C2005/1081, Transcript of Proceedings [2005] AIRCTrans 1228 (31 May 2005)

1800 534 258

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 11646-1

DEPUTY PRESIDENT MCCARTHY

C2005/1081 C2005/1082 C2005/1083

UNITED KG PTY LTD
AND
AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION-WESTERN AUSTRALIAN BRANCH
s.127(2) - Appln to stop or prevent industrial action
(C2005/1081)

PERTH

2.05PM, FRIDAY, 20 MAY 2005

PN1

THE DEPUTY PRESIDENT: These are applications made pursuant to section 127(2) of the Workplace Relations Act. They all appear to deal with the same or similar issues and I have joined them for the purposes of these proceedings. Can I have appearances, please.

PN2

MR G BULL: I seek to appear on behalf of the Abigroup Asset Services.

PN3

MR M BORLASE: I appear on behalf of G & M Construction Pty Ltd trading as Western Construction who in the remaining proceedings I will refer to as Western Construction, for United KG Pty Ltd and for Total Corrosion Control.

PN4

MR M GOLESWORTHY: I appear on behalf of the AFMEPKIU and I also have with me MR S McCARTNEY, also appearing on behalf of the AFMEPKIU.

PN5

THE DEPUTY PRESIDENT: Thank you, Mr Golesworthy. Leave is granted, Mr Bull to the extent that it's necessary. Yes, who is - - -

PN6

MR BULL: Yes, thank you, your Honour. I think I might just head off even though we filed an application subsequent to the employees that my friend represents. We understand that this current industrial action has been precipitated by my client, Abigroup Asset Services Pty Ltd and just by way of background, your Honour.

PN7

THE DEPUTY PRESIDENT: Precipitated by your client?

PN8

MR BULL: Well, we're advised that the reason that the employees are on strike is because of action taken Abigroup Asset Services Company, but we stand to be corrected if that's not the case.

PN9

THE DEPUTY PRESIDENT: I see.

PN10

MR BULL: That's what we're advised. Your Honour, obviously this is an application under section 127 of the Act and we are seeking an order to stop the industrial action. The employees, or employees who are eligible to be members of the AMWU had a meeting yesterday at 6.30 am and that meeting was a stop work meeting that was addressed by two organisers from the AMWU and that as a result of that stop work meeting we were advised that industrial action had commenced. The employees wouldn't return to work that day, or today, or tomorrow and they would have another meeting on Monday morning. So at this point in time we don't know how long the duration of the industrial action is.

PN11

We say prima facie it's certainly not protected industrial action. The Act requires certain procedures to be followed and certain actions to be taken by a union delegate, together with members on industrial action. None of that has occurred, your Honour. We say that we are able to come to this Commission and ask for the 127 order because the industrial action relates to the definition of section 127(1)(b), that the negotiation or proposed negotiation of an agreement under Division 2 of Part VIB of this Act.

PN12

Now, it is a fact that my client has been in negotiations with this union for around about six months in respect to its workforce on the Alcoa Kwinana site and those negotiations have centred around reaching an agreement simply to cover those employees. We say and it hasn't previously been in dispute that those employees were engaging in maintenance service type work and for many years the work of contractors on that site has always been covered by what we know as maintenance agreements as opposed to construction agreements.

PN13

Now, as I say, my client has had negotiations with the union and there's been correspondence between Abigroup Asset Services Pty Ltd and the union in respect to an agreement in respect to having that registered under this Act, and as I said earlier, that has been going for some six months. Now, there has been a prepared document to reflect the section 170LK agreement to be certified in this Commission but more recently, your Honour, we're advised by the union that no longer wanted to have an agreement that reflected maintenance rates, maintenance conditions, that they now decided at the last minute that they believe that an agreement covering my client should incorporated construction rates.

PN14

You would be aware, your Honour, construction rates are significantly higher than maintenance rates. They contain a 36 hour week, I think there's about a $10 per hour increase from the maintenance rate so that's an excessive increase in terms of a comparison with maintenance conditions and furthermore, it's not construction work and it certainly would not be reimbursed by my client, that is Alcoa. It's nobody understanding as far as we're concerned that the work that employees of my client are doing is construction work. It's simply maintenance and minor project work and it is with some concern that we negotiated in good faith for some considerable time to reach what we thought was going to be an agreement in respect to an 170LJ agreement and then to be told that no, the rates in that agreement aren't going to be satisfactory, we need an agreement that contains construction rates.

