C2004/6949, Transcript of Proceedings [2004] AIRCTrans 5037 (23 December 2004)

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TRANSCRIPT OF PROCEEDINGS

O/N 15772
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER HARRISON

C2004/6949

APPLICATION FOR AN ORDER TO STOP
OR PREVENT INDUSTRIAL ACTION

Application under section 127(2) of the Act
by Abigroup Leighton Joint Venture for an
order to stop or prevent industrial action
on the M7 Motorway Project

SYDNEY

10.27 AM, WEDNESDAY, 15 DECEMBER 2004

PN1

THE COMMISSIONER: Could I have the appearances please?

PN2

MR P. RYAN: Employers First, I'm appearing for the applicant, Abigroup Leighton Joint Venture. With me at the bar table is MR T. ARMSTRONG, Human Resources Manger from the Joint Venture.

PN3

THE COMMISSIONER: Thank you Mr Ryan.

PN4

MR J. MILLER: I appear for the CFMEU.

PN5

THE COMMISSIONER: Thank you, Mr Miller. Mr Miller, just for your benefit we have a photographer here today because it is the one hundredth anniversary of the enactment of the first Conciliation and Arbitration Act so we are recording a day in the life of the Commissioner, one hundred years later. Mr Ryan?

PN6

MR RYAN: Thank you Commissioner. Before I begin, I just warn the Commission that it may feel a tinge of deja vu in relation to today's proceedings and in saying that it is the position of the applicant that it doesn't seek to have any orders made this morning and that's where the deja vu may come in Commissioner because you may recall that the parties have previously been before the Commission in relation to the project on four occasions in three separate 127 applications. This being the fifth occasion and the fourth application made this year.

PN7

I won't bother the Commission with the details of those previous matters but on each occasion that we have come before the Commission it has been the situation that for whatever reason the industrial action that is complained is by way of conciliated means has managed to resolve the issues and that appears again the case today. In the circumstances we don't see it as being appropriate to seek orders now We will be asking the Commission to stand this particular matter for a period to ensure, or to help ensure that the resolution of the issues remains at least until the end of this year.

PN8

Just briefly the issues that were in dispute relate to a unauthorised industrial action that occurred on Monday. After a period of inclement weather a certain group of employees refused to go back to work as directed, complaining of issues in relation to facilities. None of those issues in our opinion, or in our submission related to any imminent risk to health and safety, nor could there be a reasonable concern over any such, or any imminent risk. The unions and the employees advised the joint venture that they would return to work the following morning, however they refused again to do so.

PN9

As a result of that second refusal to work the joint venture proceeded to lodge the dispute with the New South Wales Industrial Relations Commission and to lodge a 127 application before this Commission. Kavanagh J dealt with the state dispute yesterday and the result of those proceeding is a recommendation that the employees return to work this morning at 7 o'clock and there were a couple of other ancillary recommendations out of those proceedings. They were that the joint venture would fix any particular problems that were brought to their attention about the facilities, which they have done and I think thirdly that the parties should conduct themselves with dignity, a curious direction.

PN10

In any event, Commissioner, employees did return to work this morning, not at 7.00 o'clock unfortunately but at 9.00 o'clock and it seems that the issues have been resolved and the employees have agreed to perform work as directed.

PN11

In the circumstances we don't seek for the Commission to make any orders this morning and we would ask that the Commission stand this matter over either for report back on 24 December which is the date I'm instructed the project will close down for a few days over the Christmas New Year period, or for example a provisional report back for hearing on that day and leaving it for the parties to advise the Commission as to whether that might be necessary.

PN12

The only other thing Commissioner is that it needs to be noted that today and on the previous occasions which I referred you to earlier, the AWU has refused to make an appearance in relation to these proceedings even though they have been served with the application and been served with the listing that came through yesterday afternoon.

PN13

If the Commission pleases.

PN14

THE COMMISSIONER: Thank you. Mr Miller.

PN15

MR MILLER: Thank you, Commissioner. Mr Ryan's a bit mixed up. He said there was no risk to health and safety, well I can give you the information here and pass that up to you. There was quite a bit of risk to health and safety and they are all documented in this safety rectification notice. One of them was that a toilet was locked and the supervisor had locked it so nobody could use it, so that's a health and safety problem and they were forced to use a Portaloo and there was 25 workers on the job roughly. As I say there are pages and pages of their problems here and some of them, well most of them are all health and safety issues that would cause a problem in the amenities area.

