AG2004/1823, Transcript of Proceedings [2004] AIRCTrans 925 (17 March 2004)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 4, 179 Queen St MELBOURNE Vic 3000
(GPO Box 1114 MELBOURNE Vic 3001)
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TRANSCRIPT OF PROCEEDINGS


O/N 6262

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER BLAIR

AG2004/1823
AG2004/1824
AG2004/1835
AG2004/1836
AG2004/1837

LOTHWAY TBS PTY LTD
(ESSO SITES) ONSHORE
MAINTENANCE AGREEMENT
2000-2003

WORK HIRE (ESSO SITES)
ONSHORE MAINTENANCE
AGREEMENT 2000-2003

ETRS PTY LTD (ESSO SITES)
ONSHORE MAINTENANCE
AGREEMENT 2000-2003

WORK HIRE (ESSO SITES)
ONSHORE MAINTENANCE
AGREEMENT 2000-2003

LOTHWAY TBS PTY LTD
(ESSO SITES) ONSHORE
MAINTENANCE AGREEMENT
2000-2003

Applications under section 170MH of the Act
by Lothway TBS Pty Ltd and Others for
termination of agreements

MELBOURNE

1.13 PM, THURSDAY, 26 FEBRUARY 2004

PN1

MR J. HOY: I am from the Australian Industry Group, appearing on behalf of ETRS Proprietary Limited, Quality Maintenance Services Proprietary Limited and Lothway TBS Proprietary Limited. With me I have MR P MOGRIDGE from Quality Maintenance Services, MS J. CHERRY from Lothway TBS and MR I. McDONALD from ETRS Proprietary Limited.

PN2

MR M. ADDISON: I appear on behalf of the Australian Manufacturing Workers Union, together with MR S. DODD, MS K. WILD and the shop stewards from the sites.

PN3

MR T. LEE: I appear on behalf of the Australian Workers Union, with three delegates from the three sites.

PN4

MR P. MOONEY: I appear on behalf of the CEPU Electrical Division, and also appearing with me is a number of shop stewards from the sites.

PN5

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

PN6

THE COMMISSIONER: Thank you. Mr Hoy do you feel somewhat outnumbered?

PN7

MR HOY: Just slightly, Commissioner, yes.

PN8

THE COMMISSIONER: Okay.

PN9

MR HOY: Thank you, Commissioner. Commissioner, these are applications to terminate a number of agreements that the three companies and the unions are involved with. The agreements nominally expired on 30 June 2003. In our application we ask that this matter or these matters be listed initially to set programming dates. We are in the process of completing affidavits and an outline of submissions. We would expect to have those available to the Commission and the other parties by the end of next week. It would be our proposal that they be given another week to submit theirs and then the matters could be listed for hearing some time that following week, that being the week of 15 March.

PN10

THE COMMISSIONER: All right, thank you, Mr Hoy. Yes, Mr Addison.

PN11

MR ADDISON: Yes, thanks, Commissioner. Commissioner, section 170MH, as we all know is a very, very serious application with very serious consequences. The proposed program outlined by Mr Hoy would be completely unacceptable to the AMWU, particularly given the complex nature of this industry and the complex nature of the arrangements that bind the various parties. We would want considerably longer to prepare our material than what has been proposed by Mr Hoy; a week is unrealistic in the extreme. However, saying that, we say, up front, that we think this application is premature in any event. We believe that there ought be some discussions involved in the Commission this afternoon between the parties to see if a way through can be found prior to the application proceeding.

PN12

Obviously, if those discussions are not successful then everybody's rights to come back on the record and deal with matters of programming are still there; and we would seek that the Commission adjourn this matter into conference, at this point in time, to have some discussions to see if we can avoid the necessity of a programming, right now. If the Commission pleases.

PN13

THE COMMISSIONER: Yes, Mr Lee.

PN14

MR LEE: Sir, Mr Addison's proposal is one that is desired by the AWU. We don't see that the present application before you is going to resolve the industrial dispute. The best way to do that is for the parties to start sitting down seriously and bashing the issues around, and we would certainly support, at this stage, sir, a conference with yourself; it is just, in our view, the best way to proceed from here.

PN15

THE COMMISSIONER: Okay, thanks, Mr Lee. Yes, Mr Mooney.

PN16

MR MOONEY: We will adopt the same submission at this stage, Commissioner.

PN17

THE COMMISSIONER: All right. Mr Wainwright.

PN18

MR WAINWRIGHT: Commissioner, as to we, we just put to you that Mr Hoy's proposed timetable is completely unworkable for the CFMEU. We need to both get instructions from members who are distant from Melbourne and perhaps instruct counsel, and we simply could not complete the task in the time that he would allot.

PN19

THE COMMISSIONER: What discussions have occurred since the last time we were together?

PN20

MR LEE: There has been no discussion, sir.

PN21

THE COMMISSIONER: None? None, at all?

PN22

MR LEE: None, at all.

PN23

THE COMMISSIONER: Why is that?

PN24

MR LEE: Well, the companies - well, Mr Hoy can speak for himself, momentarily, but the companies have adopted the old industrial strategy of not talking while there is industrial action in place.