PN15

Whether this is an attempt by the union to start to flow construction rates in the ..... we don't know. We simply know that that's a claim being pressed against us. Now, as a result of that, your Honour, we obviously weren't going to get very far because we aren't in a position to pay construction rates on that site. As I said, even if we wanted to it wouldn't be reimbursed by the client because it's not viewed by anybody there, who pays the bills at least, that it is construction work. So those negotiations then came to a stalemate because as I say, there was a request for these construction rates to be reflected in a 170LJ agreement.

PN16

Now, as a result of that my client said, well, we need an agreement to cover its workforce on that site and they will say they have been there for about six months, we have tried to reach an agreement. So on Wednesday, because of the stalemate in the negotiations with the union, a 170LK agreement - I think I mentioned LK before and I should have said LJ. An LK agreement was given to the workforce their consideration. Now, that action seems to be the action that's caused this current industrial action, or at least as far as we're concerned, as I say, the union my have a different view of things. And as a result of that document being presented to the workforce to say look, we haven't reached agreement on an LJ with the union therefore we're going to reflect what we thought we had agreed in our own 170LJ agreement, there is, think about it and come back and let's talk about it and so forth, and complying with the requirements under the Act that one must meet prior to registration.

PN17

So that's what happened and there was immediately a stop work meeting the next day. As I said, the union officials from the union turned up on site and we were advised that the 170LK for the union as far as they're concerned was simply not acceptable and just wasn't on their agenda, which one can understand. However, as a result of that, as I said, the workforce met, were asked to meet by the union and took industrial action, as I say. But we understand the meeting they had on Monday morning whether to return to work or not was another matter, that's why we're seeking such an order.

PN18

Now, the reason we asked for a 127 order is simply this, that is that it is not protected industrial. They have not notified us of a bargaining period. They haven't even met the requirements of taking protected industrial action in respect to negotiations of an agreement. It appears to us on the surface at least, your Honour, that this is prima facie a breach of section 170NC of the Act which makes it unlawful for anybody to take industrial action to coerce any person, employee, to sign an agreement under this Act if it's not protected industrial action and that's what it appears to us on the surface and we have to consider our rights in respect to that at a later date.

PN19

But on the basis that we say the action is unlawful, your Honour, we have attempted to reach in good faith an agreement with the union over the last six months and as I said before, what we thought we had agreed to an agreement turned out not to be an agreement because we have got this new ambit claim or this new change in tactics by the union to now say, well, we want you to be paying construction rates. That's a new one on us. We are not doing anything different than what we did when we first started. We're still doing minor project work and maintenance work and it's considered by anybody on that site to be construction work and we're not in a position to pay such rates.

PN20

We don't in this application make an application against the employees because personally at this stage we don't think that the employees are orchestrating the industrial action, that as far as we are concerned it is action that is being encouraged and coerced by the union who have made the application. So the order we seek, your Honour, is against the union, its employees and its agents and that's why the order is in the form that it is in the attachment to the application.

PN21

THE DEPUTY PRESIDENT: How many employees are employed by Abigroup at this site?

PN22

MR BULL: I will just take instructions on that, your Honour. About 30 or 35, your Honour.

PN23

THE DEPUTY PRESIDENT: And what, if any, instruments regulates the employment of these employees at the moment?

PN24

MR BULL: I understand that there are no industrial instruments that regulates these employees other than the State Metal Trades Award, but I don't believe that they're respondent to any federal instrument, which is why we're anxious together with the union to reach an agreement.

PN25

MR GOLESWORTHY: Sir, if I might, I'm not 100 per cent whether due to my inexperience in these type of matters and my apologies for that. It was certainly something that we were going to raise whether Abigroup should actually be here seeing there is no instrument in place that relates to the Federal Act and whether it actually should be under the State Act, sir.

PN26

THE DEPUTY PRESIDENT: Well, I will come to that in a moment with you. Yes, I will come to that in a moment with you, Mr Golesworthy. The first thing that must be established in proceedings of this nature is there is the jurisdiction that exists for the Commission to do anything. That's something that Mr Bull will have to establish and something I was exploring with him. So, Mr Bull, you're not asserting that there is jurisdiction by operation of 127(1)(a) or 127(1)(c), are you?

PN27

MR BULL: No.

PN28

THE DEPUTY PRESIDENT: And the context of your assertions under 127(1)(b) are what?

PN29

MR BULL: We have been negotiating in good faith with the union for a section 170LJ agreement for the last six months, so we certainly are in negotiation for a proposed agreement or agreement under division 2 of part VIB of this Act.

