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Australian Industrial Relations Commission Transcripts |
TRANSCRIPT OF PROCEEDINGS
COMMISSIONER CARGILL
C2004/2847
SKILLED ENGINEERING NEWCASTLE PTY LTD
AND
AMWU AND OTHERS
s.127(2) - re stoppage of work at the Kurri Kurri Aluminium Smelter Site
(C2004/2847)
SYDNEY
3.31PM, WEDNESDAY, 20 APRIL 2005
PN1
THE COMMISSIONER: Could I have appearances in relation to the 127 matter.
PN2
MR N BYRNES: I seek leave to appear for Skilled Engineering (Newcastle)
Pty Ltd, the applicant. I am here today with MR BOROBOKAS who is the national employer relations executive of Skilled, and MR ROBERTS
who is the group services manager for New South Wales.
PN3
MR I MORRISON: I appear on behalf of the Australian Manufacturing Workers' Union. With me today is MS M KENNEDY the AMWU organiser from the site and MR R DICK and AMWU delegate from the site.
PN4
MR G BEARD: I appear on behalf of the Australia Workers' Union.
PN5
MS N KASTOUN: I appear for the Communications Electrical and Plumbing Union.
PN6
THE COMMISSIONER: Just in relation to this matter is there any objection to Mr Byrnes being given leave to appear? Mr Morrison.
PN7
MR MORRISON: Not with regard to this matter Commissioner.
PN8
THE COMMISSIONER: Mr Beard.
PN9
MR BEARD: No, Commissioner.
PN10
THE COMMISSIONER: Ms Kastoun. Well leave is granted in relation to the 127 matter, and in relation to the 170LW if I could have appearances please.
PN11
MR I MORRISON: I appear on behalf of the Australian Manufacturing Workers Union. With me today is MS M KENNEDY the AMWU organiser from the site and MR R DICK and AMWU delegate.
PN12
THE COMMISSIONER: Are you seeking leave to intervene Mr Beard in relation to this? It is actually an application. Sorry, I beg your pardon. You are actually one of the notifiers. I hadn't got that far sorry.
PN13
MR BEARD: Yes, okay.
PN14
MS N KASTOUN: I appear for the Communications, Electrical and Plumbing Union.
PN15
MR N BYRNES: I appear for Skilled Engineering (Newcastle) Pty Ltd. Again, as before, with me MR BOROBOKAS and MR ROBERTS.
PN16
THE COMMISSIONER: Thank you Mr Byrnes. Mr Morrison in relation to this matter is there an objection to Mr Byrnes appearing?
PN17
MR MORRISON: Yes there is Commissioner. He does not appear by consent in this matter. The AMWU contends that there are no detailed matters requiring any special expertise with regard to his appearance. Lastly the Act states that a party only needs to be adequately represented and as specifically the two employees of the company who are here were parties to the actual framing of the agreement that gave rise to the 170LW application. They are quite able to represent the interests of their company in this matter we contend.
PN18
THE COMMISSIONER: Mr Beard.
PN19
MR BEARD: I support the submissions made by Mr Morrison.
PN20
THE COMMISSIONER: Ms Kastoun.
PN21
MS KASTOUN: I also support the submissions.
PN22
THE COMMISSIONER: Right. Just before I give you a chance to put what you would like Mr Byrnes, Mr Morrison just one practical difficulty I can see arising out of your objection, if I grant it. Is that you have actually asked for the matters to be joined and I might have some difficulty in allowing Mr Byrnes to appear in one and not the other, if they are actually joined.
PN23
MR MORRISON: I also realise the problems the Commission may have. In fact it is a 170LW application. It does allow for arbitration. Without presupposing the arguments that may come from the other side I think that we can anticipate. However it has been a long standing position with the AMWU to oppose presence of counsel in matters like this. So therefore we continue that tradition.
PN24
THE COMMISSIONER: Far be it for me Mr Morrison to try and derivative from the traditions of such an organisation as your own. But as I say I just apprehend there would be some practical difficulties if in fact I refuse leave. So maybe on this occasion I can, without actually hearing from you Mr Byrnes give you leave in relation to this.
PN25
MR BYRNES: Thank you, Commissioner.
PN26
THE COMMISSIONER: I presume that you would be happy for that. I could ask you though, you will appreciate the fact that with the 170LW perhaps there might be less technical legal points that you might wish to make and depending on where we go, maybe you could that bear in mind please.
PN27
MR BYRNES: Yes, Commissioner.
PN28
THE COMMISSIONER: Perhaps I should first hear - the unions have sought to have the LW joined to the 127. Is there any opposition to that course?
PN29
MR BYRNES: Commissioner what we would say is this. That we say the
127 application is the real business of today. That is the matter that should be considered first because it relates to the urgent
matter at hand, which is the industrial disputation which presently means that Skilled Engineering is unable to provide services
pursuant to its contract to Hydro Aluminium at Kurri Kurri. So we say that that is the real business that should be attended to
first, because that relates to the most urgent and pressing matter. What we say is a flagrant breach, without wanting to get into
the substantive arguments at this early stage, a flagrant breach of the certified agreement. An action which, on any view, could
not be said to be protected in any way. So on that basis Commissioner what we would - our submission in terms of the proceedings
this afternoon is that the 127 application should be heard and considered first, because that is the most urgent pressing matter.
PN30
THE COMMISSIONER: Then we move into the LW secondly, is that what you say?
PN31
MR BYRNES: If required Commissioner, yes. If necessary.
PN32
THE COMMISSIONER: Well it will still be here presumably regardless of what happens in the other matter, I would have thought.
PN33
MR BYRNES: Yes Commissioner but we say that there is a very real urgency surrounding the 127 matter and we don't want anything to act as an impediment or barrier to that being considered in an expedient way.
PN34
THE COMMISSIONER: Mr Morrison did you wish to put anything?
PN35
MR MORRISON: I think that from our position the more appropriate way of dealing with the matters before the Commission is to hear the 170LW application first. If that were addressed then I would say that the other matter, the section 127 application would be by necessity a far easier matter to deal with. It is before the Commission and we are in the Commission's hands as to what the Commission does think is appropriate in the order to deal with the matters. But the point that was made is that the 170LW has to be dealt with, and therefore we say they should at least be ventilated, the issues of the 170LW. Therefore we say that the 170LW should be lodged first and then if necessary move on to the section 127 application.
PN36
THE COMMISSIONER: Mr Beard.
PN37
MR BEARD: Commissioner unfortunately I am not in a position to be involved in a conciliation conference regarding this matter. The instructions I have received from the Newcastle branch were to appear in the 127 matter. To advise you of the set of circumstances that have occurred in regard to that matter and an ongoing agreed meeting with the company tomorrow that may in fact rectify the situation. Those are my instructions.
PN38
THE COMMISSIONER: Ms Kastoun.
PN39
MS KASTOUN: Commissioner I am also in the same position as Mr Beard.
PN40
MR MORRISON: Commissioner in that case I don't wish to place the union at a disadvantage. It might be more appropriate then to proceed as was sought by the employer and move to the section 127 first.
PN41
THE COMMISSIONER: We will do that but certainly I won't have any difficulty if along the way the issues that are presumably going to come out of the LW at least are alluded to, because quite often in these 127s whatever the underlying issue is, is relevant, so it won't stop you bringing out whatever that particular issue is. Perhaps in short compass might be the best way of putting it Mr Morrison. So we will deal with the 127 first then Mr Byrnes if you would like to go ahead please.
PN42
MR BYRNES: Yes Commissioner. We are seeking an order, as I foreshadowed, pursuant to section 127. I might also say Commissioner, and I just raise this by way of foreshadowing the application without having made it and I put it
no higher than this. That we are also considering an application under section 166(A), depending on where we proceed today. I put it no higher than that at this stage. We filed, and I don't think any of this would
be in dispute. We filed this application yesterday afternoon and it was then served by facsimile on the other parties. We urgently
seek orders today Commissioner that the situation is this. That there has been industrial action on foot at the Kurri Kurri site
of
Hydro Aluminium to which Skilled Engineering provides services pursuant to a contract.
PN43
Since 12 pm yesterday a stop working meeting occurred at 12 o'clock. It was resolved at that meeting that work stop for a period
of 48 hours, and employees are still out at that site. So it is imperative in our view that orders be made to return these people
to work pursuant to section 127 subsection (1) which empowers the Commission to grant an order in these circumstances and
Skilled Engineering, the applicant in these proceedings, is directly affected by the industrial action. Commissioner, I am in your
hands. I can speak further to the application if you like. What I was proposing to do was to adduce evidence from Mr Roberts and
Mr Borobokas but perhaps I could give you further background if you like. I am in your hands as to what you might like to do.
PN44
THE COMMISSIONER: It is your case Mr Byrnes, I don't mind. Whatever you want.
PN45
MR BYRNES: Perhaps if I first call Mr Roberts.
PN46
THE COMMISSIONER: In that case can Mr Borobokas leave the court please.
PN47
MR BYRNES: Commissioner can I ask that he stay to give instructions.
PN48
THE COMMISSIONER: Well maybe he could go first then.
PN49
MR BYRNES: May it please the Commission.
PN50
THE COMMISSIONER: Are you likely to be calling anyone Mr Morrison?
PN51
MR MORRISON: I will be Commissioner, so I might just find the list.
THE COMMISSIONER: If you could please.
<PAUL BOROBOKAS, AFFIRMED [3.44PM]
<EXAMINATION-IN-CHIEF BY MR BYRNES
PN53
MR BYRNES: Mr Borobokas what is your position with Skilled Engineering?
---National employee relations executive.
PN54
How long have you been in that role?---Just over two years.
PN55
When did you become first aware of the stoppage of work at the Hydro Aluminium Kurri Kurri site?---Yesterday afternoon on or about 1 pm.
PN56
Who informed you of that?---I was informed by our site manager Phillip Drew.
PN57
What did he say to you?---Phillip Drew telephoned me and said the employees have elected to go out on strike for 48 hours.
PN58
What did you do then?---I asked what the issue was about. He was unsure.
PN59
What did you then do after that in respect of the stoppage?---After that I telephoned Malcolm Roberts. I left a message.
PN60
So who is Mr Roberts?---Mr Roberts is one of the New South Wales contract managers that look after the site. Then I rang back Phil Drew and - - -
PN61
Sorry, what position does Mr Drew hold?---Phil Drew is the site manager if you like. Runs the day to day. He manages the day to day work out there at the Kurri Kurri site.
PN62
What is the relationship, in general terms between Skilled Engineering (Newcastle) Pty Ltd and Hydro Aluminium Pty Ltd, the operator of the Kurri Kurri site?---The relationship is a contractual one. We supply and we look after the pot reconstruction at the site, at the aluminium site.
PN63
Sorry then who did you speak to, you spoke to Mr Roberts is that correct?---No Mr Drew. I rang him for the second time and I spoke to Mr Drew who is Skills site manager and I asked Mr Drew whether he could provide any further details and at that time one of Skilled employees who, I understand, is the AMWU delegate was walking by the office and I asked that I speak to that particular individual.
PN64
Who was that individual?---His name is Robert Dick.
**** PAUL BOROBOKAS XN MR BYRNES
PN65
So did you speak to him?---Yes I spoke to Mr Robert Dick.
PN66
What did you say to Mr Dick?---I asked him what was going on and he replied that the employees had gone out on strike and I further asked him what was the issue and he said contractors. I then asked him whether he was aware the strike was an illegal strike and he confirmed that he was aware that the strike was an illegal strike.
PN67
Was that the extent of your discussion with Mr Dick?---I said when are they going to be returning back to work. He said 48 hours on Thursday. I then also contacted Melissa Kennedy.
PN68
So who is Ms Kennedy?---Melissa Kennedy is - - -
PN69
MR MORRISON: Commissioner can I just interrupt there for a moment. Mr Borobokas has raised issues that - concerning Mr Dick who is with us in court. He is the delegate and I would need now to call him as a witness over certain points that have been raised. So if I could interrupt and ask for Mr Dick to leave the room and I alert the Commission to that.
PN70
THE COMMISSIONER: You weren't previously going to call him?
PN71
MR MORRISON: I wasn't previously, but in light of the evidence that has been given I have to now.
PN72
THE COMMISSIONER: If you could leave please Mr Dick.
PN73
MR BYRNES: Sorry Mr Borobokas we were at having a discussion with Mr Dick I think.
PN74
THE COMMISSIONER: No you had gone on to Ms Kennedy.
**** PAUL BOROBOKAS XN MR BYRNES
PN75
MR BYRNES: My apologies, Ms Kennedy, thank you?---My understanding
- Ms Kennedy is the organiser for the Australian Manufacturing Workers Union working out of the Newcastle branch. I telephoned
her twice. First time I left a message, the second time I got through to her on her mobile. I asked her whether it was true the
employees were going out on strike. Ms Kennedy confirmed that they were taking the employees, her members were taking a 48 hour
strike and will be returning on Thursday at 1 pm. I asked her whether she was aware that the strike was an illegal strike. She
said words to the effect, "der, I am an industrial organiser with the union, I know what the law is". I asked her why,
we never engaged in - she never engaged in dialogue with us in relation to the issue, and she said that the employees had elected
to go out on strike. I asked her about the meeting that she conducted at the site. I asked her whether there options that were
put to the employees in relation to industrial action. I asked her what were those two options and she said the first was to have
discussions with the company and in particular Mr Roberts, and the other option that was put to the employees is to take strike action.
She put those two propositions up to the mass meeting, she told me, and said that the employees unanimously elected to go out on
a 48 hour strike.
PN76
Mr Borobokas was that the extent of your discussion with - - - ?---Just that I omitted to say that I put that same question to Mr Dick about what were the two propositions that were - what was put to the employees and he said the same thing, and that is either to have discussions and or to take strike action. Further Mr Dick said that - he had told me that the employees were made aware that the strike action was illegal.
PN77
You mentioned the issue in your discussion with Ms Kennedy. What issue was that? Did Ms Kennedy identify that issue at all in her
discussion with you?
---Yes.
PN78
What was that issue?---That issue related to contractors on site.
PN79
Are you aware of any formal notification or raising of that issue prior to your discussion with Ms Kennedy?---No I am not aware of that issue being raised formally by Ms Kennedy.
PN80
By formally I would mean in accordance with the terms of the relevant EBA?
---Definitely not in accordance with the terms of the dispute resolution procedures as outlined in the agreement.
**** PAUL BOROBOKAS XN MR BYRNES
PN81
After your discussions with Ms Kennedy, who else did you speak to in respect of the dispute?---I also spoke to Mr Keen from the - - -
PN82
Who is that? Can you identify Mr Keen?---John Keen is an organiser with the Australian Workers Union. I indicated to Mr Keen that I believed the strike action to have been illegal. He said he wasn't aware of the strike action himself, and that he would get back to me. I asked that those employees go back to work. I asked him to contact the employees to go back to work.
PN83
Given evidence that Mr Keen was not aware, is Mr Keen the person to whom you usually speak or is usually related to the site?---Yes, in our dealings.
PN84
Are you aware of any steps that Mr Keen has taken in that regard?---I am not aware of any steps that Mr Keen has taken in regards to getting employees back to work.
PN85
To the best of your knowledge those AWU members are still out?---Yes. I believe that they are, yes.
PN86
What other discussions did you have Mr Borobokas? What other discussions did you have in respect of the dispute?---I had discussions in relation to Malcolm Roberts about whether he knew anything in relation to the dispute. He was unaware of the issue.
PN87
Have you spoken to any other union officials, any representatives of the unions here today about the dispute?---We have received no notification from the unions in relation to taking strike action, and that we haven't had any further discussions about being notified of any strike action.
PN88
So you have had no other discussions with union officials in respect of it effectively?---None come to mind right now. It is possible but I can't recall a conversation right at this point. Maybe in a minute my memory will be prompted.
PN89
Thank you Commissioner.
PN90
THE COMMISSIONER: Mr Morrison did you wish to cross-examine?
MR MORRISON: Yes, thank you Commissioner.
**** PAUL BOROBOKAS XN MR BYRNES
<CROSS-EXAMINATION BY MR MORRISON [3.55PM]
PN92
MR MORRISON: Have you ever heard of a company called Compac Main?
---Yes.
PN93
What can you tell us about Contact Main?
PN94
MR BYRNES: I object Commissioner.
PN95
THE COMMISSIONER: On what grounds Mr Byrnes.
PN96
MR BYRNES: I just don't understand the relevance of this.
PN97
THE COMMISSIONER: Maybe we will hear what that relevance might be. Mr Morrison can I just ask you how you spell Compac Main?
PN98
MR MORRISON: C-o-m-p-a-c M-a-i-n.
PN99
THE COMMISSIONER: Thank you.
PN100
MR MORRISON: I will repeat my question. What can you tell us about Compac Main?---Compac Main is a company that works on the Kurri site. My understanding is they have provided services at the Kurri site.
PN101
Are they a subcontractor to your company?---Skilled has contracted, to my knowledge, Compac Main to perform some work, yes.
PN102
What work have you subcontracted them to perform?---My understanding is, and I have got limited knowledge on it, but my understanding is to perform some work which I could only describe as removing substances that are a result of the aluminium processing.
PN103
If I put it to you the dumping of SPL, whatever SPL would be?---I don't know what SPL is.
PN104
Are you aware they are painting offices?---I am not aware of - - -
PN105
Are you aware they are - - -
**** PAUL BOROBOKAS XXN MR MORRISON
PN106
THE COMMISSIONER: Mr Morrison can you just let him finish the answer please. He was actually attempting to answer?---I am not sure what painting offices is.
PN107
MR MORRISON: You are not sure of what painting offices is?---No, is that an officer of the company?
PN108
An office?---I am sorry. Don't know.
PN109
Are you aware of them cleaning basements in the ..... ?---I am not sure what you mean by basements..
PN110
Are you aware of them driving Skilled trucks? Any word there I need to explain?
---I don't know, I have never seen them drive a truck.
PN111
Are you aware of them training up in the use of excavators?---I have never seen them trained in the use of excavators.
