Sure. The technical specifications I will mark AIG1.

EXHIBIT #AIG1 TECHNICAL SPECIFICATIONS

PN22

THE COMMISSIONER: Thanks.

PN23

MR MARASCO: So that is sort of the jurisdictional issue in regards to the enterprise agreement that is covering the work. The two unions, the AMWU and AWU, have threatened industrial action by stating they want a new enterprise agreement to cover that specific work done during that shut-down period of Blue Scope Steel and that is the threatened industrial action they have threatened to institute bargaining periods to cover that work. At this stage no bargaining periods have been issued or notices of industrial action have been filed but those threats have been made by both unions that they would be instituting bargaining periods and if necessary taking industrial action in pursuit of an enterprise agreement just to cover that particular part of the work.

PN24

As a result, Commissioner, it is the company's intention to pursue section 127 order against both unions arguing that the EBA is in place, it is valid and does cover the proposed work in question at Blue Scope Steel and therefore it is not open to the unions to initiate new bargaining periods to cover that work because it is already covered by the enterprise agreement. At this stage, Commissioner, unless there is any specific issues that you would like me to address or any questions you have for me I might - I should mention too, sorry, Commissioner, before I tell you that - industrial action did occur on 26 October this year during preparatory work for the shut down and even though the shut down does commence on Tuesday there are some employees of Simon Engineering at Blue Scope Steel at Western Port at the moment doing preliminary work in preparation for that shut down of that maintenance work and unless you have any preliminary questions for me at this stage I would like to give the unions the opportunity to one, concede that the enterprise agreement does apply to the work to be carried out during the shut down period and secondly, to give undertakings that there won't be any industrial action during the period of that shut down.

PN25

THE COMMISSIONER: Okay, thanks, Mr Marasco.

PN26

MR MARASCO: Thank you, Commissioner.

PN27

THE COMMISSIONER: Ms Walters?

PN28

MS WALTERS: If the Commission pleases, in the first instance, the unions would submit that the Commission doesn't have jurisdiction to hear this matter. There is no threatened industrial action, pending or improbable. I might add, in the first instance, that unfortunately Mr Lee, who has a detailed knowledge of this matter, and the site - indeed, he has been the organiser that has negotiated the agreements at that site for the last 15 years - has just arrived in Darwin, I believe, so he is unable to give me very detailed instructions; so I just wanted to flag that in the first instance, Commissioner. So we submit that there is no threatened industrial action and that the Commission does not have the jurisdiction to grant a section 127 order in this matter.

PN29

In relation to Mr Marasco's giving the union the opportunity to concede that the certified agreement that is in place covers the scope of work that will be involved in the upcoming project, clearly, it is the position of the unions that that is not the case and the unions, as Mr Marasco indicated, are open to initiating a bargaining period in accordance with section 170MI of the Workplace Relations Act and, furthermore, should negotiations reach a stage, give notice pursuant to section 170MO of the Workplace Relations Act of its intent to engage in industrial action.

PN30

I would also like to point out that, indeed, if the union wants to suggest it might go down that path, that that is not necessarily - well, in fact, shouldn't be characterised as a threat. What it actually is is a union saying that, We are going to comply with the Workplace Relations Act and exercise legitimate bargaining power that the Act has given us." But I will reiterate that my instructions are that there is no industrial action that is threatened, impending or probable; that both unions - I certainly speak for the AWU - is seeking to negotiate agreement in relation to the upcoming project work.

PN31

I would also refer to the section 99 application made by Simon Engineering and in which, I understand, there were two conferences before Commissioner Hingley in relation to this matter. I understand that there was a recommendation given by Commissioner Hingley that during these negotiations that the union not engage in industrial action - and that has been complied with. Commissioner, I am not sure whether that was actually a recommendation made on transcript but, certainly, my instructions are that the union is complying with that. There has been no industrial action notified.

PN32

I would also put forward that the AWU would seek to move this matter into conference on the basis that I do believe there would be some value in discussing the company's concerns in relation to the upcoming work and also in relation to the section 170MD(6) application.

PN33

THE COMMISSIONER: Ms Walters, did a stoppage occur on the - or did some form of industrial action occur on 26 October 2004?

PN34

MS WALTERS: If it pleases, Commissioner, I will seek some instructions on that. If it pleases the Commission, I have been instructed that there was a short stoppage on 26 October.

PN35

THE COMMISSIONER: Okay.