PN30

THE DEPUTY PRESIDENT: You can establish - - -

PN31

MR BULL: We can establish that by evidence. We have got the general manager here of the company. I think we have got documentary evidence of correspondence between ourselves and the union in respect of this agreement. We have a draft agreement. But there's no misunderstanding about the fact that we have been in negotiations for such an agreement.

PN32

THE DEPUTY PRESIDENT: Well, you also mentioned that the company had notified employees of an intention to make an agreement pursuant to section 170LK.

PN33

MR BULL: Yes, we have provided them with a draft document, yes, or a document for their consideration.

PN34

THE DEPUTY PRESIDENT: So if there's an assertion that there's been no negotiations or proposals for an agreement to be made pursuant to section 170LJ of the division 2, are you asserting that even if it's not established that there are proposals for a 170LJ agreement there is nevertheless proposals for a section 170LK agreement?

PN35

MR BULL: Yes, certainly, but we don't think we need to get to that stage,
your Honour. We think it's beyond doubt that there's negotiations for a 170LJ agreement

PN36

THE DEPUTY PRESIDENT: But if it's asserted that there isn't notwithstanding that, there is a proposed section 170LK agreement as well as or either?

PN37

MR BULL: Yes. We're still happy to have a section 170LJ agreement with the union. We are happy to go down that path but we're not happy to pay construction rates or reflect that agreement by way of construction rates and that's simply all we have been asked to do by the union.

PN38

THE DEPUTY PRESIDENT: Well, it's not for me to get involved in what the content of those agreements are, Mr Bull, merely that there's negotiations or proposed negotiations for an agreement and that's what you can establish you say?

PN39

MR BULL: Yes. I mean, as you say, if there is some objection to the fact that there's no negotiations, well, as I say, the general manager is here and can by way of evidence indicate that he has had discussions and that there is an ongoing debate about simply what's reflected in the agreement, not the fact that there is going to be an agreement.

PN40

THE DEPUTY PRESIDENT: Yes.

PN41

MR BULL: As your Honour pleases.

PN42

THE DEPUTY PRESIDENT: Yes, thank you. Mr Borlase?

PN43

MR BOLASE: Thank you, your Honour. Your Honour, the situation of those that I represent is slightly different in that, and you will probably have seen that from the grounds of the application that has been made, in that the three companies that I represent have in place in term certified agreements and I would seek to tender copies of those to the Commission and I have already provided a copy to friend at the bar table. Your Honour, what I have provided to you there is copies of the Total Corrosion Control Alcoa Local Service Contracts and Associated Projects Certified Agreement 2004-2007, a copy of the United KG Pty Ltd Alcoa Local Service Contracts and Associated Projects Certified Agreement 2003, and a copy of the Western Construction Alcoa Local Services and Minor Projects Agreement 2003-2006. As I said, I would seek to tender those documents.

PN44

THE DEPUTY PRESIDENT: Well, I don't need to mark them, Mr Bolase.

PN45

MR BOLASE: Certainly. Sir, this is an application for orders pursuant to section 127 and we put these applications to you on the basis that industrial action is happening and we put it to you that it's on the basis of two things, one, section 127(1)(b) being the negotiation proposed agreement under division 2 relating to the negotiations that have been indicated to you that have taken place between Abigroup and the AMWU and/or Abigroup and it's employees. As you will come to appreciate, the reasons that have been given to those that I represent for the strike action is slightly varied so we were of the understanding that it was more to do with industrial action reflecting concerns by the union about the approaches Abigroup had made with respect to negotiating a section 170LK agreement.

PN46

The other basis under 127 that pursue this is that of 127(1)(c) in that it relates to work that is regulated by certified agreements which I have put before you. Sir, we are in a position to be able to establish by evidence that the industrial action is occurring by the union and employees of each of the applicant companies whose employment is covered by these respective agreements. This action commenced with the attendance at a stop work meeting that was called by Mr Mark Golesworthy and Steve McCartney who are both organisers of the respondent unions. The stop work meeting commenced at approximately 10 am, Thursday, 19 May 2005 which was yesterday.

PN47

Following that meeting industrial action commenced in the form of strike action and the applicant companies have been advised that there will be a further meeting to be held at 10 am, Monday, 23 May 2005. There has been no guarantees of a return to work. One of the issues that we find significant there is that it is several hours after the meeting that's been indicated to you by my friend Mr Bull, that the Abigroup people will be having. I think that their meeting is scheduled to occur at approximately six or 6.30 am on Monday, so I suspect very strongly that the likelihood of the employees of the companies that I represent returning to work hinges quite strongly on whatever occurs at the earlier meeting of Abigroup, and I will explain to you why we think as I go on.