PN112
Are you aware of them doing any maintenance of equipment? You are not aware of that?---It is possible. I don't work out at that site.
PN113
MR BYRNES: Commissioner can I just object on this basis. I am not trying to be difficult. Mr Borobokas is the national employee relations executive, and I suppose it is a matter for my friend as to what questions he puts but I am not quite sure to what extent Mr Borobokas can assist, given his position. It may well be that these are matters that are more properly put to Mr Roberts. But it is a matter for my friend. But I just raise that.
PN114
THE COMMISSIONER: Yes Mr Byrnes.
PN115
MR MORRISON: I appreciate the assistance. Are you aware of your company laying off nine casuals on 8 April?---I am aware of casuals being - having their work discontinued on the site, but I am not aware of the date, I can't confirm dates for you.
PN116
Are you aware of why their work discontinued?---There is any number of reasons why casuals or employees generally - - -
**** PAUL BOROBOKAS XXN MR MORRISON
PN117
Are you aware why these - - -
PN118
THE COMMISSIONER: Mr Morrison. Can you just let him finish the answer please. He is still talking and you are bringing the next question in.
PN119
MR MORRISON: Are you aware why these workers were laid off?---My understanding is that the work - there was no longer work for them to perform.
PN120
Are you aware how long Compac Main have been on the site for?---No.
PN121
You told us yesterday you had a discussion with Melissa Kennedy, just after 1 pm?---On or about just after 1 pm.
PN122
You said that she gave two points to the meeting, that she raised two points, two options. Is that correct?---That is what she told me.
PN123
What were those two options you say she said?---She said that the two propositions she put to the employees that were assembled at the mass meeting was - the first one that they have discussions with the company in relation to their issue. The second option that they take a 48 hour stoppage, strike.
PN124
She actually used the word strike did she?---Strike.
PN125
She actually used that word? You are very clear?---My understanding, yes.
PN126
No, not understanding. She actually used the word strike?---In discussions with me, my recollection is that she said strike.
PN127
She didn't, you know, use the word action or consider taking some steps? Absolutely used the word strike?---Strike.
PN128
I am just trying to frame a question that you can answer. Have you ever had the issue of subcontractors raised to you by the union?---In a broad sense I would say that many unions have raised the issue about contractors - - -
PN129
No. Have any of your managers in the recent, at Kurri Kurri Salt have come to you and said the unions are not happy, or the union is not happy on the company use of subcontractors?---No.
**** PAUL BOROBOKAS XXN MR MORRISON
PN130
So the two managers you have identified, Mr Drew and Mr Roberts, neither of them have reported to you anything from the unions saying the unions aren't happy on the use of subcontractors?---No, not to my - I can't recall managers referring to the unions issue in relation to subcontractors, no.
PN131
You have just recently negotiated an enterprise agreement is that correct?---Mm.
PN132
It was recently certified?---I think you were at the certification.
PN133
I was. You opposed the negotiation of that certified agreement though?---I was.
PN134
Was there any discussion in the negotiations over that agreement on the use of subcontractors?---Goodness me. It may have been raised as an issue, I don't recall it.
PN135
Did the company raise it as an issue?---I don't recall it. It may have. I would have to go through my notes about the EBA discussions.
PN136
At this moment you can't recall any discussions in the EBA negotiations on the use of subcontractors at the Kurri Kurri site?---Nothing is fixed in mind. I mean if there was a significant debate on it I would have remembered, and if there - if it was an issue that the union parties that were negotiating were adamant on having something may have been drafted in the EBA in relation to that issue. But, no, nothing sticks to mind.
PN137
Did the company raise it as an issue in the EBA negotiations?---Nothing sticks to mind. It possibly may have, I am not sure. Nothing sticks to mind. I don't recall any table banging objections or any lengthy debates about it.
PN138
Was there ever an agenda item to your recollection?---Again I can't recall.
PN139
No further questions.
PN140
THE COMMISSIONER: Mr Beard did you want to - - -
PN141
MR BEARD: I have no questions.
THE COMMISSIONER: Ms Kastoun are you right? Mr Byrnes did you want to re-examine?
**** PAUL BOROBOKAS XXN MR MORRISON
<RE-EXAMINATION BY MR BYRNES [4.05PM]
PN143
MR BYRNES: Just briefly. Mr Borobokas how many sites - your position is national employee relations executive is that correct?---Yes, that is correct.
PN144
How many sites do you look after, in your position, how many Skill sites do you look after across Australia?---I don't know. We have on or about at any given time 12, 13, 14,000 employees around Australia. We have arguably hundreds of sites where we do work on.
PN145
You are involved in overseeing those sites, is that correct?---That's correct.
PN146
So is there industrial relations?---Yes.
PN147
Therefore you are involved in negotiating many enterprise agreements, certified agreements and the like?---Yes. We have maybe 40, 50. Someone told me we had 60 enterprise agreements but I dispute that. I should table them in a spreadsheet.
PN148
So it is fair to say, given the nature of your role, that you don't necessarily delve down to the detail or the minutiae of individual certified agreements?---That's correct.
PN149
Thank you Commissioner.
PN150
THE COMMISSIONER: Can I just ask how many employees you say are not working at the moment?---My understanding is Commissioner that almost all of the employees on site aren't working, which is - Malcolm Roberts he would probably be able to - - -
PN151
Perhaps I can ask him?---Twenty something, or something. All of them that we have there except maybe one I think. Maybe they are gone as well now, I am not sure.
PN152
So does anyone want to ask anything arising out of that?
PN153
MR BYRNES: I am sorry Commissioner I missed that.
**** PAUL BOROBOKAS RXN MR BYRNES
PN154
THE COMMISSIONER: I am just asking if there is anything arising out of my question, but given that the answer is a bit vague it
might be something
Mr Roberts can - - - ?---No essentially all of them.
PN155
Thank you. You can be excused and you can stay in the court room now if you would like to. You wanted to call Mr Roberts did you?
MR BYRNES: Thank you, Commissioner, yes.
<THE WITNESS WITHDREW [4.07PM]
<MALCOLM REX ROBERTS, AFFIRMED [4.08PM]
<EXAMINATION-IN-CHIEF BY MR BYRNES
PN157
MR BYRNES: Mr Roberts what is your position with Skilled Engineering Pty Ltd?---My role within Skilled is the group services manager here in New South Wales.
PN158
What does that position involve Mr Roberts?---That position involves the management and administration of a portfolio of services that we offer our clients across the New South Wales area.
PN159
Does Skilled Engineering Pty Ltd provide services to the Kurri Kurri site of Hydro Aluminium Kurri Kurri Pty Ltd?---Skilled provides the services on pot reconstruction to Hydro.
PN160
So what do those services specifically entail, can you tell us what those services entail?---Within my portfolio the services involve a reconstruction activity. When the aluminium pots fail Skilled is contracted to rebuild them.
PN161
Are those services provided pursuant to a contract or an agreement between the parties?---A contract.
PN162
Is that contract the pot reconstruction agreement?---That's correct.
PN163
From what date does that contract operate?---The contract has been in place since 1 July 2003.
PN164
2003 or 2004?---2004 my mistake. We are in 2005. I apologise, it is 2004.
PN165
Sorry Mr Roberts it is operated from 1 July 2004?---1 July 2004, yes.
PN166
Commissioner I was going to tender a copy of that agreement. With the greatest of respect to the unions here today I would rather - my concern about that is that it is a document which is commercial in confidence as you appreciate. I am sure the union have no particular interest in seeing it. In particular I want to rely upon schedule H of that document and perhaps that is the document that I should tender. So I might do that Commissioner. I am just alerting you to the difficulty that I don't want to tender the whole agreement as an exhibit, because it is commercial in confidence. Or I can tender it if my friends don't object, on the basis that it remain confidential.
**** MALCOLM REX ROBERTS XN MR BYRNES
PN167
THE COMMISSIONER: Is there particular need for the whole document to be before - - -
PN168
MR BYRNES: I don't think there is Commissioner. I think in actual fact I can probably just tender annexure H to the document, and
then Mr Roberts is giving evidence and if there is any contention about that Mr Roberts can be
cross-examined about that. I am really just raising the difficulty.
PN169
THE COMMISSIONER: There is nothing in schedule that is a difficulty is there?
PN170
MR BYRNES: Not in terms of confidentiality, no. I am instructed that that is not the case. I don't know whether there is any objection to that course.
PN171
THE COMMISSIONER: Perhaps you could show it to the people at the other end of the bar table and we will see where we go, as to whether they require something further.
PN172
MR BYRNES: Yes Commissioner.
PN173
MR MORRISON: Commissioner I am assuming the relevance of this document will be explained in due course, but on its face value I don't think we will have any objections to lodgement.
PN174
THE COMMISSIONER: Thank you .
PN175
MR BYRNES: Can you just have a look at the document that has been handed to you Mr Roberts. What document is that that you have got in possession?---You have given me annexure H.
PN176
That is annexure H is it to the pot reconstruction agreement?---That's correct.
Could I tender that Commissioner.
EXHIBIT #SKILLED1 ANNEXURE H SKILLED ENGINEERING POT RECONSTRUCTION AGREEMENT
PN178
Mr Roberts I do note the document which has been identified as Skilled1 has on it a draft sign. Does it reflect the terms that have
been the final terms agreed?
---Absolutely.
**** MALCOLM REX ROBERTS XN MR BYRNES
PN179
That document has in fact been executed?---The document is in the process of being executed. Annexure H has been applied and is being applied.
PN180
That reflects the terms that govern the relationship between Skilled Group Limited and Hydro Aluminium Kurri Kurri Pty Ltd?---That's correct.
PN181
They are the parties to the agreement?---Correct.
PN182
What do you understand to be the relevant industrial instrument governing the employment of Skilled employees performing work under that pot reconstruction agreement?---The industrial instrument that is used, that governs the relationship, is the one that has just been recently certified.
PN183
Is that the Skilled Engineering Limited Kurri Kurri Aluminium Smelter Site Agreement 2004 to 2007?---That's correct.
PN184
Approximately when do you understand that that was certified?---At the beginning of this month. The first week, probably 6 or 7 April.
PN185
Approximately how many employees, or if you know the precise number of employees perform work - sorry, Skilled Engineering employees perform work under the pot reconstruction agreement at the Kurri Kurri site?---It varies from time to time based on the volume of work. Currently it would be approximately 40 people.
PN186
Are those 40 employees presently providing those services, or performing that work?---That's correct.
PN187
Today, at this very moment?---At this very moment no.
PN188
So there are 40 employees who under ordinary circumstances - - - ?---Under ordinary circumstances they would be there - - -
PN189
On those services?---Yes.
PN190
You understand well that there is a stop work presently?---Correct.
PN191
MR MORRISON: No.
**** MALCOLM REX ROBERTS XN MR BYRNES
PN192
MR BYRNES: Sorry, I will withdraw the question Mr Morrison. Those services are presently not being provided by those employees, is that correct?---That's correct.
PN193
When did that situation arise? When did you first become aware of that situation?---I first became aware that the work on site had stopped at approximately 2.15 yesterday afternoon.
PN194
How did you find out about that?---By telephone call from my manager on site.
PN195
How is that?---Phillip Drew.
PN196
What did Mr Drew say to you Mr Roberts?---He said that our employees had decided to take an industrial action and were off for 48 hours, following a meeting.
PN197
Did Mr Drew say what the stoppage was about?---In general terms, he said in relation to subcontractors.
PN198
Did you ask for any more detail in respect of that?---Not at that time. I was alarmed at the information that had just been made available to me, and I was thinking about what I needed to do to recover with our client.
PN199
Had this issue of subcontractors been raised with you shortly prior to that - being notified of that by Mr Drew?---No.
PN200
Had there been any formal notification of that issue to you?---No, not at all.
PN201
Just to clarify this. There has been no work performed by Skilled Engineering staff since that notification to you at 2.15 yesterday afternoon?---From the employees covered under the agreement?
PN202
Yes?---No.
PN203
Did Mr Drew indicate to you from what time they stopped work?---I understood it to be midday. Midday-ish. They attended a stop work meeting at midday and that would be as close as I could say.
**** MALCOLM REX ROBERTS XN MR BYRNES
PN204
How has the failure to perform work impacted upon Hydro Aluminium's Kurri Kurri site to the best of your knowledge and belief?---To the best of my knowledge I have conferred with our client and - - -
PN205
Sorry, who did you speak to?---I spoke - with our client directly I spoke with the pot room administrator - do you want his name?
PN206
Yes please?---Mr Neil Day. He is our regular contact in this matter. I discussed the fact that our workforce had decided to leave the site and he immediately advised me that that was going to impact on them, in terms of they were delayed in returning the pots to service, and he named - I can't recall off the top of my head, he named two particular pots that were now going to be delayed.
PN207
Could I just show Mr Roberts a document please. Is this an email from - or could you identify the document?---Yes the document is an email that I have printed out from my computer. It has got my name on the top, and it is from Mr Neil Day of Hydro to myself, Michael Olsen who is my direct manager, and Phillip Drew who is my manager on site.
PN208
What is that email about?---It documents what I have just described to you. That how the delay in our services would affect Hydro. There was activity planned for yesterday, which was Tuesday, and that required some work to be done and we were not on site to carry out that work. Therefore it would affect the client directly. It also refers to another pot that was supposed to be handed back to production which could not be.
PN209
May I tender that Commissioner and have that marked.
PN210
THE COMMISSIONER: There is no difficulty with this being marked?
MR MORRISON: No Commissioner.
EXHIBIT #SKILLED2 EMAIL FROM N DAY TO M ROBERTS
PN212
MR BYRNES: Mr Roberts what are the effects of these pots being out for the
48 hour period. Can you just describe to us in simple terms the ramifications of that, both in terms of a short term production
loss and longer term production loss?---It is a very simple case. The pot is not on line and it doesn't produce aluminium. So the
benefit is not realised by the client. There is no aluminium being produced by the particular pots that are affected, therefore
they remain dormant.
**** MALCOLM REX ROBERTS XN MR BYRNES
PN213
So that is what I might describe as the short term effect. Is there any longer term implication of the pots being out for that period?---No more than the fact they are not producing and the time can never be recovered. That is it can only produce a certain amount of aluminium each day and the time is lost.
PN214
Mr Roberts, how is Skilled Engineering being affected by the failure of employees to provide work?---In this case I refer you back to annexure H which is the mechanism that we have agreed under our contract to treat delay in return of pots.
PN215
Could you just explain that further Mr Roberts. What do you mean by that?---It is a mechanism - it is a commercial arrangement that we have agreed that we are financially penalised by returning pots late. Or on the other hand, if we return pots early we are given a bonus.
PN216
What is the time period at which - I withdraw that. If you return a pot late what is the mechanism by which Skilled Engineering is penalised for that?---An accrual of a financial number. The number is in a table in annexure H and if it is - our target date is 13 - - -
PN217
13 days?---13 days, and that is when we are normally able to accomplish the task.
PN218
After 13 days you incur liquidated damages?---Not immediately. At 14 days. There is a grace day. 15 we are incurring a cost, an additional cost, and 15, 16, 17 and the days cap out at 20, where the maximum penalties apply.
PN219
By virtue or by reason of this stoppage will you incur any loss under that regime, under the regime set out in annexure H?---I believe we will.
PN220
Why is that the case?---Because we can't return the pot back as planned, and as mentioned by the email. And already these pots were late anyway.
PN221
When are you next scheduled to meet any one of the unions that here today?
---Tomorrow morning in Newcastle, in the Australian Workers office in Newcastle at 10.30 with Mr John Keen.
PN222
Mr Keen is from the AWU?---AWU, yes.
**** MALCOLM REX ROBERTS XN MR BYRNES
PN223
What topic, or what matter are you - is there an agenda for that meeting?---The discussion was intended to cover a drug and alcohol policy matter. We were making amendments to a drug and alcohol policy as discussed in March.
PN224
Has Mr Keen or anybody else from the AWU sought to put any other item on the agenda for that particular meeting at 10 o'clock tomorrow morning?---No.
PN225
Has anyone from another union contacted you to join that meeting or to meet with you at that time?---Not at all.
PN226
Did Mr Keen at any time seek to put the issue of subcontractors on the agenda at that meeting?---No.
PN227
MR BEARD: Excuse me, Commissioner, could I be excused? Contact Mr Keen and just get some further instructions.
PN228
THE COMMISSIONER: Yes.
PN229
MR MORRISON: Commissioner can I just propose a short adjournment? Perhaps it might be ..... to Mr Beard, obviously I don't - I cant speak for Mr ..... but he is seeking instructions it might be more appropriate if we do have a short adjournment in light of the - in all fairness to my client.
PN230
THE COMMISSIONER: Do you need a break Mr Byrnes?
PN231
MR BYRNES: I don't need a break but if that is sought I don't resist it, provided it is short Commissioner.
PN232
THE COMMISSIONER: Presumably it would be short. I don't imagine it would take very long, unless he can't get Mr Keen, in which case it might be even shorter.
PN233
MR BYRNES: I am almost finished with Mr Roberts if that assists.
PN234
THE COMMISSIONER: I am just wondering whether - - -
PN235
MR BYRNES: It might offer a clean - - -
**** MALCOLM REX ROBERTS XN MR BYRNES
PN236
THE COMMISSIONER: Yes, it might easier then if we could. Mr Morrison obviously if anything comes up in these questions that are specifically relevant to the AWU we can arrange for that but if they are more of a general nature. So you go ahead Mr Byrnes.
PN237
MR MORRISON: If I could take some instructions. Just excuse me for a moment.
PN238
THE COMMISSIONER: Perhaps I could just ask while you are doing that. It is just more a general thing. Mr Roberts in relation to this liquidated damages, annexure H, could I just ask, the relevant damages or bonus apply to each single pot do they? So in other words if you have got three pots it will be three times whatever it is?---Correct.
PN239
MR BYRNES: Mr Roberts, has the issue of subcontractors been raised with you recently, in respect of employees working on the pots?---Only since this matter has come about in conversation. I mean I am hearing second and third hand remarks. Nothing has been put to me directly.
