C2004/1139, Transcript of Proceedings [2004] AIRCTrans 606 (13 February 2004)

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TRANSCRIPT OF PROCEEDINGS


O/N 187
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

DEPUTY PRESIDENT McCARTHY

C2004/1139
C2004/1140
C2004/1141
C2004/1142
C2004/1143

APPLICATIONS FOR AN ORDER TO
STOP OR PREVENT INDUSTRIAL ACTION

Applications under section 127(2) of the Act
by Andreco Hurll Refractory Services Pty Ltd
and Others for an order to stop or prevent industrial
action re the Hismelt Kwinana Plant Project.

PERTH

11.37 AM, WEDNESDAY, 4 FEBRUARY 2004

PN1

MR P. COOKE: I appear for the applicant employers in this matter. Appearing with me is MR S. FOY.

PN2

MR L. EDMONDS: I appear for the Australian Manufacturing Workers' Union.

PN3

MR T. KUCERA: I seek leave to appear on behalf of the Construction, Forestry, Mining and Energy Union.

PN4

THE DEPUTY PRESIDENT: Yes, leave is granted.

PN5

MS K. SCOBLE: Deputy President, I appear also for the CFMEU. I'm not appearing in this matter.

PN6

THE DEPUTY PRESIDENT: Okay. Look, I've got a series of applications, 127s, and there is also some section 99 applications that have been allocated to me. Given the requirements of the Act to deal with section 127 matters as quickly as practicable, I've listed the 127 matters only at this point. Mr Cooke?

PN7

MR COOKE: Thank you, sir. The genesis of this matter, sir, goes back to a discussion that was held - or a meeting that was held on the site by a number of employees of various contractors, with officials of the AMWU, CFMEU and I understand the CEPU where they on 15 January last month in this year, verbally requested, as I understand it, to Mr Foy of the CCI, who is the site industrial officer - CCI Site Industrial Officer, that the construction employees be permitted to take time off without loss of ordinary wages, when the ambient temperature in the metropolitan area reaches 37-and-a-half degrees celsius.

PN8

This request I am advised was made by a Mr McCartney of the AMWU, and Mr Kavanagh - for the record, K-a-v-a-n-a-g-h, that's how it is correctly spelled - of the CFMEU, and a Mr Gill of the CEPU. We understand each of those is either an official or an employee of the relevant unions discussed and that that request went forward as I said, on 15 January 2004. The following day Mr Foy telephoned each of the gentlemen and advised that the contractors had discussed the issue and would formally respond in writing and indeed, did so by way of correspondence dated 21 January 2004, wherein the contractors indicated that they did not agree with the idea or concept that stopping work at 37-and-a-half degrees was an appropriate way to manage heat street issues on the Hismelt Kwinana Plant Project and that there were more effective ways of dealing with potential problems that may arise when the ambient temperature rises.

PN9

The project, as the Commissioner's not otherwise aware, is the construction of an iron making plant for the Hismelt Corporation in Kwinana. It is located adjacent to Cockburn Sound. It is a coastal location, without pushing that description too far at all, where the contractors took the view that when temperatures rise then people should take account of a number of factors such as the type of work being performed, the location on the site as to where the work's being performed, whether shade was available. Other climactic factors such as the level of the humidity, whether or not there were prevailing breezes applying, whether work is being performed in confined or enclosed spaces, and individual tolerances and stress factors.

PN10

The contractors we say, sir, on the site have put in place a number of procedures to manage the heat or high temperature, high ambient temperature on the job and these have been discussed with the work force and with the representatives on occasions. Such as during the toolbox meetings, the regular toolbox meetings the contractors hold, they have been highlighting issues associated with heat stress, how to prevent heat stress and dehydration, how employees can manage and recognise if they may - or if they are affected by heat stress, or if their co-workers are similarly affected.

PN11

The contractor is reinforcing those messages. The daily pre-work meetings with the contractors planning work so that on days where hot weather is forecast work that is more strenuous may be perhaps performed in the cooler parts of the day or perhaps deferred. The contractors providing portable shade wherever possible, and providing ample supplies of things like sun brims, neck flaps, sun screens and as well as encouraging employees to keep up their intake of fluids. And that employees could take reasonable breaks during the work day if necessary to adjust to and cope with the ambient temperature.