PN48

There has been a variety of reasons that have been provided for the stop work meeting held yesterday to those that I represent which include Mr Golesworthy indicating to the supervisory management of United KG that it related to terms and conditions surrounding the proposed ..... project at the Alcoa Kwinana site, employees of United KG subsequently informing but before the meeting, informing management of UKG that it related to concerns that AWAs were being offered by Abigroup. Employees of Western Construction indicating to their management that it related to non contractual work that has been granted Abigroup and by that we understand work that hadn't been tendered for by Abigroup being granted by Alcoa.

PN49

Subsequent to that, discussions between Western Constructions HR Manager,
Mr Gray Zwanenburg and their shop steward in which Mr Zwanenburg was informed by the shop steward that it related to concerns that the union had over Abigroup pursuing a section 170LK agreement with its employees and then information being provided to TCC by Mr Golesworthy that it related to concerns of the union relating to non union type agreements being negotiated, and from that and certainly from what we have heard now from Mr Bull on behalf of Abigroup we would certainly now take that to mean concerns of the union relating to Abigroup pursuing section 170LK agreements.

PN50

So all of the information effectively that has come back to the company that I represent as to the reasons for the strike are issues which do not relate to them as companies to issues that they have any control over whatsoever. Now, if need be, it will also be evidence of the applicant companies that there was a meeting of the AMWU and employees of Abigroup at an area known as the Mud Lakes at Kwinana and I'm aware that you have dealt with a previous matter in respect of that, your Honour. Earlier in the day on the 19th and then subsequent to that meeting, the meeting was called for these other companies to attend a meeting on the 19th and we are of the belief and understanding that at the 10 o'clock meeting on the 19th employee representatives of Abigroup employees attended that meeting and then it was subsequent to that that the industrial action took place and the communications to the companies along the lines that the reasons for the industrial action was concerns over the non union agreements that were being proposed by Abigroup.

PN51

That is further supported by the differential in time that certainly that the whole reason for the industrial action being taken by the employees of the companies that I represent are relating to issues concerning employees of Abigroup and/or concerns that the union has with the actions of Abigroup by the fact that I have indicated of a meeting being planned on Monday, the 23rd by Abigroup employees at six or 6.30 in the morning and then the meeting of our employees, if you like, being subsequent to that, and we believe, as I said, that the outcome of any return to work or further action will depend on what occurs with the Abigroup employees.

PN52

Now, if any of that is effectively contested then we're in a position to provide evidence to that, but certainly there's no objection raised to this particular point. In terms of the powers of the Commission to issue an order, it's clearly a discretionary power that you have. In the circumstances that are before you today we would say that there are very persuasive reasons why you should exercise that discretion and issue orders that we seek. And in terms of the information that is before you there's just a couple of housekeeping issues that I should deal with as well, your Honour. The first one is in relation to TCC. The number of employees that are on strike that are covered by this agreement I'm instructed is in fact I believe approximately 34 employees, not the 25 employees that I indicated.

PN53

In terms of United KG, their application is slightly different in terms of the order that is being sought there, in that the order that is being sought on behalf of United KG is against the union employees of the company who are members of the union and a list of schedule of employees. Now, I must advise the Commission that we have not been successful in being able to serve a notice of the application and a notice of a hearing on all of those specifically named employees and in the first instance what we would seek from the Commission is that requirement for service to be waived, given that those employees we say attended that meeting and are as much influenced by the actions of the union as if they were members of the union.

PN54

Secondly, if that is not granted then we would obviously seek to adjourn proceedings in respect to those particular individuals who we have not been able to serve and they will be court up, if they are in fact members of the union because we don't specifically, apart from two employees who are members of the union, who aren't. If they are members of the union they will be caught by the general order as they're receiving it anyway. If it becomes apparent to us over a period of time that they're not members of the union then we would seek to be able to bring further proceedings against those people as individuals a little bit further down the track. But I can provide your Honour with a list of those people who have been served for purposes of clarity on that point if you don't grant the application to us to waive the requirements - - -

PN55

THE DEPUTY PRESIDENT: So there's employees have been served, are there?

PN56

MR BOLASE: There have been some that have been served of United KG but not all of them. We managed to serve approximately four and there are two employees that we know are union members by way of union deduction of their fees, and there is approximately I think 11 employees of United KG on site.

