C2004/6501, Transcript of Proceedings [2004] AIRCTrans 4932 (17 December 2004)

AUSCRIPT AUSTRALASIA PTY LTD
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Level 3, 105 St George's Tce, PERTH WA 6000
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TRANSCRIPT OF PROCEEDINGS

O/N 1111

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

DEPUTY PRESIDENT McCARTHY

C2004/6501

APPLICATION FOR AN ORDER TO STOP
OR PREVENT INDUSTRIAL ACTION

Application under section 127(2) of the Act
by McConnell Dowell Barclay Mowlem Joint Venture
for an order to stop or prevent industrial
action on the Dampier Port Upgrade Project

PERTH

12.12 PM, WEDNESDAY, 8 DECEMBER 2004

THIS HEARING WAS CONDUCTED BY VIDEO CONFERENCE

PN1

MR P. WILLOX: I appear for the McConnell Dowell Barclay Mowlem Joint Venture with MR ELLIS.

PN2

THE DEPUTY PRESIDENT: Thank you.

PN3

MR L. EDMONDS: I appear on behalf of the AMWU sir.

PN4

THE DEPUTY PRESIDENT: Yes, thank you.

PN5

MR EDMONDS: Sir, suffice to say that we do object to Counsel appearing.

PN6

THE DEPUTY PRESIDENT: Yes, you can sit down Mr Edmonds.

PN7

MR EDMONDS: Sir, yes sir, if you leave me a moment sir I will actually take this down sir.

PN8

THE DEPUTY PRESIDENT: Re-arrange some of the furniture maybe.

PN9

MR EDMONDS: A smaller resident impression sir, I find it hard to see over the top. Suffice to say sir we object to Counsel appearing for the applicant, sir.

PN10

THE DEPUTY PRESIDENT: Do you want to make submissions on that, or are they the usual ones that you usually go down on?

PN11

MR EDMONDS: Well suffice to say sir that we don't consent and I actually believe it is for the applicant who intends to have Counsel to establish their entitlement under 42(3)(b), or 42(3)(c), to actually have Counsel to appear rather than for us to establish that they ought not appear.

PN12

THE DEPUTY PRESIDENT: Yes.

PN13

MR WILLOX: We do seek - I do seek leave, sir. As I understand it Mr Edmonds is also a legal practitioner. This is an urgent application under the Act, there may be matters of law which come up, complex factual background which nobody from the company based in Perth is able to address. Therefore I seek leave.

PN14

THE DEPUTY PRESIDENT: Yes, do you want to respond to that Mr Edmonds?

PN15

MR EDMONDS: Well, suffice to say sir, that I am entitled to appear pursuant to section 42(4)(a) of the Act, sir, and that I am an officer of the organisation.

PN16

THE DEPUTY PRESIDENT: Yes.

PN17

MR EDMONDS: So it is not necessary for me to seek leave sir. Suffice to say, sir, that Mr O'Reilly, who I understand is present in Karratha, is the HR Manager of the Joint Venture and is a person, sir, of some experience in HR, sir and I would say, sir, that he's more than capable of running the matter on behalf of the applicant sir and I would also say, sir, is that we haven't actually heard as to the complex legal matters that may arise in these particular proceedings that make it necessary to have Counsel.

PN18

THE DEPUTY PRESIDENT: I don't think it was stated that there are complex legal matters and I don't think it was even stated that legal matters will arise, I think it was stated that there were legal matters that may arise, in that case and they often do arise, often by jurisdictional issues being questioned, Mr Edmonds. So, I don't think it was - I think it was put that it may facilitate the expedition of the proceedings by not having to - well it was implicit in what was said, by not having to have Counsel later represent, or have legal representation later determined, but rather through the whole of the proceedings. That's the implication I took from the submission anyway.

PN19

MR EDMONDS: Well, sir, if the Commission is satisfied that there are special circumstances for doing so, sir, then it is not up for us to be satisfied, it is a question for the Commission sir and if you're satisfied, sir, then - - -

PN20

THE DEPUTY PRESIDENT: Yes, leave is granted. Yes, Mr Willox?

PN21

MR WILLOX: Thank you sir. This is an application under section 127(2) of the Act, by McConnell Dowell Barclay Mowlem Joint Venture. Sir, just over a month ago you may recall a certified agreement was certified by yourself on 5 November. I'm sure you get many, but that particular agreement just over a month ago called the Dampier Port Upgrade McConnell Dowell Barclay Mowlem Joint Venture Metal Trades Certified Agreement 2004. I have a copy here of - - -

PN22

THE DEPUTY PRESIDENT: I have a copy of it.