PN240
So no officer of the union or no organiser, or no site delegate has come to you and raised these matters with you?---Raised these formally, no they have not.
PN241
They are the submissions. Thank you Commissioner.
PN242
THE COMMISSIONER: Maybe it might be appropriate now if we actually do have a short break. Mr Roberts if you could - I mean you haven't actually started cross-examination but if you could not discuss your evidence with anyone during the break please. We will just break for a few moments and Mr Morrison if you could let my associate know when we are ready to go back please.
<SHORT ADJOURNMENT [4.28PM]
<RESUMED [4.35PM]
THE COMMISSIONER: Mr Roberts, you will remember you are still under oath. Yes Mr Morrison.
<CROSS-EXAMINATION BY MR MORRISON [4.35PM]
PN244
MR MORRISON: Mr Roberts are you attending, or do you propose to attend that meeting scheduled for tomorrow morning?---I do.
**** MALCOLM REX ROBERTS XXN MR MORRISON
PN245
When was the meeting for tomorrow organised, do you recall?---I spoke to John on the telephone on Monday, probably Monday afternoon and confirmed it by facsimile. I have got a copy of the facsimile here, which I forwarded late from office on Monday night, around 7.30.
PN246
Have you spoken to Mr Keen or anyone since midday yesterday, about that meeting?---Yes I did.
PN247
Anyone from the unions?---From John Keen.
PN248
Mr John Keen?---Just to John Keen.
PN249
Have you spoken about the agenda for that meeting tomorrow, with Mr Keen?
---With reference to facts and the drug and alcohol policy.
PN250
So you haven't raised, since yesterday midday, in your discussions with Mr Keen or anyone, about putting the issue of subcontractors
on the agenda for tomorrow?
---Obviously as matters have unfolded since midday yesterday, John and I did converse about what all this was about, and I think
in broad terms our conversation - well we could have put this on the agenda on Thursday. You know it could have been raised on
Thursday at the time. And that was the context of that reference. I, initially on Monday, set out to meet with John Keen on the
drug and alcohol amendments.
PN251
Is it to your knowledge now, the issue of the subcontractors or contractors, on the agenda for tomorrow's meeting now?---It could be raised. I am not closed minded to having a discussion with John about work on site generally. In fact I have always been able to discuss openly with John, about any matter.
PN252
Has previous to 2 o'clock, I believe you said, or approximately 2 o'clock - have you been aware of an issue over the use of contractors on the site?---Since 2 o'clock yesterday I am aware of the issue being - I guess being the trigger, the trigger of this, the current dispute.
PN253
Were you aware of any dissatisfaction by your employees about the use of contractors prior to 2 o'clock yesterday?---In casual terms, casual conversations, I knew that there was a few questions and queries. Nothing specific, nothing formal. I don't visit the site on a - my regularity on site is probably two times a month.
**** MALCOLM REX ROBERTS XXN MR MORRISON
PN254
Who casually raised it with you?---I really can't recall. It could have been a group of people, it could have been my manager on site, Phillip Drew.
PN255
So it may have been Phil Drew?---It may have been Phil. It may have been some of the guys that work for him. It could have been in the crib room. I can't recall specifically.
PN256
You must have been a bit surprised that an issue that hasn't been brought to the attention of - I forgot your title, general manager or state manager, to suddenly spring to life to such an extent that the workers walk off the job. It must have been quite a shock to you?---It certainly was.
PN257
You had no inkling that it was such a hot issue?---That's true.
PN258
Have you subsequently to 2 o'clock spoken to your local management to find out why wasn't I told?---On several occasions. I have discussed this dispute with Phillip, on a range of matters, but essentially the fact that we have stopped work.
PN259
But any discussions about the actual issue that has resulted in the stop work?
---The issue, yes, has been the subject of several telephone calls. I guess seeking clarification really in my own mind.
PN260
What has been clarified in your mind?---That the work specifically relating to a group of contractors - I mean Skilled provide a service to the Hydro Alumina site which incorporates the use of a range of subcontractors. We are not a specialist service provider. We have to then employ - we outsource various tasks.
PN261
Has anybody informed you that one of the issues might be that the subcontractors are actually doing the work of what has traditionally been done by Skilled employees?---I have heard those concerns. As I said to you, generally.
PN262
Who did you hear it from?---I would say to you probably my own management team, about the use of subcontractors. But I have viewed it terms of a range of services that we outsource. We must have 10, 11 outsource - - -
PN263
From 2 o'clock yesterday has anyone specifically spoken to you about the use of subcontractors in work that has traditionally been
done by your own employees?
---Not our tradesmen, no union official, no delegate.
**** MALCOLM REX ROBERTS XXN MR MORRISON
PN264
Has any of your management said the subcontractors have been doing work that is normally done by Skilled employees and that is the reason the guys walked off the job?---No, not in that context.
PN265
In what context did they talk to you about it?---As I said, in my clarification, in my conversations with Phillip Drew has been along the lines of saying the work that our subcontractor performs how effective is it, how efficient, is the client pleased with what Skilled is doing. That has been the basis of my conversation with Phillip Drew.
PN266
You haven't asked what they do? You just want to know if it was efficient?
---Effective, efficient, in line with meeting our contractual commitments in 13 days.
PN267
So you are quite comfortable with these subcontractors doing the maintenance of equipment work, for instance?---They don't do maintenance of - that is not what this particular contractor does.
PN268
How do you know that?---I know it from my discussions with my site manager.
PN269
So you are telling us that Mr Drew told you that they don't do the maintenance of equipment?---The maintenance of equipment used in the pot line reconstruction, I am not aware of it.
PN270
What are you aware that they actually do?---What I am aware of is that the contractor performs what we describe as a basement clean, a basement clean. Now, basement cleaning is literally what it means. Is the tradesmen or the labour enters the basement of the aluminium pots and sets about to sweep, dig, clean, remove residue from the basement of the pot and making the workplace clean so that our tradesmen can then enter that work site and conduct a rebuild.
PN271
Your own employees, the Skilled employees, don't do that work?---In the past they have been used to do that work. Since the middle of January this year we have had huge amounts of work on site and we employed this contractor to do that basement cleaning.
**** MALCOLM REX ROBERTS XXN MR MORRISON
PN272
Are you aware that nine casuals were laid off in April by Skilled?---I have heard that figure. I have had confirmation that it wasn't nine. It was five. I have heard the figure mentioned that you stated. But my follow up since then has been as to adjust that number down. Basically what we set out to do is, with the decline in the amount of work we have had, we had no choice but to reduce our manning on site. Therefore we reduced our shift labour by two people per shift.
PN273
Two, two and one assuming?---Two, two and one, yes.
PN274
But you still, to your knowledge, continued to use the subcontractor to do the cleaning of the basement?---That's correct.
PN275
Even though that work could be done by Skilled employees?---I am happy with the work being done at the moment, and as I mentioned before the contractor in question has been doing this work now since the middle of January and done it very well.
PN276
Haven't your workers been doing it very well?---They haven't been doing that particular work.
PN277
Because it is being done by the subcontractors?---Since the middle of January, and that was brought about by the sheer volume of pots. We had an abnormal amount of work given to us from November 2004. We had up to 20 pots that we were rebuilding in parallel.
PN278
But you don't have that now do you?---The work load has declined. We are back to around about 10 or 12.
PN279
Which is the normal amount?---Lower than that would be normal.
PN280
But you still continue to use the subcontractor and laid off your employees, is that correct?---A range of contractors are used to do the rebuild process. Now, the basement cleaning is being done effectively, it is being done well by another subcontractor.
PN281
That company being Compac Main?---That's correct.
PN282
I just want to get it clear in my head that Skilled employees were laid off, five according to your figures. Is that correct?---That's correct.
**** MALCOLM REX ROBERTS XXN MR MORRISON
PN283
However, you have maintained the use of Compac Main to do work that was done previously by your employees?---The way you are saying it, that's correct.
PN284
Now, moving onto the action that has being taken at the moment. Are you aware of what action is being taken?---A 48 hour stop work, yes I am.
PN285
How do you know that?---From conversations I have had with Phillip Drew, my local man. That is the only official notice that I have. I haven't spoken to anyone other than John Keen from the AWU.
PN286
This was at 2 o'clock yesterday by Mr Drew?---I was in a meeting, I had my phone switched off. I left the meeting, switched my phone on, answered five or six voice mails and one of them was Phillip, please ring me back urgently. The guys have gone off site for 48 hours.
PN287
You spoke to him and he told you they had walked off because?---Because they believe they have got an issue with subcontractors.
PN288
You, not knowing anything previously about this, said let's have a meeting - we are having a meeting on Thursday. Is that correct?---The meeting was set up on Monday.
PN289
But you are having a meeting on Thursday?---Tomorrow, yes.
PN290
And we are going to talk about?---Drug and alcohol.
PN291
Not talk about subcontractors?---Since then, since speaking to John Keen, and we talk about lots of things. I mean I am not closed minded, and John says well, you know, we have got an issue here we will have to talk about it, I am more than welcome to discuss it.
PN292
But John raised it did he, to your recollection?---I spoke - you see I spoke to John probably twice, three times yesterday. Last time was about a quarter to seven last night and it was in relation to making contact with employees. Whether I could or I could not provide some after hours contact details.
PN293
So he rang you asking for after hours contact details?---We discussed it. He left a voice message on my phone. I rang him back. He gave me his home phone number in Newcastle to ring him back at any time and I did, around a quarter to seven.
**** MALCOLM REX ROBERTS XXN MR MORRISON
PN294
So what steps have you taken to talk to the unions about the use of subcontractors?---Right now?
PN295
Up until now?---Up until now. To the talk to the union about subcontractors officially, nothing.
PN296
You have got from attachment H, Skilled 1, you are facing financial penalties. You have got your workforce out on strike, and you have made no effort to talk to anyone from the unions about the issue behind the industrial action. Is that correct?---This issue is about the way in which our EBA has been breached, in my view, and about a dispute resolution process that hasn't been followed. So I am being guided by my industrial relations council on matters going forward. And it has happened since midday yesterday. So I have been - - -
PN297
So when did you speak to your industrial relations advisers?---After I had spoke
- I spoke to Paul Borobokas. I can't recall the exact time, but it would have been 2.30 yesterday afternoon - - -
PN298
So at 2.30 yesterday afternoon you knew that this was about an alleged breach of the enterprise bargaining agreement?---We discussed it. We discussed what has brought this about. I mean is this a legal action. Is it in breach of our certified agreement. We discussed lots of things.
PN299
What did you discuss about the use of subcontractors? Did you say they have got us, we have breached the agreement, what are we going to do?---No, not at all.
PN300
Did you say let us get a 127 application as quickly as possible?---No, that is not true.
PN301
Did you say let's ring the unions, let's have a meeting and talk about it?---No I did not.
PN302
So what did you do, what did you decide to do?---I spent yesterday afternoon in telephone contact with Paul Borobokas, with my direct manager Michael Olsen formulating - I spoke with the client Mr Neil Day, formulating our action from here. I mean my information from site was the fellows had gone home, and I had to deal with this in a very short period of time and consequently we are here now.
PN303
So the wheels for the 127 application started after you spoke with your management team yesterday afternoon?---That's correct.
**** MALCOLM REX ROBERTS XXN MR MORRISON
PN304
There was no discussion though, to your recollection, about trying to actually talk to the unions about fixing the underlying issue?---Not yesterday, no. Not at all.
PN305
When you spoke to Mr Drew, did you speak to him about any discussions he may have had with any of the unions or the delegates on the site, or the workers on site, about their concerns about the use of subcontractors?---As I said to you, yesterday afternoon in several conversations with Phillip Drew, the matters was raised, yes. I enquired from him again and again about the Compac Main contractors and specifically, and as I said before, seeking clarification in my own mind that they were doing the tasks that I understood them to do, and which was basement cleaning. We have also had them involved in other contestable work, and that is what else they are used for.
PN306
Did Mr Drew, though, raise with you concerns that have been raised with him?
---We talked about the use of Compac Main with regards to the basement cleaning, and our desire to continue using them.
PN307
No the point I was trying to get, did he raise with you concerns that have been raised with him by either the unions, the delegates or the employees about the use of subcontractors?---He has mentioned to me that there is a concern on site, about Compac Main doing basement cleans. And I, again, clarified with him that they were just doing the basement cleaning, and I was satisfied to continue using them.
PN308
If I put to you that they are doing more than just the basement cleaning, would you be surprised?---If you told me they were doing tap out cleans I would not be surprised. If you told me they were sweeping floors around our office area I would not be surprised. If you told me they were participating in the pot line reconstruction I would be.
PN309
What about the maintenance of equipment, doing maintenance work? Would you be surprised?---I would be surprised. I am not aware of them maintaining any of the Hydro equipment.
PN310
If I put it to you that they were painting offices would you be surprised?---No I wouldn't because now I am aware - we have just built a new office for our team, our management team on site, and we have used plumbers, carpenters, brickies, tilers and painters.
**** MALCOLM REX ROBERTS XXN MR MORRISON
PN311
If I put it to you they were driving Skilled trucks would you be surprised?---We have a range of vehicles. We have got transport vehicles for people and transport for equipment and material. If they were using the large material carriers I would be. The people movers, no.
PN312
So you said that you had discussions with Mr Drew since 2 o'clock yesterday about the use of the subcontractors about, you are now
aware via Mr Drew that concerns have been raised with him over the use of subcontractors is that correct?
---That's correct.
PN313
But at no time prior to 2 o'clock yesterday had Mr Drew, or anyone else, made you aware of concerns over the use of subcontractors, is that correct?---I am going to say formally that we need to address this issue, no.
PN314
No one has raised it with you?---Mr Drew has mentioned to me in many of my telephone conversations to him since yesterday that the subcontractors are to do basement cleans is concerning some people.
PN315
Well, since 2 o'clock yesterday they walked off the job so that is a pretty good guess by Mr Drew. But prior to that Mr Drew has not spoken to you about any concerns being raised?---Concerns about contractors are, in general terms - as I said to you before we use up to 10, 11 or 12 subcontractors, and - - -
PN316
Specifically about the use of subcontractors to do work that is normally performed by Skilled employees. That is pretty blunt. That
has never been raised with you?
---It has been raised in a context of how effective our work is carried out for the client so the client is satisfied so that we
can do the pot line work. And we are satisfied. Skilled is satisfied with the use of Compac Main to do the basement cleans. Just
like I am satisfied with using the guys to do the welding, the cutting, the other work that is on site. We have in-sourced some
of the work that was previously done by other contractors and given Skilled workers those tasks.
PN317
I am not talking about the work, but I am actually trying to get to the issue of you have no prior knowledge of concerns about the use of subcontractors?---In general terms I have heard the conversations about contractors. It is a general discussion.
PN318
So it was a general discussion. Did you realise it was a hot issue?---No I did not.
PN319
But you do now don't you?---I do now.
**** MALCOLM REX ROBERTS XXN MR MORRISON
PN320
You also yesterday had discussions with Mr Neil Day from Hydro?---I did.
PN321
That was yesterday those discussions?---That would have been after, probably three, a quarter past three.
PN322
It was about the pots and I am taking this off Skilled 2, an email that was sent to you. Do you have a copy of that email?---Not in front of me right now. That was the one that Mr Byrnes - that's right, that's the one.
PN323
Now, there is three pots mentioned, is that correct?---That's correct.
PN324
Pot 307 was due to go back on at 2 pm on Tuesday and it didn't did it?---That's correct.
PN325
There is a potential financial penalty, you are saying, in accordance with Skilled 1 that your company may face. Is that correct?---That's correct.
PN326
But it also says they are engaging Moncriefs to ensure that this is done this morning?---That is what I am reading, yes.
PN327
So we will assume now that pot 307 is back on line, is that correct?---I can't assume that. I don't know how successful the welding has been. Moncriefs is a contractor that we use, because we use these people, they are specialist welders. If they have been engaged directly by Hydro to do the work I am not sure whether they have carried it out.
PN328
Pot 25 would be due to be handed back to production on Friday and it says:
PN329
It now looks like we will lose at least three days due to the long weekend.
PN330
Does your attachment H that a penalty count weekends and public holidays does it?---No. It includes weekend. Our program is scheduled around working days. We don't work weekends or public holidays unless it is absolutely necessary.
PN331
So if pot 25, which was due on Friday, becomes available on Tuesday, by my reading of that it is one day late. Is that - - - ?---No it is three days late.
PN332
THE COMMISSIONER: Because H says measured as 24 hour blocks. Is that the - - - ?---That's correct.
**** MALCOLM REX ROBERTS XXN MR MORRISON
PN333
I think the days are measured as - - - ?---We cannot - there is other words behind that that we cannot claim as a qualifying event, a qualifying delay, weekends or public holidays. That is why we work around normally five working days of the week, and the weekend is part of the 13 days. It normally takes us two calendar weeks plus a few days. That is where we get the 13 from, the two calendar weeks to do the work.
PN334
MR MORRISON: So it will be - the 13th day would have been Friday is that correct?---I can't tell you that for sure, I don't know. Pot 25 could be late. It could have been 20 days late, it could have been 15, I don't know.
PN335
I see, and part of that lateness you are alleging is because of the industrial action that you say is occurring, because you have been told by Mr Drew?---Directly now, yes, as of this morning when this email refers here.
PN336
This email was sent by Mr Neil Day at 6.56 am this morning. Is that correct?
---That's correct.
PN337
You were speaking to him from yesterday afternoon, is that correct?---That's correct.
PN338
Did you ask him to send you this email?---Absolutely not.
PN339
He did this all on his own volition did he?---That would be my understanding. I was in the office this morning. I had no knowledge of this. I printed it out this morning to take with me for my meeting with Mr Borobokas.
PN340
No further questions, thank you.
PN341
THE COMMISSIONER: Mr Beard did you wish to ask any questions?
MR BEARD: Thank you, Commissioner, and I do thank you for the adjournment.