PN57

THE DEPUTY PRESIDENT: The order sort for TCC is against the union, is it?

PN58

MR BOLASE: Yes, the orders sought on behalf of TCC and Western Construction are against the union and employees who are members of the union. We believe that approximately 95 per cent, if not higher, of the employees are actually members of the union and on the basis of - - -

PN59

THE DEPUTY PRESIDENT: How many employees of Western Construction are there?

PN60

MR BOLASE: Western Construction have approximately 73 I believe, 72 or 73, somewhere around there.

PN61

THE DEPUTY PRESIDENT: And Western Construction and Total Corrosion Control, have any of the employees been served or sought to be served?

PN62

MR BOLASE: No, they haven't. We're seeking an order against the union and employees - - -

PN63

THE DEPUTY PRESIDENT: I understand that.

PN64

MR BOLASE: And we do that on the basis of both Pryor's case and Tennix case which has quite clearly established the principle that service of an application on the union as the representative body of those people is sufficient for the purpose of bringing the matter to their attention and addressing the - - -

PN65

THE DEPUTY PRESIDENT: Well, in those cases it was found to be sufficient, yes.

PN66

MR BOLASE: Yes. And we would seek to rely on that, obviously, in terms of any procedural fairness issues relating to those union members.

PN67

THE DEPUTY PRESIDENT: Yes, thanks, Mr Bolase. Mr Golesworthy, do you have anything to say at this stage?

PN68

MR GOLESWORTHY: I suppose with regards to with Abigroup, sir, there's certainly been negotiations that have been taking place probably over the last six months. As far as we're concerned there has been - and I'm talking about the Mud Lakes area itself. There's certainly been no discussion as far as we're concerned that indicates that it would be a 170LJ agreement or any type of agreement and what jurisdiction that would agreement would be in. If anything, the only thing that would indicate the jurisdiction may be I suppose a draft copy which in effect we have plagiarised from a number of agreements at Alcoa, which we do sometimes, and that's only on the basis that most of the Alcoa agreements are very, very similar.

PN69

We have used that as a document to progress an agreement with Abigroup, so there may be some reference in that document. But certainly the agreement we have been on Abigroup at this point in time which Mr Bull has referred to which is a construction agreement, it has only been a recent - or not recent. It's certainly a recent draft, but we have been talking to the company on that for the past, since about March. Now, I'm not sure if you're aware, sir, that Abi has recently acquired Simon Engineering, so there has been I suppose a bit of upheaval within the company that's stalled negotiations at some point in time the recent past. So we have had a change of management to deal with from the Simon Group of people to the Abigroup of people.

PN70

So as far as we're concerned they're in the wrong jurisdiction, sir, and they should be in the state jurisdiction. They have already admitted that there is no agreement in place.

PN71

THE DEPUTY PRESIDENT: No, there's no agreement certified either as a result of transmission of business from Simon Engineering to Abigroup or in Abigroup's own right that is certified in this jurisdiction.

PN72

MR GOLESWORTHY: Not that I'm aware of, sir.

PN73

THE DEPUTY PRESIDENT: There have been discussions over an agreement but those discussions have not identified what instrument would be the result of any agreement that has been reached. Is that accurate?

PN74

MR GOLESWORTHY: Yes, that is, sir, and just to clarify that further, there's actually two agreements that we're talking about within the Abigroup. There's a refinery agreement which is in effect a maintenance agreement which is similar to the agreements that Mr Bull has presented to you and which would cover the maintenance work, and the other agreement which we believe would apply at the Mud Lakes which is a construction agreement is based on the premise that a relatively large - or some work that's going ahead that doesn't comply, as far as we're concerned with maintenance and we would actually argue that it's construction.

PN75

So we're actually trying to get two agreements up as such, the maintenance type agreement that's been negotiating for probably six months but the construction agreement has only been negotiating with Abi since Abi has actually taken over some probably eight weeks ago.

PN76

THE DEPUTY PRESIDENT: Are you contesting that there is industrial action being taken by employees of Abigroup who are Mud Lakes, is it?

PN77

MR GOLESWORTHY: Yes, sir. I don't think there is any - there is no reason to contest that there is actually industrial action taking place. I suppose we contest the reasons why - - -

PN78

THE DEPUTY PRESIDENT: Yes, I understand that.

PN79

MR GOLESWORTHY: But there is action taking place.

PN80

THE DEPUTY PRESIDENT: I understand that. Are you contesting that there is any industrial action taking place with the employees of United KG or Western Construction or Total Corrosion Control?