PN23

MR WILLOX: Thank you sir.

PN24

THE DEPUTY PRESIDENT: That is print PR953009 is it?

PN25

MR WILLOX: I believe so, sir. This agreement regulates construction work at the Dampier Port Upgrade Project. The agreement is binding on the Joint Venture, its employees and the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union of Australia. There are approximately 133 employees bound by this agreement and those are the people listed in schedule 1 to the application, which was filed yesterday. The certified agreement includes a no extra claims clause, it says that it is a comprehensive agreement as to terms and conditions of employment and as required by the Act there is a dispute settlement procedure.

PN26

The parties committed to exhausting the procedures outlined, to resolve issues, difficulties and questions arising throughout the life of the works. It is a pretty standard process that issues would be raised with immediate supervisors and if they can't be resolved they are to be taken to a more senior level, ultimately with the involvement of the union. And the procedure provides that while these steps are being followed normal work will continue and sensible time limits should be allowed for all steps for all stages of the discussions to be finalised.

PN27

As the Commission may recall this agreement was reached after significant unprotected industrial action during the negotiation period, including one application to this Commission and the company ultimately made significant concessions, in particular increased rates of pay, reduction in R&R cycle and introduction of a 36-hour week from 1 January. Sir, the company should be able to expect that this agreement will be complied with; that the dispute resolution procedure will be followed; and that it not be forced to suffer repeated strike action in the first month of the agreement, or, for that matter, at any time and ultimately to suffer significant financial losses each time the work force strikes.

PN28

Sir, there have now been four strikes by AMWU members, employed by the Joint Venture, since the agreement was certified just over a month ago. The first strike related solely to a claim by Mr Tony Lovett, the AMWU organiser, that either a Mr Brett Davies, or a Mr Rhett Wilson, be engaged by the Joint Venture, to take on the role of a shop steward for the AMWU on that project. The company's position in response to that was that a representative of the work force should come from existing employees. Mr Lovatt requested a meeting of his members for 9 November, four days after the agreement had been certified, to report back to members on this issue.

PN29

The Joint Venture authorised that meeting, to the extent that the productivity incentive payment would not be lost provided there was a return to work. Mr Lovatt addressed the meeting on 9 November and employees went on strike following that meeting. Mr Lovatt stated that there would be a return to work on 11 November and a further meeting scheduled for 15 November to hear whether the company had changed its position. Mr Lovatt suggested that employees had a large number of grievances and the way to fix this was to hire Mr Davies. Employees did return to work on 11 November, without a further meeting occurring. In response to this action the company then sent the union and employees a letter. If I can hand up a copy of those letters, sir?

PN30

Sir, that letter was a relatively soft response to what had occurred, it simply pointed out to employees the process that had been followed in reaching the agreement. It pointed out the dispute resolution procedure and directed employees to attend for work in accordance with the normal roster and that letter was also sent to the union expressing the company's disappointment about what had happened.

PN31

THE DEPUTY PRESIDENT: Do you want that marked?

PN32

MR WILLOX: Yes please sir.

EXHIBIT #A1 LETTER FROM COMPANY TO UNION AND EMPLOYEES POINTING OUT DISPUTE RESOLUTION PROCEDURE

PN33

MR WILLOX: Sir, the meeting on 15 November then occurred. Mr Lovatt addressed that meeting and a further strike occurred consequent on that meeting. Mr Lovatt informed the company that it was a 24-hour strike in protest at the letters that had been sent to the union and employees. On 19 November Mr Lovatt met with representatives of the company and asked the company if he could visit work areas to recruit employee representatives and obtain a detailed list of issues and grievances, which he could then sit down with the company and work through. The company agreed to this request and Mr Lovatt was permitted to do this exercise on 21 and 22 November.

PN34

A meeting then took place on 25 November with the company representatives, Mr Lovatt and a number of employee representatives that had been identified by Mr Lovatt. A number of issues were discussed from a handwritten list and there was agreement for a written list of issues to be provided to the company and this list was then received by the company on 29 November. If I could hand up a copy of that list of issues and if I could have that marked please?

EXHIBIT #A2 WRITTEN LIST OF ISSUES PROVIDED TO THE COMPANY ON 29 NOVEMBER

PN35

MR WILLOX: Sir, do you want an opportunity to read through that?