PN12

So we say, sir, there are a range of strategies the contractors have actually put in place on the project to address the concerns of hot weather in the Perth metropolitan area, and on the Hismelt site in particular. Those strategies were, as I said, set out in correspondence sent to the State secretaries of the Metal Workers, the CFMEU and the CEPU, marked to the attention of Messrs Kavanagh, McCartney and Gill, back on 21 January.

PN13

Now, the remarkable thing about that correspondence, sir, is that it has to date been completely unanswered by each of those organisations. So they have never formally responded. They put forward a claim, they were advised they would get a formal response, they received a formal response, and that is the last we heard of it. So not a very professional way for an organisation or any of the organisations to deal with something that they say is an issue that is of concern to their membership. Nothing further really eventuates, sir, until yesterday when it was a relatively warm day and employees simply ceased work and left the site.

PN14

THE DEPUTY PRESIDENT: That is all employees?

PN15

MR COOKE: All employees of the contractors concerned, as I understand.

PN16

THE DEPUTY PRESIDENT: Yes. What time was that?

PN17

MR COOKE: It was a staggered approach, sir. But predominately between the hours of 11.30 and 12 yesterday. There wasn't a single mass walk-out, but the first group left at about then and the last about half-an-hour later. There had been some discussion on 22 January between a Mr Hudston, a Mark Hudston, H-u-d-s-t-o-n, of the CFMEU and Mr Wade of the CFMEU, in the CCI office. Mr Wade had made a comment at that meeting that: It doesn't matter what was put in the letter, because if the temperature reached 37-and-a-half degrees then the employees will make their own decision on whether to walk or what, and we take that to be leave the site, or whatever else to do.

PN18

So apart from that and one or two off-the-cuff comments from Mr McCartney who indicated that the Metal Workers were going to let Mr Gill of the CEPU formulate a response, or make a formal response. We have actually had no written response from any of the organisations to the correspondence that was sent to them outlining the procedures put in place by the contractors on the Hismelt site for the management of high temperatures or working on hot days.

PN19

The employees I'm advised, sir, have resumed normal work this morning and in the normal course of events that might lead one to say: well, is there industrial action occurring. Well not obviously as we speak. However, if one looks at the Bureau of Meteorology data, and there is a monitoring station at Medina which is slightly inland of Kwinana but in the general proximity, not far away. Now, if you look at the summary of the number of days where the temperature is going to exceed 37-and-a-half degrees, one would expect that in February there will be three in any given year - that is the mean, and that in March there will be one.

PN20

There have been years where there have been seven days in February and five days in March where there have been observations recorded, temperatures recorded at the Medina Monitoring Station, in excess of 37 degrees or higher. However, we are not aware that the employees actually contact the Bureau of Meteorology and ask for the reading for the Medina station. The practice that I'm aware of in parts of the commercial construction industry is that they go off a reading from the Perth metropolitan area, which is taken at the Mount Lawley Monitoring Station, where one gets a reading of an average of two days in February and two days in March each year exceeding 37.5 degrees celsius.

PN21

However, it has been as high as eight days in any year in February and five in March at the Mount Lawley station, so a total of 13 days, where temperatures of 37.5 or higher have been achieved or exceeded. So what we say, sir, is that there is a very real probability or possibility in the minds of the employers that given we are only in the first week of February, summer is not concluded the hottest part of the year has not yet concluded.

PN22

There is the ever-present likelihood that there is the potential for further industrial action over this issue later this month, or during next month. The problem the employers have, it is not as if the unions have sought to utilise the dispute settlement procedure set out in the relevant certified agreements, which is to be found, if one picks any of the CFMEU or AMWU agreements applying on the project, sir, clause 14 provides for project grievance resolution procedure.

PN23

THE DEPUTY PRESIDENT: These agreements totally replace any other instruments, do they?

PN24

MR COOKE: Yes, sir.

PN25

THE DEPUTY PRESIDENT: So there are no awards that - if there is any inconsistency.

PN26

MR COOKE: No, there is no residual operation of any award that might have an inclement weather calendar in it.

PN27

THE DEPUTY PRESIDENT: Yes. I see.