<CROSS-EXAMINATION BY MR BEARD [5.02PM]
PN343
MR BYRNES: Mr Roberts, I needed to get an adjournment because the discussion I had with Mr Keen earlier today he said that there was a mass meeting of all employees last week and following that meeting he did in fact contact you and discussed three issues to be discussed in regards to a meeting that was going to be held tomorrow. Those matters being a drug and alcohol policy, also the application of bonus payment, and also in regards to the use of contractors. And that is why I did in fact leave during your testimony to check with Mr Keen that his recollection was in fact correct. Does that sort of give your memory a bit of a jog if I say that Mr Keen said that discussion occurred last week, and then also on speaking to you last night, that those matters were again re-affirmed, because he wanted to make sure that they were in fact on tomorrow's agenda?---I never spoke with Mr Keen last week. He contacted me and left a message on my voice mail to return his call, and I did not return the call until Monday. He may have intended to do something but I didn't talk to him.
**** MALCOLM REX ROBERTS XXN MR BEARD
PN344
As I say obviously, it has come as a surprise to you because Mr Keen is under the very strong impression that those three particular issues were raised following the mass meeting last week. So it is a matter for you fellows to have further discussions tomorrow. Did you in fact supply Mr Keen with the details of your employees?---No, I did not.
PN345
Why was that?---I was not - I am thinking in terms of confidential information, after hours contact numbers, privacy, all that. That was my immediate thought and I said to John look I would contact some employees to support him in getting the members back to work. And offered my conversation with each of the people would be to the ring the union and talk to them. I did not think that I was able to give after hours telephone numbers to John Keen.
PN346
So John didn't discuss with you that he wanted that information for the prospect to trying to get people back to work as soon as possible?---We did, we did.
PN347
You sound as though you actually haven't taken that opportunity?---Well, the only opportunity - I offered support to contact people. I felt that I would be in some regards, whether I was able to give after hours telephone numbers to John Keen. I am not - it is not clear in my mind which members belong to which union. I haven't got that list. I don't know who belongs to the AWU, who belongs to the AMWU. Quite clearly I don't.
PN348
Obviously you didn't believe it was worthwhile following that up today?---No. I received a phone call from another member of your union today, and returned the call.
PN349
But you see the company hasn't been pro-active in trying to contact people or say to the union the opportunity to contacting people to get back to work. I won't pursue that.
PN350
THE COMMISSIONER: Sorry, Mr Byrnes, is there something you wanted to say?
PN351
MR BYRNES: Sorry, Commissioner. No I withdraw it. I was just going to say is it a question or a submission.
PN352
MR BEARD: I had withdrawn it.
**** MALCOLM REX ROBERTS XXN MR BEARD
PN353
MR BYRNES: My apologies Commissioner.
PN354
MR BEARD: It may be that Mr Keen does actually need to be part of this process Commissioner, rather than a submission from me as such.
PN355
THE COMMISSIONER: Where is he at the moment?
PN356
MR BEARD: Obviously that is not going to happen today.
PN357
THE COMMISSIONER: He is up at Newcastle at the moment I presume?
PN358
MR BEARD: That's correct, and I do believe the real issue here is in regards to the 127 matter, it gets people back to work. So
at this stage I will leave my questions to Mr Roberts. We just foreshadow there may in fact be a necessity
to - - -
PN359
THE COMMISSIONER: Sorry, there may what?
PN360
MR BEARD: There may be a necessity for Mr Keen to be present - it may be necessary for this matter to be carried over further than today. Thank you.
PN361
THE COMMISSIONER: Ms Kastoun did you wish to ask any questions?
PN362
MS KASTOUN: No, Commissioner.
PN363
THE COMMISSIONER: Mr Byrnes, did you want to re-examine?
MR BYRNES: Yes, just briefly Commissioner.
<RE-EXAMINATION BY MR BYRNES [5.07PM]
PN365
MR BYRNES: Mr Roberts you ..... Mr Morrison that a number of casual employees had their employment terminated, that Mr Morrison asserted nine. He put it to you nine not five. Did Compac Main suffer any - did you limit or reduce the amount you used Compac Main around the same time for the services they provided in the cleaning of pots, the basements of pots?---At that time we requested that Compac Main reduce their workers by half.
PN366
Given that there is presently a strike on, what are, apart from liaising with the unions, what are your other duties or concerns arising from that that you need to attend to during working hours?---Our management team is still on site. We are still planning for work. We have tried to - - -
**** MALCOLM REX ROBERTS RXN MR BYRNES
PN367
MR MORRISON: Commissioner, as much as this is interesting I can't see how that arises out of my cross-examination.
PN368
MR BYRNES: It does directly. I think what Mr Morrison was trying to put to Mr Roberts that Mr Roberts had somehow - it was remiss
of Mr Roberts that he wasn't spending every moment on the phone to the unions asking them to
- canvassing the issue of contractors. I am simply asking Mr Roberts about the duties that he needs to attend to, to ensure - the
various duties that he needs to attend to in a circumstance or situation like this. It has been fairly squarely put to him I think,
that he hasn't been ..... pro-active in trying to get employees back to work. I am just trying to question Mr Roberts about what
it was that in fact he was doing yesterday afternoon and the importance of it or otherwise.
PN369
THE COMMISSIONER: You can continue, Mr Byrnes.
PN370
MR BYRNES: Thank you, Commissioner. Mr Roberts, what were the matters that you needed to attend to, having regard to the fact that
employees have stopped work?---My role as services manager, I cover a lot of clients. We have got matters in particular critical
stages with a number of key clients in New South Wales. For example, yesterday I couldn't be contacted at midday because I was attending
a serious issue with a key client here in New South Wales. Subsequent to that - I mean I was making phone calls back to Phillip
Drew on site. Dealing with other matters with other clients here in New South Wales. I am not
100 per cent sure of what you - on site at Hydro we are viewed by the client as still the service provider and I have been insisting
that Phillip Drew keep working the other subcontractors that we have in place. One of those being Compac Main. We recently, on
Monday actually, we were awarded another piece of business on site which they are attending yesterday and today. I have other welding
work, other construction work that is on critical parts for our business, and we must maintain this.
PN371
The meeting is at 10 o'clock tomorrow morning, it is your clear understanding that you and Mr Keen agreed that was to be about one issue which is drug and alcohol?---The drug and alcohol on Monday. When I spoke to John Keen on Monday, he thanked me for phoning him back. I mean I didn't phone him back last week. The matter went out of my head and I thought, well gee I had better ring John back, and I confirmed the meeting in a facsimile on Monday evening.
**** MALCOLM REX ROBERTS RXN MR BYRNES
PN372
Do you have a copy of that facsimile here?---I do.
PN373
When did you send that facsimile?---I kept a copy, I just attached a confirmation. That went out of my office at 19.29 on 18 April, almost 7.30.
PN374
Is that a brief facsimile?---It is just two or three lines.
PN375
Would you mind reading that for us Mr Roberts?---
PN376
Dear John, just confirming our meeting Thursday 21 April at 10.30 am at your offices. The purpose of the meeting is to discuss the amendments agreed by a facsimile dated 11 March 2005 by our Paul Borobokas in relation to the Skills D and A policy and its application at the Hydro Kurri Kurri site. I look forward to our discussions.
PN377
Did you hear anything from Mr Keen after the sending of that facsimile?---Not until yesterday afternoon.
PN378
That facsimile there refers to Mr Borobokas' 11 March facsimile is that correct?
---Yes.
PN379
That facsimile do you have a copy of that with you?---I do, that is here as well.
PN380
What issue does that canvass or does that address, that 11 March facsimile?---This facsimile is an outcome for a meeting that Mr Borobokas and I attended at the AWU office in Newcastle on Monday 7 March where we discussed the Skilled drug and alcohol policy and its application for drug testing of our employees on site at Hydro.
PN381
Did that meeting discuss subcontractors?---No.
PN382
There was no discussion of subcontractors at that meeting at all?---Not to my recollection, no.
PN383
So you are saying that that chain of correspondence establishes that drug and alcohol testing was the only issue on the agenda for tomorrow's meeting?---Yes.
PN384
Could I tender those, Commissioner.
**** MALCOLM REX ROBERTS RXN MR BYRNES
PN385
THE COMMISSIONER: Is there any difficulty with that?
PN386
MR MORRISON: There is no difficulty from us.
PN387
MR BYRNES: The only problem with that, Commissioner, is I think that they are the only copies we have with us today.
PN388
THE COMMISSIONER: When we have an adjournment when Mr Roberts is finished, Mr Byrnes, I am sure we can arrange for copies.
PN389
MR BYRNES: Certainly, Commissioner. I think that concludes - - -
PN390
THE COMMISSIONER: That's it is it? Maybe I could have the documents and then I will mark them and then we can copy them. But I want a break and then I presume that is the end of your evidence Mr Byrnes?
PN391
MR BYRNES: It is.
THE COMMISSIONER: So, Mr Morrissey, if you can then be ready to call your witnesses then please.
EXHIBIT #SKILLED3 FACSIMILE DATED 11/03/2005
EXHIBIT #SKILLED4 FACSIMILE DATED 18/04/2005
We will just break for about two minutes, and you are excused Mr Roberts, thank you. You can remain in the court.
<THE WITNESS WITHDREW [5.15PM]
<SHORT ADJOURNMENT [5.15PM]
<RESUMED [5.19PM]
PN394
THE COMMISSIONER: Yes, Mr Morrison?
MR MORRISON: Yes, Commissioner, for our first witness, I would like to call Mr Robert Dick.
<ROBERT DAVID DICK, SWORN [5.19PM]
<EXAMINATION-IN-CHIEF BY MR MORRISON
PN396
THE COMMISSIONER: Yes, Mr Morrison?
MR MORRISON: Thank you, Commissioner. Mr Dick, just for the record, could you please tell us what position you hold with Skilled Engineering?---I'm a maintenance fitter with the Skilled Engineering rebuild crew.
PN398
Where are they located?---At Hydro aluminium worksite.
PN399
What work do you perform there?---My duties are to do with the mechanical rebuilds of the pots, as they're - to do with the turnaround times.
PN400
Did you attend a meeting of employees at the site yesterday?---Yes, I did.
PN401
Approximately how many workers were there at the meeting?---Approximately 25, I'd say, yes.
PN402
Could you say what officials from the various unions were in attendance at that meeting?---Yes, they were.
PN403
Can you tell us what officials were in attendance?---Melissa Kennedy was in attendance from the AMWU, an organiser with the AMWU, and John Keen was trying to be there, but he wasn't there.
PN404
So John Keen wasn't there?---No.
PN405
Were there any officials from the CEPU there?---No.
PN406
Were there any employees - I withdraw that. Were the employees who attended the meeting from all three unions that are before the Commission today?---No. There was only the two unions represented, the AWU and the AMWU.
PN407
There were no ETU members there, at the meeting?---No. No.
PN408
Do you recall what was discussed at that meeting?---Yes.
PN409
Could you please tell us what was discussed at that meeting?---The issue that was raised is that they were bringing contractors in to do the men's work and the men were very upset about it.
**** MALCOLM REX ROBERTS XN MR MORRISON
PN410
Was this the first time that the bringing in of subcontractors had been raised by the men?---Yes.
PN411
So it hadn't been discussed previously?---It had been discussed, but it hadn't been - hadn't happened.
PN412
I am sorry? I am not clear what that meant?---Well, they - - -
PN413
I am hearing a vacuum cleaner, Commissioner, which is - - -
PN414
THE COMMISSIONER: Yes. Sorry, Mr Morrison.
PN415
MR MORRISON: Mr Dick, had the issue of subcontractors been discussed previously?---Well, it had been at a - a meeting that I attended on the 4th, I think, yes.
PN416
The 4th of?---The 4 of April 2005, I think, in the AMWU offices at Mayfield.
PN417
You attended a meeting on 4 April; where was this meeting held?---At the offices of the AWU at Mayfield.
PN418
At Mayfield?---Yes.
PN419
Who was in attendance at this meeting?---John - I can't think of his name. John Keen was not available, so another gentleman from the AWU was in attendance and Melissa wasn't available, she was on holidays, so another organiser from the AMWU was there. There was no one there from the ETU.
PN420
No one there from the ETU?---No.
PN421
Was anyone there from Skilled management?---Yes, there was. Malcolm Roberts was in attendance.
PN422
Before you go on, Mr Dick, what are you using to prompt your knowledge, if I could ask?---My notebook that I take notes on during meetings.
PN423
Continue, who else was in attendance at that meeting?---Phil Drew, Paul Borobokas.
**** MALCOLM REX ROBERTS XN MR MORRISON
PN424
All three gentlemen were at that meeting?---Yes. Yes.
PN425
Was the issue of subcontractors raised at that meeting?---Yes. It - I think it was - hang on, I might have been wrong. It says sub-labour,
not back paid, so yes. To
1 July 2004, not paid overtime on 25 per cent loading. I think that's what it applies to, so - - -
PN426
Well, is it your recollection that the use of subcontractors was discussed at that meeting or not, Mr Dick?---Well, no. No. Sorry.
PN427
It wasn't?---No. I think I'm misreading my own note.
PN428
Was the issue of subcontractors raised at any time subsequent to that, but prior to yesterday, with anyone from management?---No. No.
PN429
So no one had raised the issue of subcontractors with anyone from management prior to yesterday?---No.
PN430
To your knowledge?---To my knowledge, yes. Only the co-delegate the week before, when I was on holidays.
PN431
What do you recall happened there?---Well, on the Thursday he apparently raised it with Phil Drew and had a very heated argument with him and as a consequence, he's had the rest of the week off and he's still not back at work yet, so - that's Matthew Nixon.
PN432
Matthew Nixon had a discussion with Phil Drew?---Yes.
PN433
About the use of subcontractors?---Yes. Yes, I was sick on the Monday, I went to work Tuesday and had the next three days off, so
I wasn't really well, so
- Matthew had the meeting.
PN434
There was, as we have established, a meeting yesterday?---Yes.
PN435
Is that correct?---Yes.
PN436
There was discussion at the meeting about the subcontractors, is that correct?
---Yes. That was brought up. That was a major issue the guys had with the subcontractors being on site, taking their work off
them, which was traditionally theirs.
**** MALCOLM REX ROBERTS XN MR MORRISON
PN437
What was put to the meeting by Ms Kennedy? Do you recall?---Ms Kennedy explained to the men the different options that they had and
I think there was three options. She said they could take some sort of action, they could - they could go to the - wait until Thursday
and have a meeting with the management, which was the schedule that morning because previously that - on 4 April, we'd been trying
to get the management to come to a meeting since 4 April to discuss these issues. These issues, it was about the drug and alcohol
policy, and about these - the
sub-labour not being paid for overtime and the 25 per cent loading and all those issues. But what they - the men were most upset
about was these guys taking their jobs off them.
PN438
Who raised the issue of taking action at the meeting? Do you recall?---It came from the - in the AWU members.
PN439
Was he an official of the AWU?---No. No. Their delegate is currently in Scotland on family business - - -
PN440
So was it just a member of the union?---Yes, it was a member of the union, yes.
PN441
Do you recall, to the best of your ability, what he said?---He just said that they were unhappy with the - these men taking their
jobs and not being - what did he say - not being trained properly to do these jobs. You know, they have been taken up there by a
fellow to show them how to use the excavator. Apparently Skilled have put Billy in a training position, one of the other labourers,
in a training position and he's untrained. He's not a trainer. He hasn't gone through the TAFE certificate or anything, but the
other two trainers, Mark Johns, which is the union delegate for the AWU, he has gone through the training scheme and he was going
to be one of the trainers, and the other trainer was Steve O'Donnell who was
- who has since left the company. So they had this other position, I think, so they put Billy - I can't think of his last name,
sorry - in this position to train these men and - - -
PN442
So you're saying he's training them, but he's not qualified?---Yes. Yes. He took them up and showed them how to use the excavator,
how to use forklifts, all the
- the training stuff that we were trying to implement so to get the men trained up properly, but we need someone who's properly
trained to train them.
**** MALCOLM REX ROBERTS XN MR MORRISON
PN443
The company, Compac Main, are you aware of what work they are actually doing at the site?---Yes. With the conversation I had with Phil Drew before I spoke with - to Paul on the phone, he was saying that Compac Main were brought on site to do the work while everything was flat out. We had 22 pots down, they were brought on site just to help the guys out that do basements, and that was the understanding that I was under. But I've since found that he plans to use them for other work on the site.
PN444
Can you give us some idea of what other work they actually have done on site?
---Well, they've been - they've painted out the offices, which work is normally done when the job drops off. The Skilled labour
usually does that job. The - being used as truck drivers to move SPL stuff to the SPL shed, which is a bath product which is a by-product
of the aluminium process. They also been doing maintenance work on some of the vehicles. Cleaning and various other stuff that's
usually done when the work tapers off and our guys get that work to do, when they're looking for stuff for our guys to do to keep
the crew together, and they're doing that work. So - - -
PN445
Now, getting back to the meeting yesterday at lunchtime, you told us a motion was put, or a position was put by a member from the meeting?---From the rank and file, yes.
PN446
Who did he put that motion to?---He put the motion to the meeting.
PN447
How was it received by the meeting?---They thought it was a good motion, yes.
PN448
Was it - - - ?---Because they're very upset at these men taking their positions.
PN449
Do you recall what Ms Kennedy said to the motion?---Well, Ms Kenney, Melissa, explained to the guys the options that they had and she also said that it was a certain option that they wanted to take, which would be illegal, but she also explained that the other option was to wait until Thursday until we had the meeting with the staff, and the other option was just going back to work. But they were that incensed that they wanted to pursue further action.
PN450
It is your recollection that Ms Kennedy said to take strike action would be illegal?---Yes. Yes.
**** MALCOLM REX ROBERTS XN MR MORRISON
PN451
How was that received by the meeting, by her saying that?---Well, they didn't seem to care, you know? They were more concerned with their losing their jobs, I think, than - they wanted some action to be taking place.
PN452
How did Ms Kennedy put or deal with the anger of the meeting?---Well, she - - -
PN453
In your opinion?---Quite well. She asked for - asked for a motion and someone put a second motion that we change the time of the
- the motion was put that the men have a - at first, someone said a 24-hour stoppage and then someone else said, no, 48. You know?