PN36

THE DEPUTY PRESIDENT: No, continue.

PN37

MR WILLOX: Consequent on that written list being provided a meeting then took place on 30 November the next day with company representatives, Mr Lovatt and the work force representatives. All of the issues in the list were discussed. Substantive responses were provided to many of the issues and a number of issues were addressed on the basis that a response would be forthcoming and in some cases immediate actions were identified that would be taken. It was arranged that there would be a report back meeting to employees on 3 December and a further meeting of this group to work through the remainder of the issues on 7 December.

PN38

On 2 December Mr Bernie O'Reilly, the HR Administration Manager for the Joint Venture, met with Mr Lovatt and provided him with a spread sheet, which was basically he had gone through and put the list of issues down the left-hand side, with a column down the right-hand side, for the responses and conclusions for those issues. If I could hand up a copy of that document? If I could have that marked please?

EXHIBIT #A3 SPREAD SHEET WITH LIST OF ISSUES

PN39

MR WILLOX: As that document shows at that stage about three-quarters of the issues had responses next to them and it was agreed that the meeting on 7 December would aim to complete the process and have responses and action items for each of the issues which had been identified. On 3 December the report back meeting occurred. Mr Lovatt again addressed that meeting and the employees again went on strike. The company was subsequently told that the employees were not happy with the progress being made. Work then resumed on this Monday morning, 6 December, without the further meeting. So that again was a 48-hour strike.

PN40

As a result of that the company then informed Mr Lovatt that the meeting scheduled for 7 December was cancelled, due to the industrial action. Mr Lovatt then requested an authorisation for a report back meeting to occur on 8 December, ie this morning. Mr Lovatt was told that that proposed meeting was not authorised. Mr Lovatt said that the meeting would go ahead anyway and that he would advise employees to see the job through to Christmas, make everything safe and then hit the employer with everything they had got after they come back. This meeting did, in fact, take place this morning. It was attended by about a third of the work force and employees returned to work after that meeting. However - - -

PN41

THE DEPUTY PRESIDENT: What happened to the other two-thirds of the work force?

PN42

MR WILLOX: They didn't attend the meeting.

PN43

THE DEPUTY PRESIDENT: They worked as usual?

PN44

MR WILLOX: I believe so.

PN45

THE DEPUTY PRESIDENT: Yes.

PN46

MR WILLOX: We understand that Mr Lovatt had also - had said to the work force that they should also hound the company on safety issues and consequent on the meeting this morning and the return to work I understand that there are a lot of small safety issues being raised, people refusing to work until areas are cleared up, etcetera and in addition to that we have a situation where crews are not taking their normal breaks and have said that they will take breaks at different times. In particular, normal breaks are 10 o'clock for morning, 1 o'clock for lunch and then the practice has been to take the afternoon break at the end of the shift, so effectively people finish 20 minutes early at the end of the day.

PN47

We understand that people today are taking - took the morning break at 9, taking lunch at 12 and taking an afternoon break at 3. We would say that whatever the ultimate effect on their day is, that is clearly not working as per normal. So to summarise the position there have been two 48-hour stoppages; one 24-hour stoppage; and a 1 hour stoppage and now not working as per normal and this is all in the first month of the agreement. The dispute resolution process has not been followed. Employees have ignored a written direction to work in accordance with their rosters and we have had a threat from the union for further industrial action.

PN48

MR.....: That's lies.

PN49

THE DEPUTY PRESIDENT: I don't know who was speaking then, but would you please not interrupt during the submissions, you will be given every opportunity to have your say, if you request in accordance with the proper procedure. Thank you. Proceed.

PN50

MR WILLOX: As a result of this action - - -

PN51

THE DEPUTY PRESIDENT: Just a moment, Mr Edmonds, I assume that was someone from your side and I would request that you convey the message and advice in appropriate terms at some later stage.

PN52

MR EDMONDS: Yes, sir, certainly sir.

PN53

MR WILLOX: Sir, as a result of this action the Joint Venture has suffered significant direct losses. There are significant out-of-pocket expenses, overheads, wasted expenses on hire of plant and equipment and wharf space, well over $1 million to date. In addition to that there is significant prospect of escalating liquidated damages. The project is behind schedule and so the Joint Venture is suffering financial loss and the prospect of significant financial losses down the track. In addition, delays to finishing this work mean delays in exporting iron ore through the port.