PN36

MS WALTERS: But I understand that since then there has been a clear attempt by both parties to use the Commission to attempt to conciliate these matters and that no industrial action has been engaged in following that. I might also add, Commissioner, that in relation to the position put by the company that the agreement in place covers the scope of the work to be performed, that in May Mr Martin Van Dyke of Simon Engineering contacted Mr Lee to discuss the upcoming work and question Mr Lee as to whether he believed another agreement would need to be negotiated - and this is certainly something that the union would seek to rely on in the form of evidence before the Commission. Unfortunately, we don't have Mr Lee available to us.

PN37

Mr Van Dyke put that question to Mr Lee and Mr Lee responded in the affirmative that, yes, that is the case. Mr Van Dyke then advised Mr Lee that he will get in touch with Blue Scope to organise a presentation to both Mr Lee and Mr Warren so that both Mr Lee and Mr Warren could gain some understanding as the nature of the work that would be performed during the project, and that Mr Lee has not heard back from Mr Van Dyke since then. Certainly, we would say - and, again, this would be a matter of evidence -that over the 15 years there is a history of agreements being negotiated outside of the base agreement which, I understand, effectively has been rolled over over a number of years where there is work that will be carried out on site that the parties believe falls outside the scope of the work covered by the agreement.

PN38

THE COMMISSIONER: What work would be covered by the agreement? I mean, the application clause in the agreement is reasonably broad. It is fairly broad. I says:

PN39

Engaged in maintenance, modification and shut-down work ...(reads)... Simon Engineering workshop premises.

PN40

So exactly from the union's perspective, what work would that agreement cover if it doesn't cover the work that is proposed to be done at the Blue Scope site in terms of removing the pickling tanks and replacing them with something else? I think you said hydrochloric acid, or something.

PN41

MR MARASCO: I think so, yes.

PN42

THE COMMISSIONER: Yes.

PN43

MS WALTERS: If it pleases the Commission - and I do have limited instructions on this - my understanding is historically that some project work that has occurred, the nature of the work that the employees will be required to perform may be more complex, may require different technical skills than fall within the scope of the agreement in terms of the nature of the work that the agreement intends to cover. That would relate to clauses - - -

PN44

MR MARASCO: 22(e)

PN45

MS WALTERS: 22(e). Thank you, Mr Marasco - and 22. Well, 22 full stop.

PN46

THE COMMISSIONER: There is a shut-down allowance. Is that proposed to be paid?

PN47

MR MARASCO: Yes, definitely.

PN48

THE COMMISSIONER: And fares, travelling allowance, etcetera, confined space, dirt; so the very nature of the work to be carried under the application clause says, or implies that that work is generally of a different nature to work that would be done in the engineering workshop. I mean, maintenance work is always - in some areas, more technical than others; it depends what breaks down and whether there is a preventative maintenance program in place, and things like that; and modification shut-down work is always work that has its little surprises. You know, things happen that do require, particularly trades people, to draw upon their expertise to deal with those little surprises that do happen from time to time. Nothing is straightforward in terms of modification shut-down work. So I am just curious, if all that is in place, why this agreement does not cover it.

PN49

MS WALTERS: Commissioner, my instructions are that it doesn't and it hasn't in the past where project work is carried out of the nature that will be occurring quite shortly and that there was, in fact, borderline agreement between Mr Van Dyke and Mr Lee that it would have to consider the nature of the work. The very suggestion that Blue Scope should present to Mr Lee and Mr Warren a presentation about the nature of work suggests that, in the first instance, the parties were considering whether or not that work would fall within the scope of this agreement.

PN50

My instructions are limited and I am not able to go through the nature of the work in relation to the acid tanks but we would strongly put - and have examples of, comparable examples in the past where that has been considered in relation to project work that it falls outside the scope of the base agreement. We would seek to put evidence before the Commission in relation to those circumstances.

PN51

THE COMMISSIONER: What do the unions propose would be different between this agreement, the current one, and one that you say might be more specific to the work that is subject to the technical specifications outlined in AIG1? Where would the proposed agreement be different?

PN52

MS WALTERS: If the Commission pleases, I don't have those instructions.

PN53

THE COMMISSIONER: Let me take a guess. Rates of pay.

PN54

MS WALTERS: If it pleases the Commission, I don't have those instructions. Well, I am certainly not at liberty to say whether that is correct or not, Commissioner.

PN55

THE COMMISSIONER: Right. I would buy you a Tattslotto ticket if it wasn't.

PN56

MS WALTERS: Commissioner, having said all of that, we would also seek to have the matter adjourned from today to enable the unions to - well, certainly, the AWU, and I understand it is also the position of the AMWU - to get instructions in relation to this matter. As we have already seen, there is some technical analysis required of the - which goes to the question as to whether the agreement covers the scope of this work and certainly is the key point in relation to the jurisdiction of the Commission to grant these orders.