PN28

MR COOKE: Yes, sir. Further, sir, there are no daily-hired employees under these agreements. Employees are hired on a weekly basis, where they have a contractual entitlement to 38 hours ordinary pay. It is not a case that if people - as long as people are ready, willing and available to work for the 38 hours then they have a contractual entitlement to wages. So whether it is hot or wet, they don't lose, there is no potential for them to lose ordinary wages, if they are ready, willing and available to work by operation of any climatic condition.

PN29

But it is a matter or concern to the employers, sir, that the issue is raised by the unions in the middle of January, they received a response some six days later, a written response, a two-and-a-bit page letter. There has been no response by any of the organisations back to Mr Foy, in a formal sense, or certainly not in a formal sense to any of the employers affected by this industrial action, and then we have what could be seen as wildcat industrial action.

PN30

So it leads one to the view, sir, that if there is another incident or occasion or occasions between now and the end of March, where the ambient temperature in the Perth metropolitan area should exceed 37-and-a-half degrees, there is every likelihood that there will be a repetition of the behaviour that we observed yesterday. There has nothing put to the contractors by the unions or to CCI by the unions, to indicate that the behaviour of yesterday will not be repeated at some point in the future.

PN31

THE DEPUTY PRESIDENT: What was the temperature yesterday?

PN32

MR COOKE: I'm not precisely sure, sir. I heard a news report at 39.6. But I have had others tell me that it was different. So there is some precedent for seeking an order on the basis of the weather, sir, and I'll not go through the case law and 127s in detail, but there was a matter in 1999 on the Worsley Expansion Project between the CFMEU and Another, the other being the Metal Workers' Union, and United Construction Pty Ltd and Others, that oddly enough the problem was the exact reverse in the sense of being wet weather.

PN33

It was a decision of Commissioner O'Connor found at print R5412, delivered on 1 June 1999, where some seven employers sought an order because there had been communication, written communication, between the AMWU and the project managers, Kaiser Bechtel, indicating that there had been a resolution of a mass meeting. And that resolution was that:

PN34

If there had been no wet weather training put in place by 7 am and it was still raining at 11 am, then those workers not in dry areas of work will go home and claim payment for the rest of the day.

PN35

That is a quote from the correspondence and found in the decision. In that matter, Commission O'Connor was moved to make an order based on his knowledge and understanding and evidence that there was the prospect in June of each year, following through into July and August, that there would be the likelihood of rain in the South West of Western Australia and that that resolution standing would cause further - was basically a threat of further industrial action to occur on unspecified days.

PN36

That matter was actually overturned and appealed by a Full Bench. A decision found at print R7918, or volume 91 of the Industrial Reports at page 394. But it wasn't overturned on the basis that the Commission's finding regarding the threatened industrial action over inclement weather was an incorrect finding, it was overturned on the basis that the order went broader than the facts supporting the application. That it had prohibited all industrial action, not industrial action simply relating to inclement weather.

PN37

Now, in the matter before you today, sir, we would say there is no doubt that the jurisdictional pre-requisites are met. Each of these employers has employees covered by a Federal instrument, being a certified agreement. The certified agreements are within term, and they apply to the work in question.

PN38

There is industrial action that has occurred. There is a threat by the CFMEU and the AMWU against the employers that if the ambient temperature exceeds 37-and-a-half the people will cease working as they are required to do under the terms of the agreement and under the terms of their contract of employment. The trigger for that is not any action of the employer's part, the trigger for that will be the climatic conditions prevailing. So that is not an issue that the employer has any control over in an obvious sense, it is an ongoing threat of further industrial action.

PN39

Now the only way that can be dealt with we say, absent the union revoking - or the unions revoking and disavowing the threat that they have made is for the Commission to issue an order in the terms sought, that would prohibit a repetition of yesterday's industrial action.

PN40

THE DEPUTY PRESIDENT: Where do you assert and who made this threat?

PN41

MR COOKE: The threat, sir, and the evidence of Mr Foy, when it comes to it, that there was a discussion on 15 January 2004 and present were Mr Foy of the CCI, Mr McCartney of the Metal Workers Union, Mr Kavanagh of the CFMEU and a Mr Gill from the CEPU. That was when the threat was made, if they want to see it as a threat, it was they advised that that was the resolution of a meeting and that employees were going to take time off without loss of ordinary wages when the ambient temperature exceeded - or reached or exceeded 37.5 degrees celsius. It was those three officials that made the request.