PN54

The purpose of the project is to enable the owner, Hamersley Iron to get more ore out through the port, which in the current climate of shortages of ore simply means that every day lost is significant losses through the inability to get ore on ships and then in export dollars. So that is the consequences of these stoppages. Given that there have been four stoppages and the further conduct occurring today, further action clearly is probable. There is clearly now a course of conduct, for stoppages and further action in the first month of the certified agreement.

PN55

There has also been further industrial action threatened. The industrial action is clearly in relation to work regulated by the certified agreement, it is also in breach of the certified agreement and the Joint Venture is a party directly affected. In terms of ..... rated service, sir, the Commission is aware there are 133 employees who have been named in the schedule. Currently I understand that 110 of the 133 people have been served, 10 people are on R&R, who have not yet been served and there are another 13 people who the company is still trying to locate on site. The union was served yesterday afternoon. Accordingly we would press this morning for the orders sought in the application, Mr O'Reilly is available to give evidence, if any of the facts I've outlined are disputed.

PN56

THE DEPUTY PRESIDENT: The size of the project and the expected duration of the project and when the project commenced Mr Willox can you provide me with some background of that nature?

PN57

MR WILLOX: Mr O'Reilly may be able to assist. When did the Joint Venture begin - - -

PN58

THE DEPUTY PRESIDENT: Well, just a moment Mr Willox, I was asking you, I didn't give you liberty to simple ask questions of anybody. If you want to have an adjournment to get the information for that, that will be provided. You are not aware of that background?

PN59

MR WILLOX: No sir, the project - the Joint Venture began work on 1 April 2004. My understanding is that there is at least 6 months, possibly up to a year to go, possibly longer, depending on what works are required. The specific job is the marine package, which is largely, as I understand it, extending the wharf. I don't know the dollar value off the top of my head.

PN60

THE DEPUTY PRESIDENT: I don't need the dollar value, so it has got a substantial period to go.

PN61

MR WILLOX: It has a significant period still to go.

PN62

THE DEPUTY PRESIDENT: It's a sizeable project and the project is to provide increased capacity for export of iron ore, is it?

PN63

MR WILLOX: As I understand in simple terms, what they are doing is doubling the length of the wharf so that they can put another ship in there and load - - -

PN64

THE DEPUTY PRESIDENT: Two at a time, or something?

PN65

MR WILLOX: Correct.

PN66

THE DEPUTY PRESIDENT: Yes, or more at a time.

PN67

MR WILLOX: Certainly increased through-put.

PN68

THE DEPUTY PRESIDENT: Yes. Yes, can I turn to you at the moment Mr Edmonds?

PN69

MR EDMONDS: Yes, sir, thank you sir. Well, certainly sir, if I could say in the first instance, sir, that there is no industrial action taking place at the moment. The workers are working, doing the jobs in accordance with the agreement. Sir, there is no industrial action occurring at the moment, so I suppose the argument is whether industrial action is threatened, impending, or probable.

PN70

THE DEPUTY PRESIDENT: You are not disputing industrial action has occurred?

PN71

MR EDMONDS: Well, no sir, I suppose - I suppose we're not disputing there has been stoppages, sir, but we would say that those stoppages are of a particular nature, of a particular character, in such that they don't warrant the issuing of a section 127 order.

PN72

THE DEPUTY PRESIDENT: But you're not contesting that there was industrial action within the definition in the Act?

PN73

MR EDMONDS: No sir, we are not contesting that, no, sir.

PN74

THE DEPUTY PRESIDENT: Yes.

PN75

MR EDMONDS: But certainly there has been action in the past. There is no action on foot at the moment. What we would say is that that action has not been supported, encouraged, or procured by the AMWU. Those stoppages that have occurred have been a reaction, I suppose, to what is seen by the work force as a failure on the part of the employer to progress what are a number of disputes that have occurred in the work place and a failure to properly progress them and to properly, I suppose, address those particular issues through the disputes procedure.

PN76

And we see, sir, in the failure on the part of the company to properly advance those complaints which have been brought in accordance with the grievance procedure. The failure of the company to properly progress those matters has resulted in a - I suppose an outpouring of frustration by the workers at the failure of the company to deal with those complaints, or to deal with those difficulties on the job. Now, essentially sir, these are all - these are housekeeping issues. These are matters that should be dealt with on a day to day basis just as a matter of course.