PN57

THE COMMISSIONER: If I don't have jurisdiction under 127, does it then follow that the Commission has jurisdiction under its general powers of section 111?

PN58

MS WALTERS: In relation to - - -

PN59

THE COMMISSIONER: Anything.

PN60

MS WALTERS: If it pleases the Commission, I certainly wouldn't like to suggest that pursuant to section 111, that we would seek to curtail those powers.

PN61

THE COMMISSIONER: That would be nice of you. Thank you.

PN62

MS WALTERS: But, Commissioner, also at this point my instructions are - and I certainly won't speak for my colleague here - that I have instructions that we have prepared and, in fact, can go on record, given the undertaking that we will not engage in any industrial action that does not comply with the Workplace Relations Act.

PN63

THE COMMISSIONER: So work is supposed to start Monday, is that right, the 30th?

PN64

MR MARASCO: Tuesday, Commissioner.

PN65

THE COMMISSIONER: Tuesday. And how long is the work scheduled to go for?

PN66

MR MARASCO: Until 17 December, continuously.

PN67

THE COMMISSIONER: Two 12-hours shifts.

PN68

MR MARASCO: Two 12-hours shifts.

PN69

THE COMMISSIONER: Yes, and that is over the entire 17, 18 days?

PN70

MR MARASCO: Yes.

PN71

MS WALTERS: If it pleases the Commission, also in relation to the preliminary points that we have made as to jurisdiction, we would also seek in relation to the Commission's discretion in this matter that the parties have been negotiating; they have been before the Commission in a section 99 and that, in those circumstances, it would be unduly restrictive on the union and certainly restrict any rights that a worker may have pursuant to the Workplace Relations Act in these periods in relation to the negotiation of an agreement.

PN72

MS CHEW: Commissioner, can I say something?

PN73

THE COMMISSIONER: If you have to, Ms Chew. If you have to, you have to.

PN74

MS CHEW: Thank you, Commissioner. I just wanted to put it on record. I would like to put it on record that I was happily attending a conference and then I received an unfortunate phone call from Mr Addison. Now, Mr Addison was schedule to attend today and he was caught up on an interlocutory injunction at the Federal Court; so that is why I am in his place. Now, I happened to overhear a conversation between Mr Addison and Mr Warren - Mr Warren gave me a lift up here earlier in the morning for something else - and Mr Addison put this question to Mr Warren: was there any industrial action been taken.

PN75

Mr Warren confirmed that there wasn't, and he said, "Did you make any undertakings to the Commission with Commissioner Hingley," and Mr Warren said, "Look, we agreed that there would be no industrial action," he would be happy - and I'm instructed to give the undertaking to the Commission today that there will be no unprotected industrial action. In relation to the MD(6), I haven't had an opportunity to view any of the documents, nor be familiar with the processes or procedures involved or even the issues. Mr Addison has said that it is unfortunate he can't attend today.

PN76

He would ask if the Commission is so disposed the MD(6) until tomorrow or Monday so that he has the opportunity to come here and put the case before you, that does not prejudice the company in any way. As you know, it is scheduled to start on Tuesday. That gives ample time for the AWU and the AMWU to seek instructions and to actually present a case to you. In relation to the 126, we say it is wholly unfounded and there is no jurisdiction; and given that both unions are happy to make the undertaking on transcript that there will no unprotected industrial action, on that basis we submit that the 127 application should be dropped.

PN77

So in relation to the MD(6), I am instructed that Mr Addison should hopefully be available tomorrow - that all depends on what happens this afternoon in the Federal Court - but he has certainly indicated his willingness and he was certainly prepared to put submissions in relation to the MD(6) this afternoon. So he is prepared to do that either tomorrow, if you are happy to adjourn it till tomorrow, or Monday if tomorrow does not suit you. If the Commission pleases.

PN78

THE COMMISSIONER: Thanks, Ms Chew. Do the parties wish to go into conference?

PN79

MR MARASCO: We are happy to go into conference. I think there is just a little bit more background, if we can just tell you, Commissioner. As the parties have indicated, there have been conciliation proceedings before Commissioner Hingley. I wasn't involved in those proceedings. Mr Nolan was, and Mr Nolan will address you shortly on a couple of important matters. Under the enterprise agreement under the disputes settlement procedure, there is no power to the Commission to arbitrate.

PN80

THE COMMISSIONER: No.