PN81

MR GOLESWORTHY: No, I don't think we're actually contesting that either, sir, but same again, we would certainly contest the reasons why. We would also contest the assumption that that industrial action is to continue come Monday. There's certainly been no indication given to the companies that that will actually be the case and in fact if we had the ability to sit down with the Abigroup in the meantime, which was the main reason for a report back meeting on the Monday, to report back where we're at with various concerns that were raised at that meeting that took place yesterday, sir. But there's certainly no indication from us that there is going to be a continuation of industrial action come Monday, sir.

PN82

THE DEPUTY PRESIDENT: I think I heard Mr Bull say there's a meeting planned between the union and employees of the Abigroup at 8 am on Monday, did I hear that - or 6 am on Monday?

PN83

MR GOLESWORTHY: 6.30 which is the normal start time.

PN84

THE DEPUTY PRESIDENT: 6.30. So around 6.30. And that's just with the Abigroup employees?

PN85

MR GOLESWORTHY: Yes, gave a commitment that we would be there at 6.30 in the morning to address the employees.

PN86

THE DEPUTY PRESIDENT: And there's a meeting with employees of the other companies at 10 o'clock, is that accurate?

PN87

MR GOLESWORTHY: Yes, that is accurate, sir. And the only reason for that was because of the start time of the various - of both of those meetings. One was started at 6.30 and I mean the logic was that we could back at 6.30 and the other one started at 10 and the logic was we would come back at 10, and they're two separate issues. Both of those meetings were two separate issues.

PN88

THE DEPUTY PRESIDENT: Mr Golesworthy, do you have anything to say in respect to Mr Bull's assertion that the Abigroup has notified employees of the Abigroup of its intention to make an agreement pursuant to section 170LK?

PN89

MR GOLESWORTHY: They have certainly done that, sir. Approximately two weeks ago we met with the members. We presented a construction type agreement to them on the basis that we believe it's construction. It was endorsed by the members at Abigroup at that time. We met with the company and presented that to them as a basis of an agreement. They had indicated to us at that point that they were willing to present that to Alcoa and then get back to us before the end of the week. I think that happened on a Wednesday, sir, approximately two weeks ago. They failed to get back to us at that point. We contacted the company by phone, or myself contacted the company by phone, whereas they indicated to us that they were required to put a proposal in writing to Alcoa and Alcoa would respond to that proposal.

PN90

They still didn't get back to us, sir, and we learnt the day before yesterday that they had presented the workforce with a 170LK agreement based on the maintenance agreement and not on the construction agreement itself, which I suppose gave impetus to the meeting that was had at 6.30 in the morning where concerns arose from the members because they were somewhat confused that they had endorsed an agreement with us to put to the company and then we're presented with a totally different agreement that appeared to be a maintenance agreement and didn't take into consideration the concerns with regards to construction, sir.

PN91

So therein lied the initial, I suppose, industrial action with Abigroup. I mean the one at Alcoa that Mr Borlase is referring to is I suppose a separate issue altogether.

PN92

THE DEPUTY PRESIDENT: Are you not contesting that the Abigroup has taken steps that are clear are steps in relation to the negotiation or proposed negotiation of a section 170LK agreement?

PN93

MR GOLESWORTHY: I think we contest that we've had any discussion on the jurisdiction of that agreement, sir, whether it be a state agreement or a federal agreement.

PN94

THE DEPUTY PRESIDENT: No, that's not what I was asking you. I was asking you whether you're contesting that the Abigroup have taken steps that are consistent with the negotiation or proposed negotiation of an agreement pursuant to section 170LK of the Act. It might be that you disagree with those steps or that you don't think an agreement will eventuate, but are you contesting that they have taken those steps?

PN95

MR GOLESWORTHY: I think we certainly wouldn't contest that they have taken a step, sir, and that's by presenting the workforce with an agreement that happens to have 170LK on the top of it.

PN96

THE DEPUTY PRESIDENT: I see. Is there anything further you wish to add at the moment, or comment on, or suggest?

PN97

MR GOLESWORTHY: My suggestion would be, sir, I suppose that I think we would be better served maybe going into conference and breaking into conference and actually addressing this by way of conference and we may actually be able to resolve this without resorting to orders. The history of the workforce down there is that they don't have a history of industrial action. We will be meeting with them on Monday, sir, and it's not the intention or it hasn't been the intention of the union to continue any further industrial action past Monday's meeting. So we may be better served going into conference, sir, and see if we can actually resolve the issues.