So the men were pretty upset about it and another motion that was put was that - yes, another motion that was put that the guys
- they change their times to 2 o'clock to suit the other guys a bit better, but that was - that was squashed so, yes, the meeting
voted unanimously for a 48-hour stoppage.
PN454
Now, do you recall after the meeting speaking to Paul? Do you recall speaking to Paul after the meeting?---Yes. Yes.
PN455
Was that on the telephone?---Yes, that was in Phil's - I was in Phil's office when Paul rang and I think the state manager rang and also Malcolm rang at the same time. There was a few phone calls flying around, but Paul - yes, they - Phil tried to get him on speaker phone, but couldn't work the phone out so I took the phone, and spoke to him directly, yes.
PN456
Do you recall that conversation?---Yes. Yes.
PN457
Can you tell us what you said occurred at the meeting, to Paul?---Paul asked me what the problem was and what the issue was and I explained to him the issue was - the issue was over the contractors taking the men's work and he said, do you realise this is illegal? He said, do you realise the men think - do the men know this is illegal? Do you know this is illegal? I said, yes, but the men, they're incensed with it, but that's the way they went.
PN458
Do you recall discussion with Paul about the words that Ms Kennedy said?---No, I don't recall him saying anything about Ms Kennedy saying anything. I think he was asking me what went on. He didn't say - I think he said, did Ms Kennedy explain to the rank and file that it was illegal?
PN459
What did you say?---Yes, she did.
**** MALCOLM REX ROBERTS XN MR MORRISON
PN460
Did you tell Paul that Ms Kennedy, when she explained the three options, put strike action as an option?---Yes, I'm not sure whether I explained to Paul that, the three options. Not quite sure on that.
PN461
You can't recall?---No, I can't recall saying that, but he was asking, did
Ms Kennedy - only that did she know that it was illegal. Of course she knew. She's an organiser, I suppose she would, but she
told the men at the meeting that it was illegal.
PN462
She was very clear on that?---Yes. Extremely. So the men were that incensed that they wanted to take action.
PN463
No further questions.
PN464
THE COMMISSIONER: Mr Beard, did you have any questions?
PN465
MR BEARD: I have no questions, Commissioner.
THE COMMISSIONER: Ms Kastoun?
<CROSS-EXAMINATION BY MS KASTOUN [5.39PM]
PN467
MR KASTOUN: Mr Dick, among those employees who are out on strike, are you aware of any of those being ETU members?---No, I'm not. But Jeff Chadpan is the electrician at work, he's on holidays. I know he's on holidays. I'm not sure about the other fellow.
PN468
Thank you.
PN469
THE COMMISSIONER: Mr Byrnes?
MR BYRNES: May it please you, Commissioner.
<CROSS-EXAMINATION BY MR BYRNES [5.39PM]
PN471
MR BYRNES: Mr Dick, you refer to a meeting of 4 April 2005, you say the issue of contract labour wasn't canvassed or discussed during
that meeting?
---Yes, that's true.
**** MALCOLM REX ROBERTS XXN MR BYRNES
PN472
That's correct? It's also true to say - excuse me for a moment? It's also true to say, isn't it, Mr Dick, that you are the delegate, are you not?---I am the AMWU delegate, yes.
PN473
The AMWU delegate, yes. Is it true to say that you didn't raise the issue of contract labour with any management on site, is that correct, after the 4 April meeting?---After the 4 - no. No.
PN474
No. You had intention to do so, as I understand it, is that correct?---Yes. But I was ill.
PN475
But that you never got to do it?---Yes. I was ill.
PN476
Yes. Sorry, who do you say attended the 4 April 2005 meeting?---There was representatives of the two unions, the AMWU, the AWU, yes, delegates of the AWU and the - myself. Paul Borobokas sort of chaired the meeting, I think, and Malcolm Roberts and Phil Drew.
PN477
Now, is that from your recollection or from the note that you have been refreshing your memory from?---Well, that's from my recollection. I've only got partial notes here.
PN478
What do your notes say about who was at the meeting?---I know Malcolm Roberts was there because his name's in here. But - and John Keen was not available.
PN479
Mr Dick, when did you make that note?---Pardon?
PN480
When did you make that note?---I'm pretty sure it was 4 April, but - - -
PN481
Yes. I appreciate the meeting was on 4 April; when did you make the note of the meeting? Did you make it on 4 April as well?---Yes, at the meeting. While the meeting was going, so it's only - - -
PN482
Whilst the meeting was - - - ?---It was only jotting.
PN483
- - - on, so we can call it a contemporaneous note?---Yes.
PN484
Right. Are you sure that Mr Borobokas was in attendance?---Yes.
**** MALCOLM REX ROBERTS XXN MR BYRNES
PN485
Paul Borobokas? Are you sure?---Yes.
PN486
You're certain of that?---Yes.
PN487
You have no doubt about that at all?---No.
PN488
What if I indicated to you Mr Borobokas was in Melbourne on that day?---Well, I am sure he was there.
PN489
You're certain he was there?---Yes.
PN490
I put it to you that he wasn't there. I put it to you that Mr Borobokas wasn't at the meeting?---On 4 April?
PN491
Yes?---Yes, well I haven't got him written here, but I'm pretty sure, from my recollection he was.
PN492
Right. So you made a note of attendees, but you didn't make a note - - - ?---No, I didn't make a note of attendees. If you'd like to have a look at it?
PN493
Yes?---It's only got Malcolm Roberts' name.
PN494
Mr Dick, I know that you made a note of that meeting; did you make a note of yesterday's stop work meeting?---I tried to, yes.
PN495
Yes. Do you have that note in front of you?---Yes.
PN496
What does that note say? Do you mind reading it?---The notes?
PN497
Yes?---Tuesday meeting:
PN498
Tuesday, April 19th 2005. Stop work meeting, 12.30 pm, Hydro car park to discuss the company's failure to reply to unions' attempts to set up meeting to discuss various issues on site.
PN499
Right. Is that it?---No, no:
PN500
Fax sent Thursday the 21st, 10.30 am. Melissa Kennedy, drug and alcohol policy, skill level, pre-employment drug and alcohol policy. Hydro don't want to get involved. Issue 2 is 24 cent loading on overtime. Meeting was supposed to be set up with Gary Clark.
**** MALCOLM REX ROBERTS XXN MR BYRNES
PN501
?---And it was outside the award that the men were getting paid. Page 36, 16(4)(c):
PN502
The third issue was the lay-off of Skilled casuals.
PN503
And that says that they hadn't refused the jobs. The management said they'd refused to do these jobs that these subcontract labour had been brought in to do, and that was an untruth:
PN504
Subcontractor nepotistic. Phil's mate.
PN505
Which is the company means Mark Brothers is one of Phil's best mates apparently:
PN506
Nine lay-off, two are back.
PN507
So in the week, two came back because their jobs ramped up again:
PN508
Options: Explain conditions. Take action. Wait until Thursday. Motion, go on strike for 48 hours. Issue, laid off workers. All maintenance work, SPL work, basements. 1 pm Thursday, carried unanimously. Amendment from the conclusion of shift, 3.30 pm.
PN509
But that was defeated. There's a list of phone numbers of the men I had to contact to tell that the meeting had been on, so they wouldn't - - -
PN510
Yes, and did - - - ?---Would go back to work, yes.
PN511
Yes. Okay. Did you discuss with Ms Kennedy prior to the meeting, the motions that were going to be put?---No. No. Because Ms Kennedy had gone to the wrong section of the car park. She'd gone to the bike shed night and all the men had been in the middle of the car park.
PN512
So are you saying you didn't get a chance to talk to Ms Kennedy at all prior to the meeting?---No.
PN513
Did you talk to any other union officials present prior to the meeting?---There was no other union official present.
**** MALCOLM REX ROBERTS XXN MR BYRNES
PN514
Did you talk to Ms Kennedy during the course of the meeting?---To say hello, yes, and spoken to her with the situation why - - -
PN515
Hold on?--- - - - why the men were going out, why the men had that situation.
PN516
Well, did you talk to Ms Kennedy prior to the motion being put, on a one-on-one basis?---Yes. I had to explain to her what the motion - what the - why the men were so upset.
PN517
Okay?---They were incensed with the - - -
PN518
Yes. So you explained that to Ms Kennedy, is that correct?---Yes, yes.
PN519
What did Ms Kennedy say to you once you explained that?---Well, she started to run the meeting. I start - I ran the meeting - we started to talk about the drug and alcohol policy. Then we - then we went onto the 25 per cent loading for the men on overtime and then the issue was brought up about the layoff of the Skilled workers in front of the casuals - in front of the subcontractors.
PN520
Yes. Did you indicate to Ms Kennedy that the men were likely to go out on strike?---No. I got no idea what the men wanted to do,
but they were pretty
- pretty upset about the whole situation.
PN521
So you didn't mention to Ms Kennedy at all the possibility that they were going to go on strike?---No.
PN522
If I can just take you to the work involving motor vehicles? You communicated sometimes employees could be used to do work on vehicles. What would that work involve?---When the work ramped down, they'd expect the men to clean the vehicles and - - -
PN523
That's washing cars, is that what it is?---Yes. Washing them down. They got trucks there and washing them down and cleaning up and just giving the men something to do so they didn't have to put them off.
PN524
It's said that that's the work that Compac Main are presently performing? Is that what you're saying?---That's one of the jobs they're doing.
PN525
Cleaning motor vehicles?---Yes.
**** MALCOLM REX ROBERTS XXN MR BYRNES
PN526
You mentioned that Ms Kennedy through the course of the meeting said that the strike was illegal. What were the actual words that she used? Can you recall what it was she specifically said in respect to that?---Yes. She explained that - about the consequences of a 127, I believe, to the men and - - -
PN527
Sorry, she mentioned the words section 127, did she?---Yes.
PN528
In the meeting?---Yes.
PN529
What did she say about section 127 orders in the meeting?---Section 127 orders apparently are orders that can make the men go back to work.
PN530
Right. Did she say anything else about it?---No. She said it contravenes - you know, it's extreme action to be taken by the men because it - they're not protected and yes, I think the 127 is what the company can do to them. That's what she told, to get them to go back to work.
PN531
Right. She indicated that to the entire meeting, did she?---Yes, yes.
PN532
She used those words?---Yes.
PN533
Okay. A section 127 order. Mr Dick, have you discussed what was said at the meeting with anybody after the meeting?---Yes. I spoke to Phil Drew because I had to inform him of what the men had - had decided.
PN534
Yes?---Also when Paul rang up, I told him what the men had decided.
PN535
Did you have any discussion with Ms Kennedy about the meeting, after the meeting?---No. She - she just said what will probably happen is we'll probably end up in the Commission, which we have.
PN536
Yes. You had a discussion with Ms Kennedy this afternoon in the Commission about the meeting?---In the Commission?
PN537
Yes. This afternoon, here at the Commission, about the meeting?---Not particularly.
PN538
Sorry, when you say not particularly, can you elaborate on that? Have you discussed yesterday's meeting with Ms Kennedy here at the
Commission or not?
---What, outside or in here?
**** MALCOLM REX ROBERTS XXN MR BYRNES
PN539
Yes. Yes?---No, we were talking about a - her baby, and her impending marriage.
PN540
Okay. So your discussions were confined to - I don't want to impose upon a private discussion except to ask, did you discuss the meeting yesterday here at the Commission today?---No.
PN541
MR MORRISON: Commissioner, can I just object? I am not sure of the relevance of this questioning, but I think it really is the
responsibility of the company to make their point, and perhaps it might be more appropriate for
Mr Dick to step outside if there's some allegation that wants to be made about some improper behaviour which I allude he's leading
to, without trying to say.
PN542
MR BYRNES: I think I have asked what I want to ask in respect of that, Commissioner. I don't want to ask any more in respect to that. Excuse me. Sorry, Commissioner. Thank you, they are my questions.
THE COMMISSIONER: Thank you. Mr Morrison?
<RE-EXAMINATION BY MR MORRISON [5.53PM]
PN544
MR MORRISON: Did you have any idea prior to the meeting at lunchtime yesterday that there would be a motion for a 48-hour stoppage?---No. No, I knew the men were pretty incensed about it. But I didn't know that it was going to be a motion for a 48-hour stoppage.
PN545
You recall the discussion about the cleaning of the motor vehicles by the employees of Compac Main?---Yes, yes. A list was given to me about the different work that they were doing.
PN546
What other work are they doing?---They're doing basement work, which was
- that was the original reason that Phil brought them in. He told - apparently told the men that that was the original reason they
were brought in, to ease the pressure on the men who were - I think we had 22 pots down at the time, so the basement work wasn't
getting done so we needed - I think he - his idea was to get these blokes in to do that work so our blokes couldn't - or they couldn't
get Skilled labour, I'm not sure. Yes. But the other - you know, driving the SPL truck and the maintenance work, that was brought
up by the members and so they were incensed that that's traditionally been their work and - - -
**** MALCOLM REX ROBERTS RXN MR MORRISON
PN547
They're doing more than cleaning motor vehicles, is that correct?---Yes, yes. Yes. They were taken up and shown how to drive the excavator. Apparently some are excavator drivers, but they've got to - every vehicle on site's got to be like a pre-op check to show they're familiarised with the vehicle so they know that the operations - safe working operations of the vehicle before they can operate, because that's the idea of the trainer. So, but unfortunately the trainer isn't trained.
PN548
No further questions, Commissioner.
PN549
THE COMMISSIONER: Can I just clarify, Mr Dick, the employees are due back at 1 o'clock tomorrow, is that the idea?---1 o'clock tomorrow
is a
meeting - - -
PN550
There's a meeting then?---Is a meeting to report back to the members in the car park on the Commission and the meeting tomorrow with the management at half past 10 in the morning. Apparently it's a meeting at half past 10 in the morning at the AWU offices in Mayfield, and that's the way we can best report back to all the men, so we've organised it for all the men to be in the car park at 1 o'clock, to report back to them.
PN551
Thank you. Is there anything arising?
PN552
MR MORRISON: I have a question arising out of your questions, Commissioner. Bearing in mind that we weren't notified of this Commission hearing until this afternoon, how did you know that there would be a need to report back of the Commission hearing at 1 o'clock tomorrow?---Well, that - it was more or less implied that this would happen.
PN553
Who implied that it would happen?---I think Paul in his reply to me and Melissa implied that this would happen in her reply to me, too.
PN554
Did she imply at the meeting of yesterday lunchtime that there would be a Commission hearing?---I can't - - -
PN555
You can't remember?---I can't recall. She may have, but I might have been writing.
PN556
Nothing further from me.
**** MALCOLM REX ROBERTS RXN MR MORRISON
PN557
THE COMMISSIONER: Mr Byrnes?
PN558
MR BYRNES: No, thank you, Commissioner.
THE COMMISSIONER: You can be excused, Mr Dick. Thank you?---Thank you.
<THE WITNESS WITHDREW [5.58PM]
THE COMMISSIONER: Mr Morrison, do you want to call Ms Kennedy, please?
<MELISSA GAYE KENNEDY, SWORN [5.58PM]
<EXAMINATION-IN-CHIEF BY MR MORRISON
PN561
MR MORRISON: Ms Kennedy, just for the record, could you please tell us what your occupation is?---I'm an industrial officer with the Australian Manufacturing Workers Union. I work in the Newcastle branch.
PN562
Ms Kennedy, do you recall attending a meeting at approximately lunchtime yesterday at the Kurri Kurri site of Hydro Aluminium?---Yes.
PN563
Do you recall what occurred at that meeting?---Yes, I do.
PN564
I wonder if you could give us a brief description of the series of events of that meeting?---I attended a meeting at the Kurri site
at 12.30 yesterday afternoon. The reason that I was at the meeting was I was called by the union delegate, Robert Dick, on the day
before concerning issues around subcontract labour working on the site, hired by Skilled Engineering, and the proposed - there was
redundancy - not redundancies, layoffs of casuals as a result of subcontract labour being there. There was concerns from the employees
that these subcontract labour had been performing skills that are normally performed by Skilled employees, performing tasks that
are normally employed by Skilled employees. I attended the meeting. We - the meeting was chaired by Mr Dick, the AMWU delegate.
We commenced the meeting. There were a number of issues that were discussed besides the subcontract labour, one being the drug
and alcohol policy; another being a 25 per cent loading of casual employees that work as supplementary labour who were also present
at that meeting, and the primary reason was about the subcontract labour. We dealt with the drug and alcohol policy first, then
the other matter, and then we finished with the subcontract labour. It was also raised by a Mr Les Stace who is a supervisor that
works on site. He addressed the meeting and said that when the casual employees were laid off, that he addressed Phil Drew who is
the manager on site, about his concerns about the casual employees being laid off. He was told that they'd been laid off due to
lack of work and when he raised the concerns about the subcontractor labour being on site, the response from the manager, Mr Phil
Drew, was "I can do whatever the fuck I like". That raised quite a lot of concerns from the employees at that meeting.
There was a lot of tension, a lot of anger. It was also - I also put to the employees that I'd had a discussion with the AWU organiser,
John Keen, that morning. We'd been trying to get a meeting with Malcolm Roberts all week. We found that after we'd called the stop
work meeting at 1 o'clock, that Malcolm Roberts had sent a fax to John Keen saying that the company was prepared to meet at 10.30
on Thursday, which is tomorrow. I put that to the meeting.
Mr Keen had also said to me that he'd raised concerns with Malcolm Roberts about the work that was being performed on site and about
the casuals being laid off. Mr Roberts had told Mr Keen that the casuals had been laid off due to lack of work and that the reason
that the subcontractors were on site was that they were performing duties that the Skilled employees had refused to do - - -
**** MELISSA GAYE KENNEDY XN MR MORRISON
PN565
I might just stop you there. Mr Keen told you that's what he'd told?---That's what he'd been told by Malcolm Roberts.
PN566
No, is that what he told you he'd been told?---Yes, that's correct.