PN16

The other issue that Mr Ryan says that both parties, that we were told to get our act together in other words, both parties were told that. We were told and act like adults and work together. The time that was mentioned for starting was, we started back at 8.00 o'clock and it wasn't 9.00 o'clock and that's why I had difficulty getting here as well, on time. I just can't understand why we are here because yes it has all been resolved and the men are back at work at 8 o'clock and the Commission hearing was timed for 10 o'clock. It could have been called off and I actually thought that's what would happen.

PN17

MR RYAN: Well if I might it is a bit laughable for my friend to say he doesn't know why we are here. He is the one who pulled the men out from the site on Monday, and refused to go back to work yesterday and only complied with a direction an hour late this morning. I mean we only lodged the application after they refused the second time to return to work. Now there is a lead time in relation to these things. It was lodged with the Commission yesterday morning. We received a listing from the Commission yesterday evening. We weren't sure until this morning as to whether or not these employees would grace us with their presence at work today and so to suggest that we should have called these things off is laughable.

PN18

However, as I've already pointed out, we are not seeking orders today Commission and we simply repeat our request for the application, to have the matter stood over as per before.

PN19

THE COMMISSIONER: Is there is a health and safety disputes procedure in the agreement, I don't have it in front of me?

PN20

MR RYAN: Certainly Commissioner. There are a number of procedures in place. It is a standard safety related disputes procedure Commissioner in that employees should work in areas unaffected by any particular risk. Well again, that's another issue brought up by my friend. I didn't say that there was no health and safety concerns, I said that there was no imminent risk to health and safety. And certainly there could be no reasonable concerns over imminent risk.

PN21

In relation to the safety disputes procedure it is detailed in clause 18, safety, of the agreement. I'm afraid Commissioner I just don't have a copy for the Commissioner or my friend this morning. But I will take you through a couple of the more pertinent points. It says:

PN22

All employees are encouraged to contribute positively to project safety including ...(reads)... support other agendas.

PN23

It details the procedures that are in place on the project. It establishes safety committees. It says that:

PN24

No employee will be required to work in unsafe conditions where a safety problem ...(reads)... safety dispute.

PN25

This is clause 18.10:

PN26

Employees shall not leave the area unless directed to do so my management ...(reads)... rectification work.

PN27

That's the extent of it I suppose, Commissioner, well certainly the pertinent parts. Now in the circumstances part of those procedures were followed, to a degree. It was the union, I am instructed, that brought these safety concerns to the attention of the management. Management then proceeded to address their concerns and sought to rectify those concerns and rather than return to work the union and the employees decided to walk and as I am instructed one outstanding issue remained the following day which was an exhaust fan on a toilet block which they needed to wait for a part and an electrician to fix and I'm instructed that that's the reason why they refused to work on Tuesday, the entire day.

PN28

Now certainly these are not areas where work is going to be effected. Certainly it is the facilities, but I'm instructed that none of those issues are such that it would require, or such that any walking off the job is any way legitimate in the circumstances.

PN29

MR MILLER: Commissioner, Mr Ryan has got it wrong again. I mean he said that the union walked the men off the job. It was me that actually tried to keep them on the job, and I did say to them that the company had given a commitment to try and fix the problems and they would get on to it immediately. The men weren't happy with that and there was other outstanding problems which Mr Ryan hasn't informed you of. There's a supervisor, Croger his name is, has been abusing the men, swearing at them and calling them names and actually put this notice up in the toilet. I'd like to table this, I've got notes on the back of it, but he put this note up calling them grubs. So that offended the workers, it offended me as well and that's why the men had their backs up as well.

PN30

So it wasn't just the amenities problem this as an issue as well. It wasn't being addressed by the company and they still haven't addressed it I think. So that's the answer to that. Only the fan was a problem, that's not true. The only thing that had been fixed was that they had removed, out of this list here, they had actually removed the first aid box out of where it was because there was no access to it and the had put it in the amenities room. That's the only thing that had happened because we had done a safety walk.

PN31

If you would like to have a look at this Commissioner.

PN32

THE COMMISSIONER: It is probably not helpful to be regurgitating the old issues now. I'll have a quick look at this, but what I intend to do is just adjourn the matter generally and I'll keep some time free on the 24th and the parties can advise beforehand if it is necessary to actually make a formal listing. I just hope that at this time of the year some peace and goodwill can prevail and people will look forward to having their break. I'll note all that, thank you. If there's nothing that we can achieve today, I think I'll just adjourn the matter generally. Thank you. These proceedings stand adjourned.

ADJOURNED INDEFINITELY [10.42am]