PN98

THE DEPUTY PRESIDENT: Thanks, Mr Golesworthy. Mr Bull or Mr Borlase, do you have any - - -

PN99

MR BULL: Yes, your Honour, just a couple of things. I take on board my friend's proposal of breaking into conference, but we may or may not ..... your direction, your Honour, but can I say - - -

PN100

THE DEPUTY PRESIDENT: Well, do you have a view on that?

PN101

MR BULL: Well, at this point in time, if the conference is to centre around as to whether we pay construction rates we will get nowhere.

PN102

THE DEPUTY PRESIDENT: Well, the matter that is before me, Mr Bull, is an application with respect to industrial action.

PN103

MR BULL: Yes.

PN104

THE DEPUTY PRESIDENT: Not the underlying reasons of that industrial action.

PN105

MR BULL: Well, why my friend has said that - he did say in his submissions there that there wasn't any intention to take industrial action any further than Monday, he did say go on to say, well, it depend on the negotiations and discussion with the Abigroup. Now, as I say, if he thinks that we're going to be paying construction rates come Monday then that won't resolve his difficulty, that's why I say in respect to that, so we have the concern. But apart from that we're more than happy to talk to the union and we always have been, but there is that one serious question that we just can't answer to the favour of the union.

PN106

THE DEPUTY PRESIDENT: Yes.

PN107

MR BULL: Secondly, we say that it is somewhat cynical and mischievous to say, well, yes, we have been negotiating an agreement for the last six months but we don't really know what jurisdiction it's going to go in. That's just a nonsense argument.

PN108

THE DEPUTY PRESIDENT: It's not a new one.

PN109

MR BULL: Not a new one. We've had certainly stronger arguments going the other way, your Honour, as you may well recall in other matters. One only has to look at the proposed agreement that's gone to and from the union from time to time which has highlighted certain areas of disagreement and on no occasion has the area of the scope of the agreement ever been questioned. And just by way of record, Your Honour, the area and scope says this:

PN110

The agreement shall operate from the date it is registered in the Australian Industrial Relations Commission.

PN111

I mean when was the last time this union ever registered an agreement with the State Commission? It's just a nonsense argument. There's an irresistible inference without any evidence to say that this is simply a nonsense argument, it is an agreement that wasn't registered in the federal jurisdiction. The agreement is riddled with references to the Australian Industrial Relations Commission. If there is any unclearness or ambiguity about what jurisdiction it was those questions would have been resolved a long time ago.

PN112

My friend wisely refers to the fact that the agreement is between the federal union, which is a most critical point. They don't have any ability to reach through a state agreement, so I just say that argument without any evidence just has no legs. So in respect to that, your Honour, I say you certainly have jurisdiction and the fact that there has been a proposed negotiation for a federal agreement and on the basis that it is not protected action prima facie we would say even though it's a discretionary exercise - - -

PN113

THE DEPUTY PRESIDENT: In any event, Mr Bull, you have said that you have taken steps to negotiate or an agreement pursuant to section 170LK.

PN114

MR BULL: We haven't and that doesn't seem to be imposed in fact by the union here today, no. That's correct, your Honour.

PN115

THE DEPUTY PRESIDENT: So what has taken place with respect to the proposed section 170LK, what steps have been taken?

PN116

MR BULL: An agreement has been drafted to reflect the previous what we understood the position between the union and ourselves to reflect in the 170LK agreement with some improvements and for the benefit of the employees. That has been given to the workforce for their consideration and perusal and - - -

PN117

THE DEPUTY PRESIDENT: So has there been a notice provided?

PN118

MR BULL: I will just get instructions, your Honour. Yes, there's been a notice provided, your Honour.

PN119

THE DEPUTY PRESIDENT: Have you got a copy of that notice?

PN120

MR BULL: No, I don't.

PN121

THE DEPUTY PRESIDENT: Does the notice make it quite explicit that there's an intention to make an agreement?

PN122

MR BULL: I understand it meets all the necessary requirements under the Act. It has been prepared by people who are familiar with the Act, not myself. I'm not that familiar. But someone who is familiar with the Act and has attempted to comply with all the requirements under the Act.

PN123

THE DEPUTY PRESIDENT: That's what you're going to lead evidence on, is it?

PN124

MR BULL: I wasn't going to lead evidence on it because I was simply relying on the fact that - I can lead evidence on it but I don't know whether we have that document in court today. We don't. We can get hold of it. But I was simply relying on the fact that we were for all intents and purposes negotiating a federal document prior to this new claim in any event, but we can certainly give evidence if need be. But I don't think that - that's not disputed, as I understand at least, by the union that we have a 170LK agreement on the table.