PN567
It's correct on that point?---That's correct.
PN568
Would you continue?---Yes. He told me that Mr - that Malcolm Roberts had told him that one of the primary reasons that they were there was a particular duty, cleaning basements in a pot line, that he said that the Skilled employees refused to do. Now, I put that to the employees at the mass meeting. The employees absolutely refuted that comment. They said in fact, in their words, that's one of their cream jobs that they do.
PN569
What did you understand that to mean, Ms Kennedy?---It's a job that's quite easy and they quite enjoy doing. We then put what they
wanted to do, what they seeked out of that meeting. We - the employees seek that the company listen to their concerns. They were
- it was also put to me by the employees that Matt Nixon, who is the co-AMWU delegate had also raised concerns with Phil Drew, the
branch manager, about the concerns about subcontract labour being on site. They ended up in a heated argument. As a result of the
heated argument,
Mr Nixon is actually off work this week due to stress. It was also - we decided that what we wanted out of the meeting was some
clear guidelines set between the union employees and the company about what work the subcontractors do because the employees also
had concerns and were frustrated that these subcontractor labour were utilising equipment that they utilise and it was impeding on
their productivity. They felt that they weren't getting their work done quick enough and there was very real concern about job security.
So we wanted that out of it. So we put to the - I put to the employees that they had a number of options that they could take.
I said they could take some form of action. Now, action could mean a number of things, which I explained to the employees, that
we could continue with the meeting on Thursday with the company. If we got nowhere with that, then I could enlist the assistance
of the Industrial Relations Commission, or they could take some form of industrial action, whatever way they liked, but if they took
a form of industrial action as per strike action, that that strike action would be deemed illegal, that the company may seek assistance
with the Industrial Relations Commission. They may go to the Commission to have 127 orders put on them, and there could be a raft
of ramifications down the track. That was all explained to the employees. A motion was then put, an employee from the floor put
a motion that they should take 48 hours' strike action. That motion was seconded. There was some speakers for the motion. There
was no speakers against the motion at all. There was a little bit of a debate as to what
- how long they could take the action, whether it be 48 hours or 24 hours. But
48 hours came up, so it was put that they take action for 48 hours, from 1 pm on Thursday - on Tuesday and that we would resume
back at 1 pm tomorrow for a report-back meeting as to the outcome of the meeting that we would have with Skilled Engineering tomorrow
at 10.30. Then that motion was put to all the employees and it was voted on and accepted unanimously.
**** MELISSA GAYE KENNEDY XN MR MORRISON
PN570
Did you, during this meeting, speak about the motion to take the 48-hour action?
---Did I?
PN571
Speak about or to the motion to take the 48-hour action?---No. Not to my recollection. All I spoke about was - there was questions put to me by AWU members about concerns that if they took the action, whether that action would deem - whether they would be fined, was - I spoke to them about - explained to them about how the system works and how the company can put the - put 127 orders in and if we defied the 127 orders, then there could be possibilities down the track that the union and/or the delegates or whatever could be fined. I said that that's - that's an extreme case. That was about all - to my recollection, that was about all I spoke in regards to strike action.
PN572
How would you describe the mood of the meeting?---Very angry. Very, very angry. Very upset. They're very, very concerned about job security. There was a lot of concerns about how much the subcontract labour are being paid, as to whether they're being paid less than the employees there and that could undermine their conditions. That was - that's a very real concern and they're very angry and concerned about that.
PN573
Once the motion had been passed to take the 48-hour strike action, did you attempt to discourage the workers from taking that action?---No, I did not. That's not AMWU policy, to discourage. I cannot direct employees to do anything. I'm at the mercy of what the membership want. If the membership want to go on strike, then it's - then that's their choice. They voted unanimously for that. I have to support their motion.
PN574
But did you give them advice of the consequences of that action?---Yes, I did. Yes, I did. I explained that before they voted on the motion.
PN575
Do you feel you put that forcefully?---Yes, I do.
PN576
Subsequent to the meeting, did you speak to anyone from the company about the decision to take industrial action?---Prior to the meeting?
PN577
No, subsequent?---Subsequent to the meeting? I spoke to Mr Paul Borobokas who rang me as I was driving back to the office.
**** MELISSA GAYE KENNEDY XN MR MORRISON
PN578
What was the nature of that conversation?---He'd actually left a phone message while the meeting was still going ahead. When I got in the car to drive home - to drive back to the office, I was about 5 minutes down the road and he rang. I said to him, that was quick. I was actually going - I was hoping he'd give me a chance to get back to the office so I could ring him. He put it to me that the strike was illegal, and was I aware that the strike was illegal and went on about the fact that the strike was illegal. I put it back to him that I'm a union official, I'm well-aware of the legislation. He put it to me that I encouraged the employees to go out on strike. I said, no, I did not. I said that I told the - I suggested the employees take some sort of action. I never said that they should go on strike. We ended up in a bit of a discussion about why they were on strike, why the subcontract labour is there. He said to me that why didn't we follow the disputes procedure? I told him that we'd tried to follow the disputes procedure, but the branch manager come back with a comment that he could do whatever he liked. We had some more discussion about that. Then he asked me what I wanted and I explained to him what - that we wanted to meet with the company and negotiate some sort of parameters as to what the subcontractors can do, and that would not be work that's normally performed by Skilled employees and I did not want them utilising the equipment that the Skilled employees utilised because it was impeding their work.
PN579
Now, going back to the meeting at the workplace earlier that day, were you the only union official in attendance?---Yes, I was.
PN580
Was the workforce broken into the various union factions?---Were they broken up into?
PN581
Well, was there a group of AMU members there and a group of AWU members there?---No. Not to my knowledge. There was several AWU members sitting together in one section, but I don't believe that they were broke - in factions, no.
PN582
Were there any workers who were on site, to your knowledge, that didn't attend the meeting?---Were there any workers - - -
PN583
Workers on site, that you're aware of, that didn't attend the meeting?---Not that I'm aware of.
PN584
So would you say, to the best of your knowledge, the entire workforce was there?
---To the best of my knowledge, yes.
**** MELISSA GAYE KENNEDY XN MR MORRISON
PN585
Now, getting back to the phone conversation with members of management, after Paul spoke to you on the phone, did anybody else from
the company contact you?
---No.
PN586
Did anyone from the company contact you today?---No.
PN587
Has there been any discussion, to your knowledge, about what will be the topics, the agenda at the meeting tomorrow?---No. No. To my knowledge, the - I'd left it for John Keen to organise the meeting. Some of these things, issues, arose while I was on annual leave and I returned from annual leave Monday last week, and John Keen contacted me on the Monday last week regarding the concerns about the subcontractors and said to me that he'd been discussing it with Malcolm Roberts, trying to seek a meeting. I was happy for him to continue that, the meeting was going to include both of us and to my knowledge, Malcolm Roberts was aware of that.
PN588
Did you intend to attend that meeting tomorrow morning?---Yes, I do.
PN589
Are you aware that the meeting of the workers is scheduled for 1 pm tomorrow?
---Yes, that's correct.
PN590
Why is it scheduled for 1 pm tomorrow?---Because the workers had decided that they would - they would attend the meeting at 1 o'clock and that would mean that for 48 hours, everybody lost equal amount of time.
PN591
Will you be doing a report-back at that meeting?---Yes.
PN592
You will be taking a positive role in that meeting, do you feel?---Yes, I feel. The intention of the meeting was to be a report-back meeting of the outcomes so that we would hope that that would be a positive outcome.
PN593
Do you have any preconceived ideas of what the outcome of that meeting may be tomorrow at 1.00?---Not pre - we did discuss at the meeting that there could be either a positive outcome for us or there could be a negative outcome for us, ie. we could be ordered back to work. We discussed the very real possibility that that could happen and what we would do if that happened. The - we - I suggested that the employees give the union delegate, Robert Dick, their contact details, that if we were ordered back to work, that we may need to contact them for that reason. So there was - we discussed both positive and negative outcomes.
**** MELISSA GAYE KENNEDY XN MR MORRISON
PN594
No further questions, thank you.
PN595
THE COMMISSIONER: Mr Beard?
PN596
MR BEARD: I have no questions, Commissioner.
PN597
THE COMMISSIONER: Ms Kastoun? No? Mr Byrnes?
MR BYRNES: Thank you, Commissioner.
<CROSS-EXAMINATION BY MR BYRNES [6.14PM]
PN599
MR BYRNES: Ms Kennedy, are you familiar with the certified agreement that covers the relative employees, the Skilled Engineering Kurri Kurri Aluminium Smelter Site Agreement?---Yes.
PN600
When was that entered into?---I beg your pardon?
PN601
When was that entered into?---Engineered to?
PN602
No, I am sorry, when was that entered into?---Entered?
PN603
Or when was that certified?---On 7 April.
PN604
Yes. So you'd agree it's newly-implemented, is that correct?---That's correct.
PN605
Yes. Why is it that this issue wasn't then included in that certified agreement?
---Well, to our knowledge, when the enterprise agreement was being negotiated, the company never even mentioned their intention
of bringing subcontract labour onto site.
**** MELISSA GAYE KENNEDY XXN MR BYRNES
PN606
Well, the subcontract labour had been there since January. I put it to you that the subcontract labour had in fact been on site performing
those tasks since January, so perhaps you might like to reflect again? Why wasn't this issue raised in the certified agreement?---This
certified agreement was negotiated last year. It was agreed upon in June last year. It went to the Commission for certification
in October last year and was rejected due to the Electrolux decision. When we went back and met with the company after the Electrolux
decision, it was rejected on the grounds of, I believe it was, payroll deductions, or something, to my knowledge. I never negotiated
the enterprise agreement. Mr Gerry Moen, who was the state official with the AMWU prior to me negotiated that agreement. Now, the
only discussions that we had at the time after October was about fixing up the enterprise agreement to take into the Commission's
concerns surrounding payroll deductions. Those things were sorted out and the agreement was then
re-presented for certification. We didn't feel that there was a need at the time - and that was all discussed prior to Christmas.
We didn't feel there was a real need at the time to talk about subcontract labour coming onto site in January. It wasn't to my
knowledge that subcontract labour had come on site and become any real concern until last week when I returned from annual leave.
PN607
Right. So was any other officer of the AMWU made aware of it?---Yes.
Mr Daniel Wallace was looking after Skilled Engineering while I was off.
PN608
Was he made aware of it?---Of the subcontract labour?
PN609
Yes, issue?---Issue? While I was on annual leave, yes, he was made aware of it and he brought it to my attention as soon as I returned on the Monday - - -
PN610
Who made him aware of it?---The employees.
PN611
Right. Are you familiar with clause 22 of the certified agreement in respect of a dispute procedure?---Yes, I am.
PN612
Right. You said before that you considered that the dispute procedure had been adhered to. On what basis do you make that assertion?---The disputes procedure talks about employees raising concerns to the company, initial concerns to the company, and but also talks about delegates raising concerns to the company. Now, both an employee who is a member and an AMWU co-delegate who was acting as the delegate - as the other AMWU delegate was off on sick leave - also raised concerns with the manager. Both got the same response from the manager, so we felt that that disputes procedure had been stonewalled by management.
**** MELISSA GAYE KENNEDY XXN MR BYRNES
PN613
Well - - - ?---We believe that management, not the employees, failed to adhere to the disputes procedure.
PN614
Yes. So you had a belief the disputes procedure hadn't been complied with? Is that correct?---I had a belief.
PN615
Yes?---Yes.
PN616
There are a number of stages for a disputes procedure, aren't there?---Yes.
PN617
Yes. Let me just take you through it. Have you got it in front of you?---I'm actually getting it for you. Go ahead.
PN618
Yes. Look at 22.2.1(b). Are you saying that that stage occurred?---
PN619
Matter is not resolved, such -
PN620
We had arranged to meet with the company at 10.30 tomorrow.
PN621
Yes. So you're saying that you believe that you didn't get any satisfaction from Mr Philip Drew, is that correct?---That's correct.
PN622
At the first level, and you'd arranged for a meeting to occur, the second level? Is that correct?---We had arranged for a meeting. It took us a week to arrange a meeting because management did not get back in contact with the union when the union raised to meet with management. It took them a week. By that time, the employees wanted to go out on strike last week because of the frustration of management's lack of response to the union trying to progress the disputes procedure.
PN623
A meeting was agreed to, was it not?---It was agreed to.
PN624
So you'd say that whilst - well, step 22.2.1(a), on your analysis, has been satisfied. You'd agree, however, that 22.2.1(b), there's no way that that has been satisfied, is there?---No, I agree it had been satisfied. May I remind you, I've just put it in my previous submissions - - -
PN625
I will just stop you there - - - ?--- - - - that I brought that to the attention - - -
**** MELISSA GAYE KENNEDY XXN MR BYRNES
PN626
THE COMMISSIONER: Ms Kennedy?--- - - - of the employees.
PN627
Ms Kennedy, can you just answer the questions, please?---Sorry.
PN628
MR BYRNES: Ms Kennedy, how many years have you been an industrial officer?---Nearly three.
PN629
You're pretty experienced with this. I put it to you, you're pretty experienced with this, aren't you?---I believe so.
PN630
You know what you're doing, and you can interpret a certified agreement, can't you?---Yes.
PN631
Now, look at 22.2.1(b) and think about what has occurred. You couldn't credibly argue that that has been satisfied in these circumstances, could you, Ms Kennedy? That that step has actually occurred?---Well, it hasn't occurred because the meeting's at 10.30 tomorrow.
PN632
Ms Kennedy, I appreciate that you say there are reasons why; I am simply putting to you that that step has not occurred, has it?---It hasn't occurred yet. We haven't met with the company until tomorrow.
PN633
And that was - - -
PN634
MR MORRISON: Commissioner, can I just object there? Ms Kennedy, in the AMWU parlance, and I understand my friend's ignorance of the unions' processes, is an industrial officer - perhaps like myself - could put a completely different interpretation - - -
PN635
MR BYRNES: She described herself as an industrial officer.
PN636
MR MORRISON: Well, an organiser. She's an organiser, and I think that's what she described herself as in my questions.
PN637
MR BYRNES: Re-examine on it.
PN638
MR MORRISON: The process of interpreting the clauses of the enterprise agreement are unfortunately left to the likes of myself in the union and that is something that, if we're going to examine on that - I don't think, though, it's outside of Ms Kennedy's expertise to get into the nitty-gritty of interpreting those particular clauses because - - -
**** MELISSA GAYE KENNEDY XXN MR BYRNES
PN639
THE COMMISSIONER: I can't even interpret them, Mr Morrison, as you well know. You're in the wrong place for interpretation of that, so perhaps we could just move on, given the time? If you could, please, Mr Byrnes?
PN640
MR BYRNES: Yes, Commissioner.
PN641
I put it to you, Ms Kennedy, the dispute procedure had not been satisfied, had not been exhausted?---No, I disagree.
PN642
I put it to you that the process of the disputes procedure had not been exhausted?
---I disagree.
PN643
I put it to you that you knew that and that's why you stated to the employees that the action that they were taking was illegal?---Everybody
knows that the action the employees took was illegal. The only time I believe that industrial action is legal is if we're negotiating
an enterprise agreement and we give
72 hours' notice.
PN644
Yes. What were the words you used to the employees in respect of the illegality of the action?---I just explained that before. I put it to the employees that the action was illegal. I put it to the employees that the company had a right to take the matter to the Industrial Relations Commission for either conciliation and/or 127 orders.
PN645
At what point did you realise that the employees were going to stop work for
48 hours?---At what point?
PN646
Yes?---Probably mid-way through the meeting.
PN647
I note that you mentioned before that there were speakers for and against the motion?---No. I said there was speakers for the motion and I said there was no speakers against.
PN648
Right. Did you think to speak against the motion at that point?---It is not my position to speak against the motion. It's my position to put to the employees what their legal rights and obligations are, as I explained to you before.
PN649
But you didn't discourage them from taking the action, did you?---I would think that by explaining that the strike was illegal, that that may discourage them.
**** MELISSA GAYE KENNEDY XXN MR BYRNES
PN650
Yes, but did you take any other steps to discourage or dissuade them?---It's not my position to direct employees - - -
PN651
No, I am not asking you that. I am asking you whether or not you took any steps to discourage or dissuade them?---I put it to the employees that they had various options to take and I put it to them that there was a meeting at 10.30 on Thursday and that we could attend that meeting and try and seek some resolution out of that meeting, and if that - if we didn't seek a satisfactory outcome I could enlist, as the union, a dispute with the Industrial Relations Commission. I put all the options, all the cards on the table for the employees to choose.
PN652
What do you say were the issues discussed at the stop work meeting? The actual industrial issues discussed at the stop work meeting?---There were three issues.
PN653
Those being?---The drug and alcohol policy, there was issues surrounding the drug and alcohol policy, unresolved issues. There's issues around the supplementary labour Skilled employees, who were also present at that meeting, not being paid 25 per cent loading when they work overtime, and there was the issues around job security surrounding the subcontract labour.
PN654
When do you say the meeting with John Keen was organised? The meeting at 10.30 tomorrow morning?---Yes.
PN655
When do you say that was - I appreciate the meeting is scheduled to be on at 10.30 tomorrow morning. When do you say that was arranged?---I told the - I started the meeting saying that it was arranged. It was brought up straight away in the meeting by the union delegate that we'd been trying to seek a meeting with the company for a week.
PN656
Yes. So - - - ?---I cut the - I cut the delegate dead and said, I'm sorry, it's - cut in there. We've been - I've been contacted by John Keen prior to coming up here, to say that Malcolm Roberts had sent him a fax to say that they would meet on Thursday.
PN657
So that fax was received prior to the stop work meeting? Is that correct?---Yes. That's correct.
PN658
I thought previously - and maybe I am mistaken and perhaps it doesn't matter
- you said it was only after the stop work meeting that Mr Roberts arranged that meeting?---No. It was after we called a stop work
meeting.
**** MELISSA GAYE KENNEDY XXN MR BYRNES
PN659
You were in a meeting that occurred on 4 April 2005 in respect of these matters?