PN77

They are not substantial complaints about, you know, about the money, or about anything like that. These are just - these are just, you know, these are just very basic complaints about, you know, the failure to provide ice and needing smoke-o huts and sun-screens and all these sort of issues, which are just - just minor issues which should be being dealt with by the employer as a matter of course. But they are getting to the point where they have to be advanced all the way through the disputes procedure, every petty little complaint and they are taking a long time to resolve sir, and essentially that's causing a reaction from the workers where they get sick and tired of these matters not being fixed properly by the employer.

PN78

And we would say, sir, that the employer is not engaging that process in good faith and they are certainly not assisting the resolution of these matters and indeed they went so far as to say that on 7 December they have cancelled a further meeting to deal with these particular grievances, which I don't think, sir, is conducive to resolving the issues. I don't think it's in accordance with the agreement and I certainly don't think, sir, that they should be able to come in front of you today sir and claim that they've got clean hands on this particular issue, because they certainly haven't.

PN79

Now, there has been no evidence that has been put in front of you today, sir, of the AMWU attempting to, or any of its officials, attempting to procure or incite any industrial action and indeed, sir, we would say that the situation is quite the opposite, that the AMWU has, or its official, through Mr Lovatt, has attempted to keep the workers at work, has been the driving force behind trying to resolve these issues on the job and it has been trying to keep the workers at work in an effort to fix these problems.

PN80

Now, Mr Lovatt has certainly made it clear that the company should engage either Mr Davies or Mr Wilson, who are workers who have been shop stewards for some previous jobs, who have I suppose shown the capacity to effectively communicate issues between the work force and the employer, thus facilitating a job where there is little industrial action, if any and the resolution of these sorts of disputes. And that is the context of Mr Lovatt saying to the company: if you want to resolve these issues, if you want to stop industrial action occurring, you need to employ one of these two people, which is pointing out to the company that - the value of having a strong and trusted and experienced shop steward on the job who can resolve those particular issues.

PN81

And it is certainly in no way a threat on the part of Mr Lovatt to take industrial action if these people aren't employed, it is a plea by Mr Lovatt to ask these people to sensibly run their project to employ people who can effectively assist them in the management of the job, who can effectively operate within the disputes procedure and keep the job on line and keep it moving. So, there has certainly been no threats made by Mr Lovatt in relation to the employment of these people. Sir, we would say sir, that the employer is not effectively engaging in the disputes procedure.

PN82

There are a number of outstanding complaints that aren't being dealt with properly by the employer, or that have not been dealt with properly to this point by the employer. We would say sir that there is no industrial action occurring at the moment and that the employer should walk away from here today, sir, with a recommendation that they re-engage with the disputes procedure in an effort to resolve this problem. There are, I understand - I understand there has been an allegation that Mr Lovatt was supposed to have said that the - that he would advise the workers to work through till Christmas and then hit the employer with everything they've got after Christmas.

PN83

We would say that is simply not the case. I understand, sir, that only one third of the work force attended the report back meeting that was scheduled for this morning, sir. I don't know if that is the third that are - I don't know if that is the only third that appear in schedule 1, or if there is only one third of the workers that appear in schedule 1 that actually attended the meeting today, but suffice to say, sir, that if this morning's meeting can be characterised as industrial action, which we say it shouldn't be, but if it can be characterised as industrial action sir, then it certainly hasn't been participated in by the majority of the work force and indeed the majority of the work force had not participated in the alleged industrial action this morning.

PN84

So, we would say that sir, that shouldn't be a factor when considering whether to issue an order today. We would certainly say, sir, that we have heard no evidence to this point that Mr Lovatt has done anything in order to induce or cause these employees to breach the agreement and indeed our contention is that Mr Lovatt has done everything he can to avoid that situation from arising and it sounds like the employer has conceded sir, that there is unlikely to be any industrial action until after Christmas and at the very least sir, and we would say sir, that if the employer were to properly engage with the disputes procedure, sir, and to properly resolve issues on the job, sir, it would be unlikely that there would be any industrial action going into the future.

PN85

From what I understand, sir, there is actually four different employers on the job and - of which the applicant is one and from what I understand there has hardly been a peep out of the other three, the other three the jobs are going smoothly and there are no problems whatsoever. So, we would say sir, that the problem in this situation exists with the employer and the remedy to this problem is not to issue a blanket 127s for the next 7 months or so, sir, the resolution to this matter sir, is to instruct the parties to go away and properly engage in the disputes procedure, which is certainly something that the AMWU has been endeavouring to do and will endeavour to do into the future.

