C2004/1627, Transcript of Proceedings [2004] AIRCTrans 623 (13 February 2004)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 4, 179 Queen St MELBOURNE Vic 3000
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TRANSCRIPT OF PROCEEDINGS

O/N 6031
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT ACTON

C2004/1627
C2004/1628

DON MATHIESON AND STAFF

and

CONSTRUCTION, FORESTRY, MINING
AND ENERGY UNION and ANOTHER

Notification pursuant to section 99 of the
Act of a dispute re alleged prevention of
employees entering various sites by CFMEU
organisers

APPLICATION FOR AN ORDER TO STOP
OR PREVENT INDUSTRIAL ACTION

Application under section 127(2) of the Act
by Don Mathieson and Staff for an order to
stop or prevent industrial action

MELBOURNE

1.09 PM, THURSDAY, 5 FEBRUARY 2004

PN1

MR D. BLANKSBY: I am from the Glass and Glazing Association representing Don Mathieson and Staff Glass and I have with me MR K. TROTMAN, the manager of the laminating plant and MR D. MATHIESON, the manager of glazing operations.

PN2

MR R. WAINWRIGHT: I appear for the Construction, Forestry, Mining and Energy Union, Construction and General Division.

PN3

MR D. EVANS: I represent the CFMEU Furnishing Division.

PN4

THE SENIOR DEPUTY PRESIDENT: Mr Blanksby.

PN5

MR BLANKSBY: Thank you, Senior Deputy President. I refer to first of all the section 99 application which we submitted and give some background that - first of all to correct the EBA where referred to in the documentation as EBA 2000 should read 2003 and there is also what is called the Mark II agreement which is for glazing operations.

PN6

THE SENIOR DEPUTY PRESIDENT: So, what, it is the Don Mathieson and Staff Glass Pty Ltd Enterprise Agreement 2000, is it?

PN7

MR BLANKSBY: Yes, it should have read Mark II Enterprise Bargaining Agreement 2003.

PN8

THE SENIOR DEPUTY PRESIDENT: Right. Yes.

PN9

MR BLANKSBY: Senior Deputy President, the employees of Don Mathieson and Staff have been undertaking work on four building sites within Melbourne, one being the BIO 21 Baulderstone site at Flemington Road, Carlton, the Pro-Built site at Chadstone Shopping Centre, Chadstone, the Grocon Queen Victoria site and the Melbourne Entertainment site at Melbourne Park. The employees have been prevented from working at the above sites under instructions from different organisers. I have the names of Lana Clark, J. Flynn and Bill Oliver of the CFMEU Construction Division and Denis Evans, an organiser of the CFMEU-FFPD - the Victorian FFTS Branch.

PN10

On Monday, 2 February, on the Pro-Build and the Baulderstone sites, the Monday and Tuesday there has been work stopped and on Wednesday and today on all four sites. The reason given for the stoppages from lunchtime on Monday was that the CFMEU requested to - evidence of the red card training registration and I offer up as evidence exhibit A and exhibit B which is the Foundations for Safety Construction Industry Induction Agreement and the communique to the Victorian Construction Industry which relates to this training.

EXHIBIT #D1 FOUNDATION FOR SAFETY CONSTRUCTION INDUSTRY INDUCTION AGREEMENT

EXHIBIT #D2 COMMUNIQUE TO THE VICTORIAN CONSTRUCTION INDUSTRY 11/11/2003 REGARDING FULL IMPLEMENTATION OF THE CONSTRUCTION INDUSTRY BASIC OHS INDUCTION TRAINING AGREEMENT

PN11

MR BLANKSBY: Thank you, Senior Deputy President. The implementation of red card for the short term for the construction industry OH&S training is related to these documents, the first one being the D1, the Foundations to Safety program which outlines the program agreed to and I bring your notice to the last page on this where signatories to this agreement are the Construction, Forestry, Mining and Energy Union with the divisions we are referring to today. On the communique, which is D2, I refer the Commission to the background section on page 2 which is highlighted for you where it states that the red card scheme is a recommendation only to employers and to the industry from the Victorian WorkCover Authority.

PN12

I have spoken with the chairman of the Foundations to Safety training program, who is Geoff Thomas, the Director of Construction Utilities and Chair of the Foundations for Safety from the Victorian WorkCover Authority, who has confirmed with me the things I am saying today which are in their communications. If we then move on in that communique document to page 5, and you have highlighted the second paragraph, they appeal to all principal contractors and sub-contractors to have this training done.

PN13

The training has been on the table for some time and is - by the agreement was to be completed by 1 February 2004. Due to the backlog of, I believe, several thousand people to be trained it has been agreed that if people have registered for the training and have proof of this registration they would be accepted onto - as having committed to the training and not be held up on any matters and paragraph (2) states:

PN14

We reiterate the agreement's principles that as an industry wide induction scheme it doesn't matter which of the signatory organisations provides you and your workers with their proof of training cards as all cards issued by any Foundations for Safety signatory members are automatically recognised by all members and fully portable throughout sectors of the Victorian construction industry.