---I was aware that there was a meeting conducted, yes.
PN660
What do you know about that meeting?---I believed that there was a meeting around the drug and alcohol policy and it was mentioned about the 25 per cent loading for the casuals, for supplementary labour.
PN661
Was supplementary labour discussed at that meeting?---I just said supplementary labour was discussed at that meeting. Not the subcontract labour.
PN662
Right. So the subcontract labour wasn't discussed at that particular meeting?
---Not to my knowledge.
PN663
Do you know why it wasn't discussed at that meeting?---It probably didn't become an issue at that meeting. The casuals were laid off on 8 April.
PN664
Yes. Ms Kennedy, what formal approaches were made by the AMWU to the company between the time the AMWU became aware of the issue, and the stop work meeting? And the calling of the stop work meeting?---I was on annual leave until Monday last week.
PN665
Yes. I understand that?---Now, I explained before that John Keen contacted me to explain the issue, as did the members. John Keen had contacted me and said that this issue was raised and he was seeking a meeting with Malcolm Roberts on behalf of both unions. I was happy for that to happen.
PN666
But whilst you were on leave, someone else performed your role, is that correct?
---Yes. That's correct.
PN667
Yes, and was he aware of the concern, the alleged concern, about the casualisation issue? Sorry, the contractor issue?---I'm not sure.
PN668
You haven't talked to him about that?---I spoke to him when I got back from holidays.
PN669
What did he say?---He said there had been - there'd been a concern about subcontract labour that he'd found out in the last week.
**** MELISSA GAYE KENNEDY XXN MR BYRNES
PN670
All right. What did he say he'd done to contact the company about it?---He didn't say he'd done anything. He left it up to me. They were laid off on the Friday and I returned to work on the Monday.
PN671
Right. What did you do about it?---We tried to seek a meeting with the company about the issue.
PN672
About this issue, or about - - - ?---About this issue, but we tied in the other issues in with this issue to save time.
PN673
Right. Was the correspondence between the parties couched in those terms?---I'm sorry?
PN674
Was the correspondence between the parties about the meeting, this meeting which is now occurring tomorrow, did it mention - what issues did it mention, to your understanding?---The three issues I outlaid to you.
PN675
Maybe Ms Kennedy can be shown, Commissioner, Skilled 3 and Skilled 4?
PN676
Ms Kennedy, you would agree, would you not, that that's correspondence passing between Mr John Keen and Mr Malcolm Roberts in respect of the meeting that you have been referring to? Have you not seen this correspondence before?---No, I haven't.
PN677
So you didn't ask to be copied in on the correspondence at all?---I didn't know that he'd forwarded any correspondence in writing to the company. I believed that it was verbal.
PN678
Right. You haven't had cause to check or to follow up in respect of that?---No, I did not. I believe that the two unions have always worked together in the past.
PN679
Would you agree - and I haven't got the benefit of the document in front of me - that in those two documents there isn't a reference
to the issue of contract labour?
---Well, I agree. There's the issue of the DNA policy.
PN680
Yes?---The meeting - the correspondence from 11 March was - is - was in relation to a meeting that we purely discussed the drug and alcohol policy.
**** MELISSA GAYE KENNEDY XXN MR BYRNES
PN681
You would agree, would you not, that that correspondence only refers to the drug and alcohol policy, is that correct?---Well, it appears, yes.
PN682
Would you agree that it would be reasonable to, well, that indeed the agenda for the meeting tomorrow - if one relied upon that correspondence alone - would be in respect of the drug and alcohol policy?---Well, in accordance to Skilled's documentation back to John Keen, yes.
PN683
Yes. Did John Keen raise any objection to you about what Skilled's written to the union in respect of this?---Sorry? Can you repeat the question?
PN684
Yes. Has John Keen raised with you any objection with what Skilled had written to him about that meeting?---No, because John Keen spoke to me and said that he'd had a phone conversation with Malcolm Roberts in regards to the subcontract labour, and agreed that that was an issue that we needed to discuss.
PN685
Yes. When did that conversation - that occurred well after that correspondence being sent, did it not?---Well, I can't honestly say whether it was before or after. I believe that it was before.
PN686
So you're saying that you had that discussion prior to that correspondence going?
---Yes.
PN687
With Mr Keen?---Yes.
PN688
A discussion where Mr Keen said to you that the meeting was about three issues?
---Yes.
PN689
In fairness, I should say that my instructions are that Mr Keen hasn't in fact raised any objection to that correspondence. Do you stand by that evidence, that you had a discussion in those terms?---I can't answer that question, that he's had an objection, because he told me - - -
PN690
No, that you had a discussion with John Keen that they were to be the two issues canvassed?---Yes, I had a discussion with John Keen prior to going to the stop work meeting on Tuesday, that those were the three issues that were to be discussed on Thursday.
PN691
Thank you, Ms Kennedy. Thank you, Commissioner.
**** MELISSA GAYE KENNEDY XXN MR BYRNES
PN692
THE COMMISSIONER: Mr Morrison?
<RE-EXAMINATION BY MR MORRISON [6.33PM]
PN693
MR MORRISON: Do you intend to attend the 10.30 meeting tomorrow?---Yes.
PN694
Do you intend to raise the issue of subcontractors at that meeting tomorrow?
---Absolutely.
PN695
No further questions.
THE COMMISSIONER: You can be excused, Ms Kennedy. Thank you.
PN697
THE COMMISSIONER: I think that's all your evidence, isn't it, Mr Morrison?
PN698
MR MORRISON: It is, Commissioner.
PN699
THE COMMISSIONER: I gather, Mr Beard and Ms Kastoun, you're not intending to call any witnesses at the moment?
PN700
MR BEARD: Well, not at the moment, Commissioner.
PN701
THE COMMISSIONER: Did you want to make submissions, Mr Byrnes?
PN702
MR BYRNES: Yes, Commissioner, if I may?
PN703
THE COMMISSIONER: Yes.
PN704
MR BYRNES: I will try and keep it brief, Commissioner. I am mindful of the time. Commissioner, the employees have stopped work
now since 12 o'clock yesterday afternoon. That stop work, as evidence has been given by Mr Roberts in respect of that, and in that
regard, I refer you to both Skilled 1 and Skilled 2, those two exhibits. That is, causing loss and damage to both Skilled Engineering
and to Skilled Engineering's client, the Hydro Aluminium company. Essentially, what has occurred, and I think this is reflected
in the evidence that was given by Mr Dick, is that the employees - and indeed, I don't think anything that
Ms Kennedy said in any way contradicted this position - that the employees have acted in flagrant, brazen disregard for the terms
of the certified agreement.
PN705
I just don't think there's any dispute whatsoever in respect of that. That is action which is causing loss to both Skilled Engineering, relevantly as the applicant in these proceedings, and also to Hydro Aluminium, and as such, we say that grounds the basis for the making of a section 127 order. We say that should be made as soon as practicable. There are some other circumstances as well that we think bear upon the Commission's discretion in this matter. One is that there was a certified agreement which has only recently been entered into. It is of great concern to Skilled that employees would act in such flagrant breach of a certified agreement that has been recently entered into.
PN706
It would send all the wrong signals to employees if in fact this was allowed to go unimpeded. It is a classic case where section 127 should apply to provide relief to Skilled in circumstances where the term of the certified agreement have been so brazenly ignored.
We make the submission and I think this is borne out on the evidence, that this matter has not been raised with the company in accordance
with the disputes procedure set out in the certified agreement. I think that
Ms Kennedy may well have a belief that the circumstances warrant a departure from the disputes resolution procedure, but I don't
think anyone could sustain a credible idea that the disputes procedure has been complied with and that all efforts have been made
to comply with that particular procedure.
PN707
Even if, Commissioner, one has some very legitimate or reasonable disagreements in terms of interpretation of that clause, it is apparent
on its face, certainly to someone of Ms Kennedy's experience, that that clause has not been complied with. We say that what has
occurred is that the company has not been given a proper opportunity to address this particular issue. There is certain muddiness
or confusion on the side of the evidence given by Ms Kennedy and certainly by
Mr Dick, as to just whether or not this issue has been squarely raised with the officers of the company.
PN708
From the evidence given by Mr Dick, Mr Dick is suggesting that it was a matter of concern to him and he kind of intended the matter be raised, but he never did. There is some evidence of an approach made to Mr Drew on the issue, but that's where the evidence of the matter being raised with the company in a formal sense begins and ends. There's this approach to Mr Drew which could on the evidence only be described as fairly low-key, and then this quantum leap to a stop work meeting which stops work being performed at all. It's that quantum leap which we say is, in the circumstances, indefensible.
PN709
Mr Roberts, on his evidence, attempted to convene a meeting to discuss what he understood - reasonably, we say understood - to be the issue, which was the drug and alcohol policy. He's convened a meeting. We say that he hasn't engaged in any deliberately evasive or obfuscatory behaviour or conduct, that he arranged that meeting, arranged it in a timely way. I note - and this is not a criticism - that Ms Kennedy was away for quite a period, that there needed to be a coordination of the meeting with Mr Keen. There was correspondence which reflected that that was occurring, yet it seems that that process has been circumvented or cut short by (1) the convening of the stop work meeting, and then (2) the motion that was passed at the stop work meeting.
PN710
We say that there is no basis for the industrial action and it's in clear breach of the certified agreement, and hence a section 127 order is warranted. I won't, Commissioner, get into the circumstances, take you through lengthy submissions, I will just keep it to that. I also, Commissioner, will just raise with you principles that I am sure you are already very familiar with on the making of section 127 orders; in particular the decision of Vice President Ross in Patrick Stevedores and Maritime Union of Australia. In that, very briefly, Commissioner, Vice President Ross indicated the Commission may consider a range of matters, including the conduct of the parties.
PN711
We say that that has been brazen, has been in a flagrant disregard for the certified agreement, the newly-made certified agreement. So that's one of the tests or factors. The second is a compliance with a dispute procedure in the award or certified agreement. I think even on the union's own evidence, I don't think they are contending that in fact it has been complied with. Indeed, Ms Kennedy has given evidence that - well, Ms Kennedy in both the discussions she has at the meeting, the stop work meeting, and then in her discussion with Mr Borobokas from Skilled, says, well, it's very clear that this is illegal action.
PN712
Yet on the other hand in evidence said, well, the disputes procedure in the circumstances, this time can be dispensed with. We say that this is a newly-made certified agreement; the disputes procedure is in there for a reason and it must be, in all circumstances, complied with. In actual fact, Commissioner, the disputes procedure itself, clause 22, contemplates the status quo being maintained. That is, that the employees remain in work at all times. So the very spirit, not only the strict terms, but the spirit of the disputes procedure, clause 22, have been flagrantly breached, we say. It is those factors discussed by Vice President Ross in that decision which we say support the making of section 127 orders.
PN713
Commissioner, I don't know whether or not you want to hear from me at the moment in respect of the terms of such orders? If you were so minded to make these orders, we would ask that the contact details of the - well, we would ask for two steps to occur, and Commissioner, if I am ahead of myself, please let me know. One would be that the employer, that is, Skilled Engineering, be able to contact the employees to let them know the terms of the orders, and secondly, that Skilled Engineering be able to give to those employees the phone number of the relevant union official so that they can confirm with that particular person that indeed those are the orders of the Commission.
PN714
Yes. Commissioner, if I may just raise with you one other issue in respect of that? If the Commission was so minded to make these orders, I note the time now which is 17 to 7, there is a 9 o'clock shift this evening. There are six employees we would like to put on for that shift, and ideally, we would like them back at 9 o'clock to minimise the damage that is being done to the company. Commissioner, if the Commission was so minded to make orders, we would also want the day workers back tomorrow morning. Their shift begins at 6 am, and any report-back meeting to occur during break periods tomorrow.
PN715
That is if the Commission is so minded to make these orders. Commissioner, I am mindful of the time. I think I have made the submissions I would like to make in those circumstances.
PN716
THE COMMISSIONER: Mr Byrnes, is there anything particularly you want to put about the CPU, in view of the evidence about whether or not they actually are involved, and the extent of that?
PN717
MR BYRNES: Yes, Commissioner. It is a little unclear, isn't it, as to whether or not they have an employees covered. I think, unless they can say that they don't, I am assuming they believe they do, they are here today.
PN718
THE COMMISSIONER: Well, probably here because they were notified of the hearing, I suspect, but anyway maybe we can deal with that.
PN719
MR BYRNES: Yes. It may be a matter for them, Commissioner. We would press for an order to be made against them unless they can demonstrate there aren't any members that are a part of this. As I understand it, it involves the entire workforce. So potentially, to include - - -
PN720
THE COMMISSIONER: I thought one was on leave?
PN721
MR MORRISON: Yes, Commissioner. I apologise, Commissioner. One is on leave, yes.
PN722
MR BYRNES: So potentially one employee. Thank you, Commissioner.
PN723
THE COMMISSIONER: Thank you. Mr Morrison?
PN724
MR MORRISON: Yes, Commissioner. Well, firstly, I would like also the Commission to bear in mind the decision of Vice President Ross, when he talks about the actions of the parties, and it is we say, a bit strange that a company so concerned with this that they have made no effort to actually contact the unions about this action, about seeing what they can do to fix it, to actually addressing the root cause of the problems. That the meeting scheduled tomorrow, number one, common sense says number one agenda item would be the use of subcontractors.
PN725
THE COMMISSIONER: Well, I suspect it will be now, Mr Morrison.
PN726
MR MORRISON: But only through the insistence of the unions. It doesn't seem to be - the company seems very blasé about it. They seem to be relying on the use of the orders as to a way to move forward, but moving on from that, Commissioner, the question is, in the reality of the order that's being sought, what were the roles of the various unions in organising or inciting the industrial action? Ms Kennedy gave very clear evidence that she did all that was within her capacity under the rules of the union to dissuade the workers from taking the industrial action they did.
PN727
Mr Dick gave evidence that in his opinion Ms Kennedy was quite forceful in trying to dissuade the workers from taking the industrial action. We say it would be harsh of the Commission in making such orders to include the AMWU as a party to those orders, or employees or officials of the union because it is clearly apparent that all the AMWU tried to do was avoid the industrial action and is prepared to do what it can to achieve a return to work, but in an appropriate way. The first opportunity the union will have to achieve that is at the meeting at 1 o'clock which was determined by the workers that have taken the industrial action.
PN728
So we say, firstly, if the Commission is inclined to make the orders as sought, is to bear in mind the actual involvement of the AMWU and its officials in the industrial action that has taken place. We are not disputing that there is industrial action occurring, to meet the prerequisites of section 127, even though we have only had, not you know, first-hand evidence but fairly strong evidence that it is occurring and then I think Mr Dick actually supplied all the proof that was necessary for that to be met, and so we're not disputing the fact that the action is occurring; what we are saying, though, is if an order is to be made, let commonsense prevail as to the parties to that order.
PN729
More to the point, Commissioner, we would be urging the Commission to use its discretionary powers that the Act allows when faced with an application for section 127 orders. The Commission, as one of its obligations, is to try and also settle matters in dispute and clearly we do have a dispute about the use of subcontractors. The more appropriate path would be for the Commission to at least encourage the parties themselves to attempt to resolve the matter before it used the very serious step of making 127 orders and the implications that flow from the making of those orders. We accept quite clearly that as Ms Kennedy said, that the action is illegal.
PN730
However, we also say that give the unions a chance to get the workers back, exercise the discretionary powers that you have in the making of those orders and the timing of those orders, if you choose to make them, and hopefully we can actually achieve what would be a fair, we say, outcome. I also won't go on for much longer on that issue. We just say that the company does not come here with clean hands. The inaction of the local manager, Phil Drew, is quite apparent. He knew it was an issue. He took, "I can do what I like". Ms Kennedy made it very clear his conditions, "I can do whatever I like", and in her words, that's where it was stonewalled. That's where any process to try and address this was stopped.
PN731
So the company comes here with grubby hands and a grubby mouth. They take a confrontational approach and it's clear that the workers were incensed by the approach of the company. So the company, in a sense, has reaped a bit of what it has sowed. The unions though, we say, Commissioner, have been involved in this very much on the periphery and any orders, if you're inclined to make them, should not include the unions as themselves as parties, but I won't go on any further. I will just leave my submissions at that, and urge the Commission to perhaps think about what will actually solve this matter rather than perpetuate it.
PN732
THE COMMISSIONER: Thank you. Mr Beard?
PN733
MR BEARD: Thank you, Commissioner. I agree with Mr Morrison, that orders under section 127, and then as foreshadowed by Mr Byrnes, the possibility of 166A; they are very serious matters. It's a shame that the company in fact hasn't sought a practical approach in regard to fixing this particular matter. They have taken a very procedural, "We'll follow 127 orders applications and that will fix the matter". I had discussions with Mr Kevin Maher, the secretary of the Newcastle AWU branch prior to coming down here this afternoon and he was very explicit in me reporting to you that the union was going to do everything possible to get the workers back as soon as possible.
PN734
We have been caught up with matters that really, I believe, haven't been pertinent to a 127 application. It's quite clear that the action undertaken by the employees wasn't correct. However, these things happen. It's a matter of looking from a practical situation and saying, what do we do? If the company had have taken the AWU's offer of providing the union with the names and contact numbers, we could have been trying to get people back today. Trying to get people for a 9 o'clock shift now I think is going to be a very difficult situation. That is, as I say, a shame that a practical approach hasn't been taken by the company.
PN735
Notwithstanding that, Mr Byrnes and Mr Morrison have spoken about orders. I haven't seen any draft orders. I don't know what particular document the company is seeking to have processed. There may be a document that has been circulated, but I haven't seen it so I don't know the parameters of the section 127 order that the company is looking to process. Again, a practical situation, we believe, is that the parties meet tomorrow at 10.30 as they have arranged to. Obviously it looks as though the agenda for the meeting will be expanded, on what the company believe was one issue on the agenda.