PN86

THE DEPUTY PRESIDENT: This is a 170LJ agreement isn't it Mr Edmonds?

PN87

MR EDMONDS: Yes, sir, it is, sir. There was some negotiations that took place prior to this agreement finally being served, there was never a bargaining period initiated from what I understand sir. So, I believe this matter was in front of you previously sir, but there was certainly no contention on our part that any action prior to the agreement being certified in relation to seeking a federally certified agreement and indeed sir, we would say that up until the certification of this agreement the job itself was under the auspices of the State Commission sir.

PN88

THE DEPUTY PRESIDENT: Yes and those employees that formed the valid majority to approve the agreement, has there been any significant change in numbers, or make up of the work force that are currently there?

PN89

MR EDMONDS: I couldn't say that for sure sir, but Mr Lovatt I know has just raised his hand sir, so maybe that is a question more properly addressed to either him, or to the company representatives, sir.

PN90

THE DEPUTY PRESIDENT: Yes. And has the union explained, or made any endeavour to explain the terms of the dispute resolution procedures to employees that are covered by the agreement?

PN91

MR EDMONDS: Absolutely sir. Absolutely, if I may say Mr Lovatt has done his best sir to ensure that the workers understand their obligation to remain at work sir, but suffice to say sir, there is frustration as to the way the employer is running the particular job and that frustration occasionally boils over sir. But, suffice to say sir, that Mr Lovatt has endeavoured to explain that to the workers and has explained to the workers the need for them to properly engage in the disputes procedure and to stay at work. And indeed I understand that that was what was explained at this morning's meeting sir and he managed to secure a return to work this morning, after the report back meeting, sir.

PN92

THE DEPUTY PRESIDENT: Mr Edmonds, I'm on a limited time frame today.

PN93

MR EDMONDS: Yes, sir, I understand sir.

PN94

THE DEPUTY PRESIDENT: And if the applicant wishes to pursue its application, I can imagine that would require evidence?

PN95

MR EDMONDS: Yes, sir.

PN96

THE DEPUTY PRESIDENT: I suspect, given one of the contentious issues he has contested, only that there is probably the most contentious issue that there is any impending, probable, or threatened industrial action - - -

PN97

MR EDMONDS: Yes sir.

PN98

THE DEPUTY PRESIDENT: - - - is likely to need evidence on your part.

PN99

MR EDMONDS: Yes, sir, certainly sir.

PN100

THE DEPUTY PRESIDENT: And given that evidence will almost certainly rely on the credibility of who said to what to whom, when and that is difficult to ascertain by video link, of the various parties.

PN101

MR EDMONDS: Yes sir. Certainly sir, especially when the two witnesses are sitting side by side sir and everyone else is sitting in Perth.

PN102

THE DEPUTY PRESIDENT: Yes. One of the options, I suppose, is to adjourn the proceedings and to re-list it when evidence can be heard directly. If I do that then there is I suspect, I will be requested to make an interim order. What do you say about the prospect of an interim order if that - if an adjournment takes place and there is a hearing of the matters to determine them given from what you've said there is no threatened, or prospect of, or impending industrial action, so if there were interim orders issued, it shouldn't impact on anybody?

PN103

MR EDMONDS: Well, no sir, and certainly in a perfect world sir, if there were interim orders issued then the workers would be indignant that their credibility would be questioned, that indeed - - -

PN104

THE DEPUTY PRESIDENT: It doesn't mean that.

PN105

MR EDMONDS: No sir, but certainly sir, in my experience orders of any kind, whether they are interim or otherwise, have a - I suppose a - regarded as being of a particular nature by the work force, sir, and where there may not be any industrial action threatened, impending, or probable sometimes sir interim orders have the capacity to provoke action where some is not even contemplated sir. And we would say, sir, certainly even on the submissions of the applicant sir - even if their submissions were to be accepted and mine to be ignored sir, there is no industrial action pending, or contemplated before Christmas sir.

PN106

THE DEPUTY PRESIDENT: Well your submissions would never be ignored by me Mr Edmonds.

PN107

MR EDMONDS: No sir and I'm not suggesting that they would be sir, but I'm saying even if you were of a mind to ignore my submissions and accept the submissions only of the applicant, then their submissions were that there is no industrial action contemplated until after Christmas, sir. And indeed, sir, I think it would be unlikely that there would be any action at this point sir.