PN15

And later on down that page, the paragraph heading:

PN16

Determine that the agreement is to be fully implemented on construction sites -

PN17

the third para down -

PN18

In the event that any Victorian construction industry employer or self-employed person has not yet had themselves or their employees provided with construction industry basic ...(reads)... training has been scheduled to be delivered at the earliest possible opportunity.

PN19

It also states in the construction industry agreement, in the second last page of that document - or on the last page:

PN20

The signatories to the Foundations for Safety and also the people that will be conducting the training -

PN21

listed amongst that group is the Housing Industry Association. So with that bit of background what happened on the site on Monday and then subsequently on the other days was that Don Mathieson and Staff Glass were prevented from working on the site because they did not - because they had registered and only had evidence that they are going to do the course with the Housing Industry Association. They were advised by the CFMEU that that was not good enough and would not be accepted despite the signatories to the agreement and to try and - and they should do their training with the CFMEU.

PN22

To try and expedite matters Don Mathieson and Staff Glass agreed to this, cancelled their training with HIA and have registered with the CFMEU to do the training. No receipt or anything has been issued yet as the - I understand the construction training department is not back until mid-February - well, haven't yet started back which may be the reason for not having the receipts issued. So having been - having the Housing Industry Association registration deferred the company succumbed to the pressure and said, right, we will register with you and paid their money and then said they could start work.

PN23

However, when it was determined that the time they had been off work that they wouldn't be paid they ordered them back into the shed again and they have been there since Monday lunchtime through to and are still there today. So no work has taken place on the Monday to Thursday on the first two sites and from the Wednesday on the Grocon and Entertainment Centre site. Senior Deputy President, this clearly breaches the intent of the Foundations to Safety agreement which the union is a signatory to and it also breaches several other things that we rely on - one is clause 12 of the Glass and Glazing Association - sorry, the Glass Merchants and Glazing Contractors General Award which is the procedures for avoidance of industrial disputes.

PN24

It breaches clause 13 of the enterprise bargaining agreement for the avoidance of industrial disputes procedure where none of those steps has been taken along with it and also breaches the Workplace Relations Act with section 187 where they have demanded that they be locked in the shed until the people are paid. Now, Senior Deputy President, I believe that outlines the section 99 industrial dispute and would you like to deal with that before I move on to the section 127?

PN25

THE SENIOR DEPUTY PRESIDENT: Let us hear from Mr Wainwright first. Just by the by, Mr Blanksby, the exhibit D1, the only signatories I have got to that are the Air Conditioning and Mechanical Contractors Association of Victoria and the Civil Contractors Federation.

PN26

MR BLANKSBY: Okay. You might have one of our - sorry, I will pass this one up. I think there is a page missing. It is the last two pages.

PN27

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Wainwright.

PN28

MR WAINWRIGHT: Thank you, your Honour. Certainly we can confirm that we are a signatory to the Foundations for Safety and we are very happy that we are. Your Honour, I just want to outline that - I do want to make some comments on the record about what has occurred. I would then request that the parties go into conference because I think that will accord us the best opportunity of overcoming the difficulties that are currently being experienced. I thank Mr Blanksby for handing up D1 and D2 because they are certainly two documents that I wish to rely on in my submission to you.

PN29

The first thing to point out, your Honour, is in D1 at page 3. You can see there in the middle of the page there is a paragraph headed, Duration of the Construction Industry Basic Induction Training Course, and you can see, your Honour, that what the parties to the agreement have undertaken to do when they provide training is to provide basic induction training for a duration of between six and eight hours. So the agreement itself has gone to both what will be in the syllabus and how long people expect that that will take to do it.

PN30

Certainly the best practice suggestion is to take eight hours, which I understand the CFMEU provider training takes. Some providers are doing it in six hours. So you can see that when you look at the induction agreement that question of duration is dealt with at the first instance and it is a fairly important point to note, we submit. In relation to D2, your Honour, we think that it is important to note point 4 of that document which deals with what those general induction achieve which really goes to - - -

PN31

THE SENIOR DEPUTY PRESIDENT: Where is that, Mr Wainwright?

PN32

MR WAINWRIGHT: Point 4 on page 6 of 15; certainly in the copy I am using.

PN33

THE SENIOR DEPUTY PRESIDENT: Yes. No, I have got 10 pages in this D2.