PN42

THE DEPUTY PRESIDENT: How many employees at Hismelt?

PN43

MR COOKE: Approximately 200, sir.

PN44

THE DEPUTY PRESIDENT: Have we had a chance to have a look at what the long-range forecasts are?

PN45

MR COOKE: Only last night, sir. I think for the balance of this week there is no forecast above the low 30s. There is certainly none at the level of 37 or higher.

PN46

THE DEPUTY PRESIDENT: Is there any procedure or process explicit put in place for consultation between either the unions or employees and any contractors to consider what is to be done if it is hot weather?

PN47

MR COOKE: Well, there are two answers to that, two parts to that answer, sir. One is there is the grievance resolution procedure under the agreement, that if the employees have a grievance such as whether or not it is too hot to be carrying out some or all activities, there is a process to be followed under that procedure. Secondly, it was with a mind to that, that given the events of yesterday, sir, not only did we lodge the section 127 applications but we also lodged the conference applications.

PN48

Given that the correspondence was sent off to the unions two weeks ago and we've yet to receive any formal reply, that by convening some proceedings pursuant to section 99 might at least start to place on the record in some sense what the union's position is going to be - or is in relation to the issue, in a more formal sense. Given that the request was only made verbally, the response was given in writing, and there has been no certainly written - the response from CCI that was given on behalf of contractors was given in writing, but there has been certainly no further correspondence from any of the unions in reply to our correspondence.

PN49

THE DEPUTY PRESIDENT: Is there any Code of Practice or anything of that nature either generally or for construction sites specifically, issued out of Worksafe, are you aware?

PN50

MR COOKE: Not my knowledge, sir. But I would need to follow that up. I guess that sets out where we are this morning, sir. Subject to the advice of the unions, and as I said we would welcome a commitment that they have withdrawn their previously requested position on 37.5 degrees celsius. That would be one way of alleviating the issue, but failing that, we would say that we would seek to proceed with the matter because we say what they are seeking is outside of the terms of the agreement they freely entered into.

PN51

THE DEPUTY PRESIDENT: The terms of the order you are seeking? You didn't attach a draft order, I think you referred to, for want of a better term, a model draft order in terms of - - -

PN52

MR COOKE: I believe we did, sir. There seems to have been a degree of confusion in the registry. There was an application filed that actually set out the matter of the various agreements and was made on behalf of four employers. Then we actually attached individual orders relating to each employer and each of those orders was numbered individually.

PN53

THE DEPUTY PRESIDENT: Well, that doesn't seem to have to found its way to me. That is a draft order, is it?

PN54

MR COOKE: Yes,sir. There was application C1140.

PN55

THE DEPUTY PRESIDENT: Just a moment. Yes.

PN56

MR COOKE: Now that sets out what could be seen as the omnibus application with a reference to seven agreements and an application being made by four employers.

PN57

THE DEPUTY PRESIDENT: Yes.

PN58

MR COOKE: Then there are some grounds attaching to that. Then if one goes by way - to deal with the next matter, if one goes to application - there is an order for Theiss Pty Limited at the Hismelt Kwinana Plant, and that came back from the registry numbered as C1141.

PN59

THE DEPUTY PRESIDENT: Yes. I see, yes. So that is the order you're seeking.

PN60

MR COOKE: Yes, sir.

PN61

THE DEPUTY PRESIDENT: That is identical except for the relevant changes.

PN62

MR COOKE: It would be identical between the applications, sir, save the name of the employer and the unions.

PN63

THE DEPUTY PRESIDENT: For 12 months?

PN64

MR COOKE: Yes, sir.

PN65

THE DEPUTY PRESIDENT: Won't be above 37-and-a-half for the whole of 12 months, in some of those months, will it, Mr Cooke? Not in Perth anyway.

PN66

MR COOKE: I guess if one works in industrial relations long enough, sir, one develops an ambit mentality.

PN67

THE DEPUTY PRESIDENT: Perhaps at this stage unless there is anything further you want to put before proceeding, I might hear from Mr Edmonds and Mr Kucera.

PN68

MR COOKE: No, there is nothing further at the moment, sir.

