C2004/1124, Transcript of Proceedings [2004] AIRCTrans 477 (5 February 2004)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 2, 16 St George's Tce, PERTH WA 6000
Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS

O/N 165
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER THATCHER

C2004/1124

APPLICATION FOR AN ORDER TO
STOP OR PREVENT INDUSTRIAL
ACTION

Application under section 127(2) of the
Act by P & O Ports Limited for an order
to stop or prevent industrial action

PERTH

2.00 PM, TUESDAY, 27 JANUARY 2004

Continued from 9.1.04

PN134

MR S. ELLIS: I continue to appear with MS Z. WEIR on behalf of the applicant.

PN135

MS K. FAWCETT: If it pleases the Commission, I seek leave to appear on behalf of the respondent, with me I have MR M. WALTON.

PN136

THE COMMISSIONER: Yes, leave is granted. These proceedings follow the adjournment of the hearing on 9 January for 14 days. Those proceedings concluded with a statement of agreed outcomes which included that in consideration of the undertaking of the respondent union, that the employees will resume work immediately and continue normal work thereafter and that it will do all things necessary to cause the employees to return to and continue work immediately.

PN137

The applicant undertakes to the Commission that (a) will carry out a thorough and prompt investigation in relation to the incident concerning Heath Schmidt and the safety issue surrounding the use of twin lifts on Midlock containers on 8 January 2004 involving employee and WorkSafe representatives. And (b) pending the finalisation of the investigation the applicant will discharge 20 foot containers at Fremantle with Midlocks in a single lift. Also the applicant was required to report back in writing to the Commission within seven days of the status of this matter. On 16 January the Commission received a report on behalf of the employer which included advice of a further incident that occurred on 13 January.

PN138

Ms Fawcett, I assume that you have seen a copy of that report?

PN139

MS FAWCETT: Commissioner, I haven't. I wonder if I might be provided with a copy?

PN140

THE COMMISSIONER: Thank you. I will just pause for a moment.

PN141

MS FAWCETT: Thank you, Commissioner.

PN142

THE COMMISSIONER: Yes. Mr Ellis?

PN143

MR ELLIS: May it please the Commission. Since a letter of 16 January 2004, there has been a substantial amount of further work done in connection with finalisation of the report. My instructions are that that report which has involved representatives of WorkSafe and the employees on site is virtually complete and there is just some minor wording changes and finalisations to be made. Prior to completion of the report and arising out of the matters referred to in the letter of 16 January, there was a non-attendance by representative of WorkSafe at the site.

PN144

A protocol was agreed involving the WorkSafe representative and that protocol, I'm instructed, has been adhered to since that time. My client has informed its employees of the protocol at Tool Box meetings and I'm instructed that there will be more formal training sessions relating to the procedure which will take place next week. There are some other recommendations and I am instructed that those recommendations will be implemented as soon as possible. One of the recommendations involved fitting a load sensor, that was something which my client had in train before this incident but I'm instructed that it will be fast-tracked in light of it. Pending fitting of the weight sensor, the protocol which has been agreed addresses those issues.

PN145

As indicated in the report back letter, there was a further incident involving industrial action. Again that industrial action took place without any reference to the dispute resolution procedures contained in the certified agreements which are applicable and that matter continues to be a matter of concern for the applicant. It is conceded however that at present there is no threat of immediate industrial action arising out of this issue. Work involving unloading vessels with Midlocks has continued in the normal way since the episode of 13 January.

PN146

However, in light of the failure to comply with the dispute resolution procedure we seek orders that this application be adjourned without a further hearing date be fixed but with liberty to other party to bring the matter on at short notice. May it please the Commission.

PN147

THE COMMISSIONER: Ms Fawcett, your response to that request.

PN148

MS FAWCETT: Commissioner, if I could just briefly address the matters raised in the correspondence from Freehills to the Commission on 16 January 2004 and also briefly raised by my friend today. In relation to the alleged further incident of incident of industrial action. Commission, my instructions are that there was a stoppage of work based on what employees saw as an imminent risk to their health and safety what I understand to be related to the very same incident that originally provoked this matter. There was an attendance by WorkSafe.

PN149

The parties came to an agreement that involved putting in place a protocol to deal with use of this equipment. My understanding, my instructions are that that protocol has been abided by since that time. It was within the applicant's capacity to bring this matter back on at that time had they concerns about the matter. We would submit that the fact that they didn't do so suggests that that was adequately resolved to their satisfaction. There is nothing before you today to suggest that there has been any threat or probability of industrial action since that time. We would submit that there is no need for this matter to continue to be on foot and that it should be discontinued or in the absence of that it should be dismissed.

PN150

THE COMMISSIONER: Anything further, Mr Ellis?

PN151

MR ELLIS: Only to comment that attempts were made to bring the matter on before the Commission again but the matter was resolved before that came to pass.

PN152

THE COMMISSIONER: I have noted that whether OH&S concerns justify industrial action was commented on by Munro J on 9 April 2003 in a case re Rydalmere Plant, Industrial Action order 2002 which is PR929970 and he referred to three elements and stated at paragraph 46:

PN153

It requires that the relevant industrial action be at least based upon the person taking the action having a genuine and reasonable belief about an imminent risk to the health and safety of that person or of others. In addition, any action taken must be proportionate to that risk and dispute settlement procedures relevant to safety disputes at the site must have been fully complied with.

PN154

In this case in taking the action it is arguable whether the concern by the employees and the union about the risk to the safety of employees was imminent, that is, whether there was an imminent risk and it is, of course, not sufficient for there to be a concern, that concern must be reasonably based. I've also noted that in this State OH&S is regulated by the OH&S Act 1984 and that section 24 provides for procedures to apply where an OH&S issue arises. Section 25 provides for an OH&S inspector to be notified where an issue is unresolved. Section 25(2) provides that:

PN155

An inspector upon being notified under subsection 1 shall attend forthwith at the workplace and either (a) take such action under this Act as he considers appropriate or (b) determine that in the circumstances no action is required to be taken under this Act.

PN156

Also noted that under the Act further in sections 48 and 49:

PN157

Inspectors may issue improvement notices or prohibition notices.

PN158

Also both of the certified agreements, that is namely, the P & O Ports Fremantle Terminal Enterprise Agreement 2003 and the P & O Ports Fremantle General Stevedoring Enterprise Agreement 2002 provided for a process to be followed when changes to OH&S practices are considered necessary. Further, both certified agreements provide for dispute resolution procedures and despite this, the Commission is hearing that two stoppages of work occurred prior to the Commission being notified of the disputes.

PN159

I can only say that it is my expectation that when OH&S issues arise, the provisions of the OH&S Act and the certified agreements will be immediately invoked and be fully complied with. If there are issues - sorry, if there is an industrial dispute such that there are issues that remain unsolved, either party is able to access the services of this Commission. I'm heartened by the advice I have received today on behalf of the applicant in relation to the extent of the review, the investigation review which has been undertaken and the advice about those recommendations are to be implemented as soon as possible. I think if there is nothing further to be said at this stage I think I will take action just to adjourn the matter. Either party is, of course, at liberty to apply to the Commission at short notice should further industrial action occur. This matter is adjourned. Thank you.

ADJOURNED INDEFINITELY [2.13pm]