PN108

THE DEPUTY PRESIDENT: I don't think that they said that there was no -they were asserting there is no industrial action contemplated until after Christmas. I think what they said was they are concerned that there is a probable industrial action before Christmas, but even more afterwards. That is the inference that I got from what they were saying anyway.

PN109

MR EDMONDS: Sir, certainly, if I could say sir, in my brief experience in the dealing with heavy construction sir and it is only brief experience, workers are unlikely to take industrial action, or are unlikely to take any strike action this close to Christmas sir. I believe most people are concerned about making as much money as possible before Christmas.

PN110

THE DEPUTY PRESIDENT: What is the - is there going to be a break over Christmas, will the site be not operating for any period?

PN111

MR WILLOX: I understand there is a short break over Christmas.

PN112

THE DEPUTY PRESIDENT: Mr Willox, or Mr Edmonds, what duration?

PN113

MR WILLOX: I would have to get instructions.

PN114

THE DEPUTY PRESIDENT: Well, I might just take a liberty myself, I think Mr O'Reilly and Mr Lovatt, you've been listening to all this, so have you - perhaps if one of you can just inform me and everyone else here, is the site going to in fact shut down over Christmas?

PN115

MR B. O'REILLY: The Joint Venture is closing our site from 22 December and we return to work on 4 January.

PN116

THE DEPUTY PRESIDENT: I see, thank you. Yes. Can I turn to you Mr Willox, you heard me with the comment of Mr Edmonds about the proceedings and I'm working on the assumption you want to pursue your application, notwithstanding what has been said?

PN117

MR WILLOX: Sir, we - - -

PN118

THE DEPUTY PRESIDENT: Do you have any comment what has transpired, been said?

PN119

MR WILLOX: Sir, we certainly do wish to proceed with the application. I understand the issues with the time frame today, the logistics of having witnesses in another room a long way away. We do press on the basis that there has been a course of action that there is threatened action and that there is probable action, based on comments from Mr Lovatt and others. I understand the issue about an adjournment and if there were to be an adjournment we would certainly be seeking an interim order on that basis. And I adopt your approach sir, really all they are being ordered to do is what they are required to do by law, anyway, essentially is to follow the - abide by the certified agreement.

PN120

THE DEPUTY PRESIDENT: Yes. I don't normally, but on this occasion, I might, given the exigencies of the - where people are located at the moment, I might just go off record for a while and go into conference and discuss some of these matters off record. I will go off record now, thank you.

OFF THE RECORD

PN121

THE DEPUTY PRESIDENT: I have had discussions with the parties, I am going to recommend, or I do recommend and I will provide these recommendations in writing to the parties later this afternoon, that the issues that form the basis of the concerns and grievances and/or disputes and/or safety issues, raised by employees and by the union, be the subject of progress through the relevant procedures within the agreement, without recourse to industrial action and aimed at expeditious resolution of those issues. I strongly recommend, as well, that there be no industrial action and that the scheduled and normal hours of work, including when work breaks are normally undertaken, be continued on the basis of when those work breaks were and what those hours of work were.

PN122

I will include that in a recommendation. I will schedule the matter for the application for hearing as soon as I can and should the matters be resolved, which I hope they are, in the interim, then the applicant has the option of either pursuing its application, or taking any other actions with respect to it that it deems appropriate. Should there be a further concern resulting from any conduct that the applicant believes gives further rise to potential that industrial action may occur, they are at liberty to re-agitate the application before the scheduled date for hearing.

PN123

Should they be able to provide, even on the papers, sufficient to me that justifies those concerns, I may well issue interim orders on those papers without the conduct of a further hearing, Mr Edmonds. I recommend, as well, that the obligations under the agreement to both parties with respect to compliance with the various procedures under the agreement be further explained to both employees and officials and delegates on site Mr Edmonds and Mr Willox to representatives of the employer and management of the employer at the site. I will adjourn on that basis.

ADJOURNED INDEFINITELY [1.12pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #A1 LETTER FROM COMPANY TO UNION AND EMPLOYEES POINTING OUT DISPUTE RESOLUTION PROCEDURE PN33
EXHIBIT #A2 WRITTEN LIST OF ISSUES PROVIDED TO THE COMPANY ON 29 NOVEMBER PN35
EXHIBIT #A3 SPREAD SHEET WITH LIST OF ISSUES PN39