PN69

THE DEPUTY PRESIDENT: Either or both.

PN70

MR KUCERA: Sir, it has fallen on me. The issue of the 37.5, sir, and I suppose it is a submission that you've perhaps been anticipating from us, We would simply say that the action that was taken yesterday was not industrial action, because we say it is an action that was based on a reasonable concern by the employee about an imminent risk to his or her health and safety. Then the other, the second limb of that I will go to in just a moment.

PN71

The issue of heat stress is well documented, and the strategy that is referred to in the correspondence, which I don't think you've got in front of you yet, sir, but it is a strategy that is appropriate to warm temperatures, whether they be 28 degrees or to 37.5 degrees. However, the view of the employees at the previous meeting on 15 January was is that in addition to that particular strategy that is raised in this correspondence, they wanted to see a situation where when the ambient temperature reaches 37.5 degrees, they could go home.

PN72

The first limb of the definition about action that is taken in relation to health and safety issues, is that the action is based on a reasonable concern by the employee about an imminent risk to his or her health and safety. That was a view that was conveyed to the company in the meeting between Mr Hudston and Mr Wade. They indicated to the company that it would be up to the employees.

PN73

Now, my instructions are, sir, that there were some employees that actually continued to work yesterday, that it wasn't a complete site shut down. Those employees exercised their rights to continue working. Then there was another group of employees, the large bulk of the work force, who decided that 37.5 degrees was too hot for them.

PN74

If we then go to the second limb:

PN75

The employee did not unreasonably fail to comply with a direction of his or her employer.

PN76

Well, the CCI in their correspondence has indicated the view of the employers is that work would continue as normal. Our argument in relation to that, sir, is that there was no direction to provide reasonable alternative work. All of the work is in the sun, it is all outdoors, it is all construction work and in the view of the employees, and that is what matters, the views of the individual employees, it was too hot for them to continue working.

PN77

And our argument, sir, is that the issue in relation to industrial action, is that it is not industrial action, it is action that is based on a reasonable concern regarding health and safety issues. If the Commission was not minded to take that view, and you were to look to the approach that Commissioner O'Connor took in the 127 application that occurred at Worsley, either its Mr Cooke's ambit mentality or - which he referred to, or he's misread some important parts of that decision which was decided on appeal.

PN78

But the terms of the order being sought does not confine it to action that is relating to action over work in the heat. The order's quite broad. It would seem to apply broadly to any industrial action and any industrial action that may occur at the site over a period of some 12 months. So the rights that are sought to be constrained by the orders, we would say, are quite significant. It places quite significant restrictions on the employees in relation to action that may ultimately be quite legitimate within the meaning of the Act. And this order that is proposed goes well beyond the dispute that is presently before the Commission.

PN79

In relation to processes of consultation, sir, because of the contractor's stated policy in the correspondence from the Chamber on the 22 January, there simply isn't a procedure whereby consultation on hot days takes place. Where the issue of inclement weather is raised on, for instance CBD city construction sites, there is ongoing consultation between health and safety site representatives and management about the temperature.

PN80

There is also agreement on where the temperature is taken. For instance, it might well be that Medina is the most appropriate place by which you take the measure. Because our view in relation to the issue of inclement weather is that temperatures have to be taken having regard to the site, rather than the temperature in Mount Lawley. It is a site measure that should be taken.

PN81

Now in the absence of a consultation mechanism, and we say that there isn't one there relating to inclement weather, what happens is that it opens up arguments about what's the temperature at the site. And so it is then left to individual employees to make their own phone calls to find out what the temperature is. It supports our argument, sir, that ultimately the decision that was made by employees was a decision that was made by them without the involvement or without the consultation of their site representatives and what-not. It is perhaps an appropriate avenue that we should explore in terms of a resolution, that there is consultation on the site as to what is an acceptable temperature and what isn't.

PN82

THE DEPUTY PRESIDENT: Well that might vary the - the effect of that might also - I think Mr Cooke outlined, it would depend on the type of work that is being performed, where it is being performed, and it might vary from, if not contractor to contractor, to precise location and circumstances of where the work's being performed by particular individuals.

PN83

MR KUCERA: My instructions are though, sir, at the moment at the present time it is - the conditions in terms of heat stress are uniform across the different contractors.