PN34

MR WAINWRIGHT: Yes. Okay, well, I might just go straight to then page 8, your Honour: How will WorkSafe deal with employers who want workers - whose workers have not undergone the basic OH&S training. And it talks about some of those points that Mr Blanksby touched upon - what happens if you turn up at site beyond the three year lead in that we had for the red card training on 1 February 2005[sic] you don't have your red card and you are not booked in, and it certainly outlines there how WorkSafe, as a government instrumentality, can deal with those issues.

PN35

We say that that is a relevant factor for you to consider when the company comes here under section 99 and section 127 applications because we say that that is what has in fact occurred and there is a very good reason why we say that that is what has occurred and the reason is provided by the training providers themselves, the HIA, and, your Honour, perhaps at this juncture I will hand up two documents from the HIA and seek to have that document marked, your Honour.

EXHIBIT #W1 E-MAIL TO VARIOUS E-MAIL ADDRESSES FROM BARRY PADGHAM DATED 22/01/2004

PN36

THE SENIOR DEPUTY PRESIDENT: Is the document attached a separate document?

PN37

MR WAINWRIGHT: No, the document attached is the attachment that Mr Padgham talks about in his e-mail. I have another document to hand up, your Honour, which is one I referred to too. What I think that that e-mail tells us is that the HIA, as a training provider under the agreement, is experiencing a heavy workload with regard to people who want to receive red card training from them and they are talking about ways in that e-mail to speed up the process. So as you have seen earlier, your Honour, they have agreed to a certain thing. They are saying in this e-mail then in January of this year our workload is very heavy, we have got a lot of people on the list, how are we going to get this done, which leads us to the second document that I would seek to hand up. I will seek to have that marked, your Honour.

PN38

THE SENIOR DEPUTY PRESIDENT: Yes, I am just reading the first one.

EXHIBIT #W2 DOCUMENT TO ROBERT KRAULL DATED 02/02/2004 RE OH&S INDUCTION COURT CONFIRMATION

PN39

MR WAINWRIGHT: Thank you, your Honour. I think basically it is just the last piece of the jigsaw puzzle that we are dealing with and that is that the HIA have informed the company that in regard to the training that the company is seeking to have delivered under the agreement they are wanting to provide that training over a period of four hours and that is the particular problem that this company has and I think we are willing to say, well, certainly the company seems to have done belatedly what is required of it by booking its people in. The HIA as the training provider doesn't seem, on all of the evidence before all of the parties, seem willing to provide training in accordance with the agreement.

PN40

So I think what you take from that would you, you know, look at it from the perspective of WorkSafe being a government regulator and a party to the agreement or from the perspective of either division of the CFMEU being parties to the agreement is that this company has not organised to have training in accordance with the agreement. That leads to a problem because as you have seen WorkSafe's guidelines say then no work should proceed because all industry parties have stated that it is important that by February 2004 parties either ensure that their employees have been trained and have the red card or ensure that they are booked into an accredited course.

PN41

The problem that this company has is neither of those things has occurred. So now that we have identified - - -

PN42

THE SENIOR DEPUTY PRESIDENT: Has not booked into your course?

PN43

MR WAINWRIGHT: I am not aware if they have booked into our course. What I am saying to you, your Honour, is that arriving at work on 2 February 2004 across the industry, and it has been a huge problem - but as I say to you people have had three years to lead in - people had to demonstrate two things. They had to either pull the red card out of their pocket that said they had done the training or they had to show that they were booked in to do the training and that could be three months down the track, whenever.

PN44

What we are saying is all of the evidence showed that they were booked into a course at the HIA that didn't meet the requirements of the red card induction that the HIA had agreed to provide. If they had booked into a course at the HIA that met those requirements, fine and good, HIA are a signatory to the agreement, but that hadn't occurred. That led to, on each of the building sites that has been mentioned, that led to a problem on Monday morning. Now that we have kind of fleshed out some of those issues, your Honour, it is a bit - I suppose it is a bit technical. I would suggest that we go into conference to discuss how we overcome the issue.

PN45

THE SENIOR DEPUTY PRESIDENT: Mr Blanksby, are you content with that course?

PN46

MR BLANKSBY: Yes, Senior Deputy President. I would like to point out on the fax to Mr Barry Padgham one of the addressees is Geoff Thomas of WorkCover Australia. That is the chair of the Foundations to Safety Committee who advised me at 5.15 last night that the HIA course was accredited and did meet the requirements. Now the mere fact that the union don't believe it does when all the documentation says it does, we have no knowledge that it doesn't. So, first of all I dispute whether the Foundations to Safety should be saying the course does or does not meet the requirements, not the CFMEU, one division of them, the Construction Division. That is the first point.

PN47

DMS have booked into that - if you read the facsimile on the second page that I am referring to on induction training it mentions on the third paragraph down:

PN48

I suspect if we analyse the six hour course, for instance, and deducted tea and lunch breaks and the use of additional video clips the actual instruction time will relate back more or less to a course of four hours.