PN25

THE COMMISSIONER: Is that right, Mr Hoy?

PN26

MR HOY: That is correct, Commissioner.

PN27

THE COMMISSIONER: Well, the last time we were together, such a joyous occasion, the unions, I think, insisted that Esso be represented at those discussions, and they were. Are Esso here today?

PN28

MR HOY: No, they are not, Commissioner.

PN29

THE COMMISSIONER: Well, my understanding is that Esso play an integral part in the negotiating process. Is that about right?

PN30

MR HOY: Yes.

PN31

THE COMMISSIONER: Well, in fact, they are the key part of the negotiating process. I have another matter, and I am sorry for the late start, but a conference I had went longer than I thought. I have another matter at 1.30, but what I would like to do to get things back on track is to probably issue a recommendation to the parties and the recommendation would be, that, to assist in the negotiating process that the unions cease any industrial action and that there be immediate negotiations involving Esso and the companies whose applications are before the Commission, today, as soon as possible, and that there be a report back to this Commission; and the Commission would make itself available for the rest of the day at 11.45 on the 4th, which is a Thursday, to try and assist the parties to reach an understanding. Hang on. It is all right, I was just getting my instructions.

PN32

MR ADDISON: Commissioner, can I make some comments with regard your proposed recommendation. In part it is workable and in part it is not, at this point in time, Commissioner, on my instructions. On my instructions, it would be extraordinarily difficult to get the troops to go back on the job, at this point in time, from their protected industrial action. I am instructed that there is a possibility, if some negotiations can occur prior to us going back to a mass meeting and some movement can be made, then there is a possibility that people may have a different view. I would seek, Commissioner, you vary your recommendation, just marginally, and that the negotiations you propose occur over the next couple of days, two or three days, and then the results of those discussions go to a mass meeting of the employees with the recommendation from the unions.

PN33

That would be, in my submission, a much more productive way to go forward. There is no point, in my submission, in going to the workers at this point in time when we know what their response is going to be. They are taking protected industrial, there is nothing to persuade them to move from that position. If we have some negotiations up front there may well be a different position. So I would urge on the Commission that the recommendation just be changed slightly to accommodate some discussions up front before the necessity of going back to the members. If the Commission pleases.

PN34

THE COMMISSIONER: Mr Hoy?

PN35

MR HOY: Commissioner, we are concerned that the matter not be unnecessarily dragged out. I am a little bit concerned that the submission just made by Mr Addison, regarding negotiations continuing whilst there is industrial action in place, however, we are serious about trying to resolve the matters between us and we would be prepared to continue or to at least commence those negotiations if there was a commitment from the unions that they would recommend such a recommendation from yourself at the first opportunity they could have to organise a mass meeting.

PN36

THE COMMISSIONER: All right. Mr Addison, that sounds reasonable.

PN37

MR ADDISON: It does, Commissioner, I just haven't got that instruction. I would ask that the matter be stood down for two or three minutes so I can have a chat.

PN38

MR MOONEY: Commissioner, we would like, actually, probably to have five minutes with you, if we could.

PN39

THE COMMISSIONER: What for?

PN40

MR MOONEY: Just to have a - just a general chat, just have your ear for a minute so that we could actually put our position to you a little bit clearer, if Mr Hoy doesn't mind.

PN41

THE COMMISSIONER: I will keep my ear, but you can talk to it. Mr Hoy do you have a problem with that?

PN42

MR HOY: I don't have a problem with that, Commissioner.

PN43

THE COMMISSIONER: Okay, all right, we will adjourn for five minutes, thanks.

SHORT ADJOURNMENT [1.23pm]

RESUMED [1.33pm]

PN44

THE COMMISSIONER: The Commission has had an opportunity to have a brief discussion with the parties separately. Arising from those discussions the Commission would strongly recommend that the parties, that includes all the unions involved in this matter, as well as the applicants that have made their applications under section 170MH, and includes Esso Australia, to commence negotiations as soon as practicable after today's hearing but, most certainly, those negotiations should include Monday the 1st and Tuesday, 2 March, that there be a report back to the Commission at 3 pm on 2 March and the Commission will make itself available for whatever time is necessary to assist the parties in the negotiating process, that there be a report back meeting on Thursday, 4 March with the union and - the unions, sorry, and their members, with a recommendation that the industrial action cease at that point, with a further report back to the Commission at 1 pm on Thursday, 4 March and, again, the Commission will make whatever time is necessary available to assist the parties to try and reach a resolution to the issues that have given rise to this dispute. Are the parties clear on the Commission's recommendation? Mr Mooney, I will ask you on behalf of all the others.

PN45

MR MOONEY: Yes, Commissioner, thanks for that.

PN46

THE COMMISSIONER: Right. Mr Hoy?

PN47

MR HOY: Yes, Commissioner.

PN48

THE COMMISSIONER: Okay. All right, well we will see you at 3 pm on Tuesday, 2 March.

ADJOURNED UNTIL TUESDAY, 2 MARCH 2004 [1.36pm]