PN84

THE DEPUTY PRESIDENT: Because they are all - what, are you asserting that all of the work's being performed in fairly identical circumstances?

PN85

MR KUCERA: Yes, that is what my instructions are, sir.

PN86

THE DEPUTY PRESIDENT: I asked the question of Mr Cooke, are you - other than the CBD practices, are you aware of any code of conduct or anything of that nature that is available?

PN87

MR KUCERA: It is my understanding that there is a generic code of conduct that Worksafe has issued. But on that, sir, we'd say that the generic code of conduct obviously applies to a range of temperatures. And then in relation to 37.5, then that is when they say work stops. But that is a practice which seems to have been adopted in the metropolitan area, and because this is a major project being conducted in the metropolitan area, the employees have that expectation that what occurs in the central business district would be equally applicable to them in Kwinana.

PN88

THE DEPUTY PRESIDENT: Well, they should get the sea breeze in Kwinana quicker than they get it in Perth, shouldn't they?

PN89

MR KUCERA: But, sir, the point being obviously then is that if you take your temperatures having regard to the particular characteristics of the site, then it might well be that you don't go home in Kwinana. Whereas if you're on a construction site in the CBD or closer to Mount Lawley, you will go home. And the difficulty arises is that if you don't have a mechanism whereby site safety representatives and management have an agreement as to where temperatures are being taken, then employees use their mobile phones to contact the places that do have the temperature at their fingertips.

PN90

THE DEPUTY PRESIDENT: Yes. What do you say about the threat, Mr Kucera, the asserted threat, if anything?

PN91

MR KUCERA: Well, ultimately, sir, in terms of the asserted threat, we would say that, again it is an issue that is ultimately determined by the employees themselves. So in terms of action that is taken place today, there is no industrial action that is happening. And I can't necessarily agree with the submission that it is threatened, impending or probable, simply because it might well be that the parties are able to reach agreement as to how these issues are to be dealt with into the future. And so there perhaps won't be any further action in the future.

PN92

The issue of the inclement weather, and I suppose this is the difficulty that is created when you reach stand alone industrial agreements that apply to employees who are equally covered by awards which contain inclement weather provisions, is that you might legally dispose of those provisions in awards, but you don't dispose of the employees expectations that those standards continue to apply on the project that they are working on.

PN93

And so our view, sir, is that an order wouldn't be an appropriate way to resolve this matter. Rather I've noticed that there are some section 99 application that have been lodged. Perhaps that might be a more appropriate mechanism by which this matter can be dealt with. Our suggested course would be to adjourn this application, sir, so that those matters can be ventilated and if the applicants wish to pursue that application then that is something that perhaps could be done after the section 99 applications have been exhausted.

PN94

THE DEPUTY PRESIDENT: Yes. Thanks, Mr Kucera. Mr Edmonds, do you have anything to add?

PN95

MR EDMONDS: Yes, sir. Thank you, sir. I adopt those submissions to a certain extent, sir. I would also make a further point, sir, that it is an absurd proposition for the employer to put that the - - -

PN96

THE DEPUTY PRESIDENT: Sorry, I didn't catch that.

PN97

ME EDMONDS: A difficult proposition for the employer to put, that the employees should use the grievance procedure, sir, on days where the temperature does become substantially hot, sir, and use the grievance procedure to sort out those particular issues on those day, sir. Because it would be certainly fair to say it would take longer than one day to exhaust the grievance procedure, sir in circumstances where the employees are concerned about their health and safety from staying on the site, sir, from continuing to work in those temperatures. It is appropriate that they take what action they need to take to protect themselves.

PN98

I agree with the submissions, sir, as to the way to proceed, sir. I think that with the section 99 in place, sir, if that could be dealt with promptly this week, sir. There is no imminent risk, I suppose, of the temperatures exceeding 37-and-a-half degrees at this point in time. If we could deal with the section 99s this week, sir, hopefully we could have a procedure in place before the temperature did reach that height again. With respect to the order, sir, I would point out that despite the assertions of Mr Cooke that the order issued by Mr O'Connor was overturned on appeal because it dealt with issues larger than just the weather. He then seeks orders in the same terms as that order overturned on appeal to the Full Bench.