PN81

MR MARASCO: It is limited to conciliation. What the company suggested to Commissioner Hingley and the unions that was Commissioner Hingley go to Westernport to actually view the work in question and then make a determination whether or not the EBA applied, and the unions declined to follow that course of action and said, "No, no, we want to have a new enterprise agreement. I might let Mr Nolan maybe address you on a couple of other important issues just to the background which he has more of.

PN82

THE COMMISSIONER: Mr Nolan?

PN83

MR NOLAN: Thanks, Commissioner. All I wished to add was that it was made quite clear in the conciliation proceedings before Commissioner Hingley on Tuesday at the end of those proceedings that both unions intended to initiate bargaining periods and then access what they believed were their rights under the Workplace Relations Act in relation to protected industrial action. Because they have declined to accept our proposition about Commissioner Hingley looking at the work, that is what led us to lodging the section 170MD(6) application because, clearly, there is some uncertainty expressed by the unions as opposed to the company's view as to the coverage of this EBA.

PN84

We believe that under MD(6) the Commission does have a role to vary an agreement to remove that uncertainty and so, in a sense, Commissioner, that is how it links in with the 127 application that is also before you because if the Commission does find that the work is appropriate covered by the existing certified agreement, then, in fact, any threats of setting up new bargaining periods or trying to access protected industrial would have no foundation. Having said that, Commissioner, we are quite happy to move into conference.

PN85

THE COMMISSIONER: Okay. Ms Walters?

PN86

MS WALTERS: Commissioner, it has been brought to my attention - if I could just, for the purposes of transcript, take the Commission to AIG1 prior to going into conference - you will notice at the top:

PN87

Blue Scope Steel, Westernport ...(reads)... tank replacement project, major site works.

PN88

THE COMMISSIONER: Yes.

PN89

MS WALTERS: Then it details the works and the contract, as such. So in relation to clause (3) of the enterprise agreement which refers to the scope of work, that is a clear indication that this project does not fall within the scope of that clause which again goes to jurisdiction.

PN90

THE COMMISSIONER: Why not?

PN91

MS WALTERS: Because, Commissioner, the union submits that this is a project. It is substantively different from a modification shut down or any other specified scope of work that is referred to in clause (3) and that it is identified in AIG1.

PN92

THE COMMISSIONER: Most shut down work is carried out under the heading of "projects" - because that is exactly what they are. The only time you may have something different where you may wish to call it a process would be a preventative maintenance program. That would be an ongoing process. But every work or every function that requires for a plant to be shut down or partially shut down is always done under a project. Always. I mean, I am happy to go into conference to see where we go from there.

OFF THE RECORD [3.37pm]

RESUMED [4.11pm]

PN93

THE COMMISSIONER: The Commission has had an opportunity to have a conference with the parties. Before the Commission determines that it would set the application under section 170MD(6), which is AG2004/8464, down for hearing, the unions, that is, the AWU and the AMWU, have indicated that they are prepared to give undertakings on transcript that they will not take any industrial action that is not protected industrial action under the Workplace Relations Act 1996. Ms Walters?

PN94

MS WALTERS: The Australian Workers Union gives that undertaking that prior to the hearing of that application the Australian Workers Union will not engage in any unprotected industrial action pursuant to the Workplace Relations Act.

PN95

THE COMMISSIONER: Thank you. Ms Chew?

PN96

MS CHEW: The AMWU reiterates its undertaking that it will not take unprotected industrial action.

PN97

THE COMMISSIONER: Thank you. All right, the Commission will set the application under section 170MD(6) to vary a certified agreement to remove ambiguity for 9.30 on Monday, 29 November 2004.

PN98

MR NOLAN: Commissioner, might I just ask a question?

PN99

THE COMMISSIONER: Yes, Mr Nolan.

PN100

MR NOLAN: The undertaking that Ms Walters gave was an undertaking that prior to the hearing of the section 170MD(6) application they won't take any unprotected industrial action. I wonder if you could just seek clarification as to what that really means? Does that mean only until 9.30 on Monday morning, or is it while the matter is being processed?

PN101

THE COMMISSIONER: The Commission's understanding in the discussions it had in conference, which Ms Chew has confirmed - and I am sure that it was Ms Walters' intentions also - was that there would be no industrial action that was not protected industrial action under the Act. Is that right, Ms Walters?

PN102

MS WALTERS: Yes.

PN103

THE COMMISSIONER: Thank you.

PN104

MR NOLAN: Thank you, Commissioner.

PN105

THE COMMISSIONER: All right, thanks. The Commission will stand adjourned until 9.30 on Monday, 29th.

ADJOURNED UNTIL MONDAY, 29 NOVEMBER 2004 [4.13pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #AIG1 TECHNICAL SPECIFICATIONS PN22