PN49

And two paragraphs down they say:

PN50

A major factor is to ensure the quality of training is not compromised in any way.

PN51

We believe that we have registered with the Housing Industry Association training who the chairman of the Foundations to Safety Committee advises me as at 5.15 last night on the phone when he returned my call that they met the requirements. Don Mathieson and Staff Glass, after being pressured to make things get on with the job, said, okay, we will register with your course, and have cancelled their registration which was four the 6th of the 2nd and 13th of the 2nd with HIA and they are now booked with the CFMEU course, after some undue pressure I believe, and have been registered and accepted by the CFMEU by fax on 4 February. They have booked the 27 workers in for their training.

PN52

All that taken into consideration the other things haven't been complied with. We believe we have met the requirements of that. Having had some dispute on it we have said righto, we will tap the mat and give our money to the CFMEU rather than the HIA - that is by the by. We are then stopped on site and they are breaching the Workplace Relations Act, the award, the enterprise agreement and the general disputes procedures and we believe that this story that is put up here on whether the HIA course is good enough or not - the Authority says it is but we are not going to argue about that because we have already booked for the other course.

PN53

In the meantime we believe there has been illegal stoppages made on site. It is indicative of the union and the way they have behaved in the last 12 months and we still intend to seek a section 127 order for two months to ensure that there is no more disruption to work whilst this induction training is taking place and so that we can get on with working. At the moment the staff are not being paid as per the Act and they have been told to sit in the shed and not work.

PN54

THE SENIOR DEPUTY PRESIDENT: So what do you say about going into conference?

PN55

MR BLANKSBY: Well, we can go into conference but let me be quite clear, we still will be seeking the section 127. Yes, we are prepared to go into conference, Senior Deputy President.

PN56

THE SENIOR DEPUTY PRESIDENT: I will adjourn into conference.

PN57

MR WAINWRIGHT: Well - - -

PN58

THE SENIOR DEPUTY PRESIDENT: Hang on - yes, Mr Wainwright.

PN59

MR WAINWRIGHT: Well, Commissioner, there were some submissions that were made there that I should respond to on transcript because I think they were bordering on the ridiculous and certainly unhelpful. The first one is the suggestion that there was undue pressure to receive training from the CFMEU rather than the HIA. That is ridiculous. What we were saying was we believe we are signatory to an agreement, we think the agreement should be adhered to. Training that meets the requirements of the agreement should have been provided either any time in the last three years or have been provided for as of 2 February.

PN60

That is all we are interested in seeing. Who provides that training from amongst the accepted providers is neither here nor there. So I reject outright the suggestions and the aspersions that have been made by the representative for the applicant. The second thing is that there seems to be some suggestion that there is a request to be paid for time when people are engaging in industrial action. We say that there has been no industrial action here at all. The submission is simply not relevant.

PN61

What has happened here is that in accordance with the Foundations for Safety agreement people turned up at work on 2 February without meeting the requirements of that agreement and they were not able to work on those sites and the builders in those cases had a responsibility to make sure that that is what occurred. So there should be no suggestion that there is any breach at all of the Workplace Relations Act and as I say we are here with an open mind to try and fix the problem but if people are going to start to take unreasonable stances then I think it is going to be difficult to do that.

PN62

THE SENIOR DEPUTY PRESIDENT: I will adjourn into conference.

SHORT ADJOURNMENT [1.37pm]

RESUMED [2.26pm]

PN63

THE SENIOR DEPUTY PRESIDENT: I have discussed this matter in conference with the parties. In light of that I issue the following recommendation:

PN64

1. That DMS Glass Pty Ltd pay the employees who did not work on Monday, 2 February 2004 and up to 2 pm on Tuesday, 3 February 2004.

PN65

2. That DMS Glass Pty Ltd not pursue its section 127 application.

PN66

3. That all employees resume work at 7 am on Friday, 6 February 2004.

PN67

I will now adjourn.

ADJOURNED INDEFINITELY [2.27pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #D1 FOUNDATION FOR SAFETY CONSTRUCTION INDUSTRY INDUCTION AGREEMENT PN11
EXHIBIT #D2 COMMUNIQUE TO THE VICTORIAN CONSTRUCTION INDUSTRY 11/11/2003 REGARDING FULL IMPLEMENTATION OF THE CONSTRUCTION INDUSTRY BASIC OHS INDUCTION TRAINING AGREEMENT PN11
EXHIBIT #W1 E-MAIL TO VARIOUS E-MAIL ADDRESSES FROM BARRY PADGHAM DATED 22/01/2004 PN36
EXHIBIT #W2 DOCUMENT TO ROBERT KRAULL DATED 02/02/2004 RE OH&S INDUCTION COURT CONFIRMATION PN39