PN99

I would also say, sir, that the orders that he's seeking, sir, seek to bind all the employees concerned. I myself haven't had an opportunity to go through and check all of these employees against our membership lists, but I would say, sir, if he seeks orders against all the employees individually, the regulations of the Commission prescribe that those draft orders and the application should in actual fact be served on all employees intended to be bound by the order. As far as I understand, that hasn't been done, sir, to the extent the orders seek to bind each individual employee. So I'd say that it shouldn't, and the order shouldn't issue in those particular terms.

PN100

THE DEPUTY PRESIDENT: Yes thanks, Mr Edmonds.

PN101

MR EDMONDS: Thank you, sir.

PN102

MR KUCERA: Sir, there was one further additional submission that I wish to make. I've just received some instructions. The resolution as I understand it that was from the employees that has been referred to in Mr Cooke's submissions, was that the employees would campaign to go home at 37.5 degrees where it is 37.5 degrees at the site. Campaign is one thing, and we'd say that there is an important distinction between campaigning for a resolution at that particular point and actual industrial action in support of it. And so in that sense, we would say it supports our argument that there is no action that is at this stage threatened, impending or probable. As I said before, the submission that we advance is that it was to be left to employees as to what they do when it reached that particular temperature.

PN103

THE DEPUTY PRESIDENT: Yes. Thanks, Mr Kucera. Mr Cooke, subject to what you say, what I'm inclined to do in the way you say you may want to proceed, what I'm inclined to do is to adjourn the 127 proceedings, but leave the applications open so that should there be a circumstance arise that you want to agitate those applications, then the formalities of filing etcetera don't cause any delay in having the matter dealt with. And to either direct the parties to pursue the issues in consultation, either with or without the involvement of the Commission. I'm relaxed about that. To see whether the underlying issues can be resolved. Do you have any view on that approach or would you prefer to have evidence on the record now, and that to be considered in the light of that evidence of whether orders should issue?

PN104

MR COOKE: Well there is a couple of things that I would just like to deal with briefly, sir. I suspect that what I would also like to do is seek a brief adjournment to seek some instructions on whether or not the employers would believe an adjournment as you've outlined would facilitate further discussions between the parties would be of some value. But there are just some things that the unions, particularly Mr Kucera, said that really need to be dealt with. There is a procedure, and I was remiss not to raise it earlier, clause 31 of the agreement provides for a procedure for dealing with safety issues. Clause 31 of each of the agreements, I should say.

PN105

Now to the extent that the unions come before you this afternoon, sir, and seek to stipulate that this is indeed some style of safety issue, then it is crystal clear that there is an agreement in place to deal with that. And to pick up Mr Edmonds' point, it is not a procedure that requires days to implement. The procedure which was agreed between the unions and the employers looks at whether work is safe in particular areas, and then at 31.9:

PN106

Should all work be deemed to be unsafe, and if you could reach such a point, the employees will not leave site, but will remain in either the site sheds if safe to do so, or an agreed alternative safe location.

PN107

Now the crib huts, as I am advised, are air-conditioned. So if there was the belief that Mr Kucera referred to, that there were some people reacting because of some concern of an imminent risk to their health and safety under the Occupational Health and Safety Act, then they didn't need to leave the site. They could have gone to the crib huts, sat in air-conditioned comfort and waited for the heat to pass and the sea breeze to arrive.

PN108

THE DEPUTY PRESIDENT: Did it arrive yesterday?

PN109

MR COOKE: About 12 am - 12 pm I'm told, sir, down at the location - down at Hismelt. Again, the fact of the matter is that the heat did not - there was a maximum temperature reached and it certainly didn't last all day, in the scheme of things. It is not the case also, sir, that as Mr Kucera submitted, that all work is being carried out - that it is identical conditions under which all work is being performed. I mean, to state the obvious, some of the plant and equipment is air-conditioned. Now I acknowledge that if people servicing that, such as a crane, will need people working with it, riggers and dogmen. But it is not the case that all people are working under identical circumstances.