PN736
There will be a report-back to the employees at 1 o'clock. I believe that it would be prudent for the Commission not to issue 127 orders at this stage, however, if the employees do in fact continue their industrial action following a report-back, well then it may be that's a different situation. But as I say, Commissioner, you are very aware that 127 orders are a very serious issue. There is a commitment from the employees to go back tomorrow. As I say, it's a shame, they could have been back probably tonight or tomorrow morning, however that hasn't happened and we have to look at the best way of processing this difficult situation.
PN737
So as I say, in the absence of specific orders that the company seeks, it's difficult to make submissions in regards to the actual content that would be contained in an order. Mr Morrison has raised an issue of the unions being named in that particular document. He has made a relevant observation in regards to the conduct of the unions in this particular matter. The matter therefore, Commissioner, we believe would be dealt with in a proper manner which would enable a sounder stepping stone for good industrial relations in the future, because we do know that matters like this can produce a confrontation between employees and employer which aren't conducive to a good industrial relationship.
PN738
That the orders be withheld until at least 1 o'clock tomorrow. That would give the company time to frame an appropriate document and provide the unions with an opportunity to have a look at it. If it please the Commission.
PN739
THE COMMISSIONER: Thank you, Mr Beard. Ms Kastoun?
PN740
MS KASTOUN: Commissioner, the CEPU would support the submissions made by Mr Morrison and Mr Beard. Just in relation to our members specifically, as it was mentioned earlier, of the two members we have here, one is currently on leave so the company can't actually confirm whether our members are actually on strike. I just wanted to note that, Commissioner.
PN741
THE COMMISSIONER: Thank you. Mr Byrnes, did you wish to put anything in response?
PN742
MR BYRNES: Yes, I do, Commissioner. In terms of the matter raised as to specific orders, my understanding is that each of the unions
have been served with specific orders. The application contains the specific orders that are sought. Maybe I didn't serve - Mr
Morrison, correct me if I am mistaken - has one. Commissioner, if that is a concern, we don't - I can provide a copy to my
friend - - -
PN743
MR BEARD: Yes. I am just having a look at the service that Mr Morrison has been given. Apparently the document has been forwarded to the national office down in Melbourne and also to the Newcastle branch. Unfortunately, it hasn't come through to my desk, Commissioner. So I would appreciate - and I do accept that proper service has been performed by the company.
PN744
THE COMMISSIONER: But you personally haven't seen the document?
PN745
MR BEARD: That it has been forwarded to the national office in Melbourne, however, I would appreciate a copy of the document now.
PN746
THE COMMISSIONER: Do you want to have a look at the file copy at the moment, Mr Beard?
PN747
MR BEARD: I have had a quick look at Mr Morrison's copy. As I say, I wasn't aware that there was such a document. Thank you, Commissioner.
PN748
THE COMMISSIONER: Thank you. Yes, Mr Byrnes?
PN749
MR BYRNES: Thank you, Commissioner. Hopefully that addresses that concern. I wouldn't want that in any way being an impediment to the making of an immediate order. Mr Morrison spoke of the need to discuss or canvass the substantive issue, to have discussion about that. The company's position, both in evidence and I indicate it's on basic instructions, is very clear. It's willing to have discussions in respect of these matters. There's been nothing that the company has done at all levels which would indicate otherwise. We say the evidence bears that out, and they're my instructions from the bar table.
PN750
Mr Morrison puts them as being mutually-exclusive propositions, if there are section 127 orders made, that somehow there cannot be any discussions about the substantive issues. Indeed, we see them as going hand-in-hand. The company is more than willing to enter into discussions about these matters - and we simply understand they were reasonably - is reticent to do so in circumstances where effectively there's a gun being held to their head, where no work is - there's a stop work in flagrant breach of the certified agreement for 48 hours. That's sending the wrong sort of message about the way in which these sorts of discussions should proceed.
PN751
If the company is in any way neglecting its obligations under the certified agreement, there are mechanisms in that agreement to notify a dispute, and to bring the company before the Commission in the appropriate way. That is indeed the steps that should have been taken. I note the concern that has been expressed about Mr Roberts' alleged failure to provide names and addresses of employees. Mr Roberts gave evidence about that, and we say that that's credible evidence, that he was concerned about privacy issues and the like surrounding the supply of that information. Commissioner, I think without making detailed submissions, that area is a minefield. It's difficult for everybody.
PN752
I am sure everyone at the bar table has had some difficulty in respect of that particular issue. That's understandable for Mr Roberts, and he was quite candid about that, to have that concern about releasing the information. It seems that there's been a lot of talk from Mr Keen and perhaps a good intention, but that's not been supported by action to get the employees back.
PN753
THE COMMISSIONER: Isn't the argument, though Mr Byrnes, is that the action can't follow because Mr Keen can't contact the individuals? That's what I understood the difficulty? Because he doesn't have the details.
PN754
MR BYRNES: I would have thought - maybe my friend - - -
PN755
MR BEARD: Commissioner, I might just be able to shed some light on it. I understood the situation that the Newcastle branch of the AWU was prepared to cooperate with the company as much as possible in trying to contact appropriate people to explain the situation and get them back to work.
PN756
THE COMMISSIONER: To try and get them back?
PN757
MR BEARD: That was the - yes.
PN758
THE COMMISSIONER: Yes.
PN759
MR BEARD: As I say, the undertaking was given by Mr Kevin Maher as well as John Keen. Thank you.
PN760
THE COMMISSIONER: Yes. Sorry, Mr Byrnes?
PN761
MR BYRNES: Commissioner, I don't want to get into a debate or discussion about this in any great length, but I would have thought the union would have some records in that respect? I simply say that a negative inference shouldn't be drawn from Mr Roberts not releasing that information, in circumstances where he had a very real and legitimate concern about the propriety of releasing such information. So we'd say that it's not mutually exclusive at all, Commissioner, as Mr Morrison has put, that these orders can be made and we say having regard to the - and indeed, Ms Kennedy alerted the employees to the danger of it without then necessarily taking steps to prevent it or to doing matters which might have impeded it occurring.
PN762
But it is very clear that the conduct that's been engaged in is so flagrant and brazen that it warrants the making of the orders, but having said that, Commissioner, Mr Morrison's submissions are noted and it's not mutually exclusive, that there can be discussions about these matters. There is the meeting scheduled tomorrow morning which could be, indeed, a fresh start if you like, in respect of discussions surround these issues. If the section 127 orders were made, that would provide a fresh opportunity tomorrow morning for Mr Roberts to meet with the relevant officers and commence those discussions.
PN763
That would be the appropriate course, with the Commission sending a message to employees about what is appropriate and what is inappropriate industrial action. May it please you.
PN764
THE COMMISSIONER: Thank you. Mr Beard, can I just ask you, I don't know whether you actually have any instructions on this, but are you aware of whether Mr Keen intends to attend the meeting at 1 pm?
PN765
MR BEARD: He will want to be there.
PN766
THE COMMISSIONER: You'll make sure he is, will you?
PN767
MR BEARD: Yes. He will be.
PN768
THE COMMISSIONER: All right. Thank you. Sorry, I think you were going to make - - -
PN769
MR BEARD: I was just going to make comment in regard to the draft order, Commissioner. The only comment I have that it seeks to come into effect from midnight on an unspecified day and remain in force for six months. I am not quite sure, I presume that will be midnight tonight, is it? However, I think that needs to be more specific in regards to the actual operative date, and we believe, or from the AWU's point of view, we believe that the operative for six months is not necessary, for that amount of time. As I say, we believe it's more appropriate for an order to be issued if the industrial action continues after 1 o'clock tomorrow.
PN770
However, if you're not persuaded to see that course of conduct, it would be a matter of deciding of what is an appropriate amount of time for the orders to operate. In the circumstances, we would have thought the six months is obviously far too long. In fact, it may only be for one day, would be more appropriate, as it goes. But we don't have a crystal ball, we can't look into the future. Maybe it is more appropriate, as I say, we will see what happens tomorrow. If it please the Commission.
PN771
THE COMMISSIONER: Thank you. Mr Byrnes, was there anything you wanted to say, just on what Mr Beard has said?
PN772
MR BYRNES: Yes. Just briefly, Commissioner, on that point. We would want, in actual fact, the orders to come into effect, as I have mentioned before, as soon as practicable, and ideally for the 9 o'clock shift this evening which I am instructed we could notify employees and get them on deck by that time. As for the six months, I am instructed to press for six months, but I am not wedded to that and I can appreciate that the Commission might be minded to make the order for a shorter period than six months, but that would be what we would say would be a fair period having regard to the conduct that's been engaged in, in the circumstances. I can fully understand the Commission may not want to make an order of that duration.
PN773
MR MORRISON: Commissioner, just on a point which is not to do with the specifics of the order; I am concerned with workers being rung at this stage, thinking that they were on strike, knowing the drug and alcohol policy of the company, that they may - and that matter should be uppermost in the Commission's mind.
PN774
THE COMMISSIONER: Yes, Mr Morrison.
PN775
MR MORRISON: If they are required at work at 9 o'clock.
PN776
THE COMMISSIONER: Yes. I suspect there might be someone who might have - - -
PN777
MR BEARD: Still playing golf.
PN778
THE COMMISSIONER: Playing golf, or yes, something or other.
PN779
MR BEARD: Indoor golf.
PN780
THE COMMISSIONER: I am in a position to indicate what I am going to do now. I don't need to adjourn. I have considered what's been put and obviously taken into account the evidence and the submissions. Firstly, I am satisfied that I actually have jurisdiction to issue the orders that are sought, and none of these factors are seriously being disputed by the union parties, that there is industrial action currently happening at the site by the employees. The work is covered by a certified agreement and also the claim has been brought by obviously a person affected, being the employer. So I don't think any of those issues are in dispute.
PN781
The issue, though, of the discretion as to whether or not I make the order is more problematic. I am uncomfortable, shall I say, with the fact that there is such a recently certified agreement. It's only been in place for about two weeks. In fact, slightly less than two weeks, and yet there is already industrial action happening which is not permitted under that agreement. I think that perhaps in that regard, at least perhaps more can be done to explain to the employees exactly what their obligations are under that certified agreement, as far as taking any action of the sort that they are taking.
PN782
However, I also appreciate the fact that obviously there is a deep-felt unhappiness with the employees, with at least one employee, being Mr Dick, and also I accept the evidence of Mr Dick and Ms Kennedy as to the feelings of the other employees about the issue of the use of the subcontractors. Obviously the preferable way of dealing with that would have been to in fact lodge the 170LW notification before walking out the door yesterday, and that is what should happen in the future, if in fact any issue comes up that's likely to lead to - well, any dispute at all. If it can't be resolved between the parties, you lodge an application under 170LW in the Commission before taking any action at all, unless it relates to health and safety concerns.
PN783
However, bearing in mind all the issues that have been raised and what is proposed to happen tomorrow about meetings, I am not inclined to issue any orders at this stage because I have concerns about issuing orders generally in this particular circumstance, in view of the particular circumstances, and also I am concerned about having any orders come into effect in fact prior to about noon tomorrow anyway, with a view to trying to notify people. I have real concerns about whether realistically we could expect people to turn up to work in a fit and proper condition, having been properly notified of any order. So I am not intending to issue an order at the moment.
PN784
However, what I want to do, and I particularly want Ms Kennedy and Mr Dick, if you could please particularly take this on board, but also maybe if, Mr Beard, you could pass this on to Mr Keen, and Ms Kastoun, I don't know whether you're actually having any officials there, but to the extent that you might, by making a strong recommendation that at that meeting at 1 pm tomorrow that there be an immediate return to work following that report-back meeting. If there is no such return to work following that meeting, or at the end of the meeting - in other words, if the employees decide to take any further industrial action - then in fact I will give liberty to the company, or to Mr Byrnes, the notifier, to have the matter re-listed, and I should indicate that I most probably will issue orders.
PN785
So I want that to be made very clear and I want that to be passed onto the employees. There is another way of handling the issue that undoubtedly is strongly felt, but there's another way of dealing with it. There is going to be discussion tomorrow morning, as I apprehend, at 10.30 and I would like those discussions to in fact maybe put this particular issue at the top of the list. I mean, I am not saying you don't talk about those other things, but put this at the top of the list, and if a positive outcome doesn't come out of that particular meeting, then I would encourage the parties to in fact program further discussions about that issue and further discussions in the fairly immediate future.
PN786
What I will also do is I think in relation to the 170LW, I might actually - and perhaps I could just ask you for dates - but I would in fact like to list this now. In other words, indicate that this will be listed for hearing so that people are aware of the fact that if by any chance these discussions between the parties don't bear fruit, that in fact it's back in the Commission in a fairly quick timetable. Now, that can either be Friday or it can be Tuesday of next week. I am on a Full Bench all day tomorrow and won't be available, other than obviously if there is an urgent re-listed noted of this, I will have to list it late after the Full Bench.
PN787
So I don't know if there is a particular preference for Friday or Tuesday? Monday is a Public Holiday, so - - -
PN788
MR MORRISON: I am advised Tuesday, we are available.
PN789
THE COMMISSIONER: Right. You are probably a bit up in the air, Mr Beard, but if I listed it for - - -
PN790
MR BEARD: I think it would be prudent, Commissioner, to list it and it's a matter of the AWU having appropriate people here.
PN791
THE COMMISSIONER: Yes. Mr Byrnes, would the company be available
- yes, sorry.
PN792
MR BYRNES: Commissioner, I don't want to be difficult. I have instructions that my clients aren't available Tuesday and Wednesday, but we'd certainly be available Thursday.
PN793
THE COMMISSIONER: Well, the Full Bench that I am on is then back on Thursday and Friday, so I can't Thursday or Friday. It actually was supposed to be Tuesday, Wednesday, Thursday, Friday, but two days have fallen out. So it can be this Friday or Tuesday, Wednesday.
PN794
MR MORRISON: Commissioner, Ms Kennedy unfortunately will not be able to - Tuesday looks like the only day of their availability.
PN795
MR BYRNES: This Friday, Commissioner?
PN796
THE COMMISSIONER: This Friday? A possibility.
PN797
MR BYRNES: I am instructed that this Friday is suitable.
PN798
MR MORRISON: Ms Kennedy is in Melbourne on Friday at a conference.
PN799
THE COMMISSIONER: Maybe you could - I don't know.
PN800
MR BEARD: Would it be prudent to see what happens with the meeting tomorrow?
PN801
THE COMMISSIONER: Maybe see what happens tomorrow. If it then
becomes - - -
PN802
MR BEARD: More direction to the parties - - -
PN803
THE COMMISSIONER: Yes, because if things go well and progress is made, there may be less pressure. The only reason why I was hoping to have a date is I thought it might be useful for the union officials when they're reporting back, to be able to say, well, we're in the Commission on X day at X time. Perhaps, could it be put on the basis that I don't want any negative thing to be drawn from the fact it's not listed for a specific date? In other words, you could explain that it's in fact trying to get everyone in the one place at the one time. The following week is a real problem for me. The following week is virtually totally taken up.
PN804
MR MORRISON: I would think the suggestion that the Commission is prepared to be actively involved would be part of the recommendation, I think would be - I would suggest the unions would put that as a very good positive to the members and would see that that would be assisting in achieving a return to work. If we could just put that to the members.
PN805
THE COMMISSIONER: Yes. Well, as I say, if it could be explained that it's not from any unwillingness on the part of the company or in fact on the part of the Commission to have that, it's just difficulties with getting everyone in the one place at the one time. So, will I not list the 170LW at the moment?
PN806
MR MORRISON: I think that's appropriate.
PN807
THE COMMISSIONER: But if I could ask, Mr Morrison, in that regard if you could perhaps just keep my chambers informed as to if there is a need for that to be listed and we will then just have to find a date.
PN808
MR MORRISON: Certainly.
PN809
THE COMMISSIONER: In the meantime, Mr Byrnes, obviously I am hoping that in fact we don't have to hear from you tomorrow, but in the unfortunate event that there isn't a return to work, as I said, you have liberty to apply to have the matter re-listed at short notice. Just bear in mind I am only the third member of a Full Bench tomorrow, so my time will be a little constrained, but it could be listed after the Full Bench rises, no doubt. But I hope that that won't necessarily be the case. Will it, Mr Dick? No. Hopefully not.
PN810
MR DICK: Hopefully not.
PN811
THE COMMISSIONER: All right. This matter is adjourned generally as is the 170LW. Thank you.
<ADJOURNED INDEFINITELY [7.20PM]
LIST OF WITNESSES, EXHIBITS AND MFIs
PAUL BOROBOKAS, AFFIRMED PN52
EXAMINATION-IN-CHIEF BY MR BYRNES PN52
CROSS-EXAMINATION BY MR MORRISON PN91
RE-EXAMINATION BY MR BYRNES PN142
THE WITNESS WITHDREW PN156
MALCOLM REX ROBERTS, AFFIRMED PN156
EXAMINATION-IN-CHIEF BY MR BYRNES PN156
EXHIBIT #SKILLED1 ANNEXURE H SKILLED ENGINEERING POT RECONSTRUCTION AGREEMENT PN177
EXHIBIT #SKILLED2 EMAIL FROM N DAY TO M ROBERTS PN211
CROSS-EXAMINATION BY MR MORRISON PN243
CROSS-EXAMINATION BY MR BEARD PN342
RE-EXAMINATION BY MR BYRNES PN364
EXHIBIT #SKILLED3 FACSIMILE DATED 11/03/2005 PN392
EXHIBIT #SKILLED4 FACSIMILE DATED 18/04/2005 PN392
THE WITNESS WITHDREW PN393
ROBERT DAVID DICK, SWORN PN395
EXAMINATION-IN-CHIEF BY MR MORRISON PN395
CROSS-EXAMINATION BY MS KASTOUN PN466
CROSS-EXAMINATION BY MR BYRNES PN470
RE-EXAMINATION BY MR MORRISON PN543
THE WITNESS WITHDREW PN559
MELISSA GAYE KENNEDY, SWORN PN560
EXAMINATION-IN-CHIEF BY MR MORRISON PN560
CROSS-EXAMINATION BY MR BYRNES PN598
RE-EXAMINATION BY MR MORRISON PN692
THE WITNESS WITHDREW PN696
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