PN110

And that is the extreme example, but it is simply wrong to submit otherwise. It is also, put bluntly, an illogical position to put forward to say that at 37.4 degrees celsius everything is okay, and that 37.5 degrees celsius, one-tenth of a degree movement, then all of a sudden it becomes unsafe. I mean, I don't think that could seriously be contemplated by anyone who passed the second grade at education. It is not the case that all the awards that were replaced by this agreement had inclement weather provisions within them. The Metal Trades Award doesn't, the Engine Drivers, Building and Steel Award doesn't. And there are others that don't. So where one could develop an expectation based on awards that apply to other people would again seem to be drawing a reasonably long bow. What we - - -

PN111

THE DEPUTY PRESIDENT: There is no inclement weather clause in the metal trades?

PN112

MR COOKE: Not a one. Not one in the - - -

PN113

THE DEPUTY PRESIDENT: Electrical contracting?

PN114

MR COOKE: Electrical contracting one, has one that applies, from memory, sir, to commercial building work in the Perth metropolitan area.

PN115

THE DEPUTY PRESIDENT: I see. So, the only one that has an inclement weather clause is the National Building Trades Construction, is it?

PN116

MR COOKE: Yes, sir. That would be the only one that - the employers party to this application, and if you looked at the awards that might have otherwise applied to them absent this agreement, that would be the one that springs to mind.

PN117

THE DEPUTY PRESIDENT: Yes.

PN118

MR COOKE: What I would seek to do, sir, is to have a brief adjournment perhaps for no more than 10 minutes, to seek some instructions from the employers as to how they wish to proceed. Whether they want to put evidence or whether they would seek to have the matter adjourned, leave it open and seek some discussion with the unions.

PN119

THE DEPUTY PRESIDENT: Well as I just emphasised, Mr Cooke, as you're probably familiar, it is my usual practice to deal with 127 applications and either have orders issue or the application dismissed. The circumstances of this particular application I'm more inclined if in the circumstances to - if it is not your wish to have it fully and completely dealt with now, to leave them open rather than either issue orders or have them dismissed. But if you have instructions or if it is your desire to not progress the 127s today, then I would be inclined to simply leave them open, subject to what Mr Edmonds and Mr Kucera said. But from what I'm inferring what they said earlier, that they wouldn't be adverse to that.

PN120

MR COOKE: Thank you, sir. Perhaps if we could have a brief adjournment, and I will seek some instruction on the point.

PN121

THE DEPUTY PRESIDENT: Yes, the matter is adjourned.

SHORT ADJOURNMENT [12.24pm]

RESUMED [12.42pm]

PN122

MR COOKE: Thank you, Deputy President. I have sought instructions from the employers. We would be pleased if the matter could proceed as follows. That these applications, the section 127 applications, be adjourned sine die. Point 1. Point 2, that each of the unions respond in writing to the CCI correspondence no later than the close of business tomorrow and perhaps a copy of that response to the Commission. And that, thirdly, if it suits the listing availability of the Commission, to convene a section 99 conference arising from the applications filed pursuant to section 99 by the employers yesterday on Friday.

PN123

THE DEPUTY PRESIDENT: Yes. Mr Kucera, Mr Edmonds?

PN124

MR EDMONDS: Yes, sir. Thank you, sir. That is certainly an appropriate course of action, sir, as far as we see it.

PN125

THE DEPUTY PRESIDENT: Yes.

PN126

MR KUCERA: Yes, sir, we are happy to proceed in the manner outlined.

PN127

THE DEPUTY PRESIDENT: That is the approach I will adopt, Mr Cooke. And I am assuming by the acquiescence of Mr Edmonds and Mr Kucera that they will respond to the correspondence that was sent to them by close of business tomorrow. I don't think a direction in that regard is needed, given their agreement to that approach. I will endeavour to convene a section 99 conference on Friday, should that be necessary. And when I say, should that be necessary, unless I am advised otherwise that it is not necessary. The 127s, I will simply adjourn and should they be requested to be re-activated, they will be with a very limited time frame. I would have to say, Mr Kucera and Mr Edmonds, I would expect that there would be no capacity for any argument that there was insufficient opportunity to be prepared for any reconvention of the 127 applications, should that arise. I think there is nothing further I need to say at this point. Is there anything you want to add, Mr Cooke, or - - -

PN128

MR COOKE: No, sir.

PN129

THE DEPUTY PRESIDENT: I will adjourn on that basis.

ADJOURNED INDEFINITELY [12.45pm]