PN125

THE DEPUTY PRESIDENT: I'm not sure that's so clear as you're assuming,
Mr Bull.

PN126

MR BULL: Sorry, your Honour, clear from the union's opposition or - - -

PN127

THE DEPUTY PRESIDENT: I'm not so clear that the union is conceding that there has been steps taken that are sufficient to indicate that it is a proposal to negotiate a section 170LK.

PN128

MR BULL: Well, we're happy to call evidence if that's necessary to satisfy yourself.

PN129

THE DEPUTY PRESIDENT: Yes. Mr Borlase, do you have any reaction to what Mr Golesworthy said?

PN130

MR BOLASE: Yes, your Honour. In terms of the issue relating to a conference, I don't see how that would be of any benefit to those whom I represent. We also have concerns that although Mr Golesworthy has said he contests the reasons that we put forward for the employees of those that I represent being out of struck, he has been very coy about not actually saying what those reasons actually are. So if the reason - - -

PN131

THE DEPUTY PRESIDENT: Well, that would hardly surprise you, would it?

PN132

MR BOLASE: No, I have seen that particular pattern take place before by - - -

PN133

THE DEPUTY PRESIDENT: I'm not suggesting it's a pattern but it shouldn't surprise you.

PN134

MR BOLASE: No. So from that perspective our position was very, very strongly that there is very good reasons for the Commission to issue 127 orders for the applicants that I represent and included in that because of the communications that have taken place to those that I represent that the action is prima facie a breach of section 170NC in that the action appears to be directed to try and stop somebody - - -

PN135

THE DEPUTY PRESIDENT: Well, it may or may not be. It certainly hasn't been conceded and I'm sure it will be contested and probably vigorously. But what is conceded is that with respect to your applications that it's not contested that there is any jurisdictional impediment to an order issuing.

PN136

MR BOLASE: No, your Honour.

PN137

THE DEPUTY PRESIDENT: With respect to the unions at least.

PN138

MR BOLASE: Yes. And there's been nothing to put to you either, your Honour, in terms of why it shouldn't apply to employees of the company who are members of the union either.

PN139

THE DEPUTY PRESIDENT: Well, it wasn't addressed.

PN140

MR BOLASE: Well, in terms of the appearances that were put forward there is nothing that was put to display representation of those people - - -

PN141

THE DEPUTY PRESIDENT: Well, I understand that. I might raise that with the union at a later point. There might be issues there.

PN142

MR BOLASE: Sir, in terms of the other merits in terms of an order issuing, there is work that is planned for tomorrow by all three companies that I represent and also the usual commencement time is, I believe, seven or 7.30, 7 o'clock for the employees of those that I represent for Monday. So it means potentially six hours of Saturday work that had been planned and scheduled. It's part of ongoing maintenance work by those companies being lost. There is work which is conducted by Western Construction seven days a work, so work that would have been getting performed on Sunday will not get performed and even with the 10 o'clock taking, optimistically, a half an hour and then people taking another half hour, effectively a half a day of Monday being lost by the industrial action if people are not required to return to work tomorrow morning in the terms that we seek.

PN143

So from that perspective we say that there is good reason why orders should issue in the terms of those that I represent and if there are any further merit issues that need to be put forward that are challenged by the union, we are quite prepared to put witnesses in the box to support our reasons. If it please the Commission.

PN144

THE DEPUTY PRESIDENT: Yes. I will adjourn and go off record soon, not quite now. The purposes of that, I intend to hold some discussions directly with the officials and representatives of the AMWU. I would then intend that there be discussions between firstly, Mr Bull and his client and the AMWU and secondly, between you, Mr Borlase, and the AMWU. Should those discussions not eventuate in any resolution then I will reconvene following those discussions this afternoon. I will adjourn for the time however and go off record now.

<SHORT ADJOURNMENT [2.55PM]
<RESUMED [3.43PM]

PN145

THE DEPUTY PRESIDENT: Yes, Mr Bull.

PN146

MR BULL: Yes, thank you. Subsequent to you going off the record we have taken the opportunity to discuss our position with the respondent union, the Metal Workers Union, and we're in a position, your Honour, to make the following submission and that is, that we request our application, that is on behalf of the Abigroup Asset Services Pty Ltd, 128 of 2005, be adjourned. The basis for that application to adjourn it is that we have an undertaking from the union officials this afternoon that they will be recommending a return of work to the workforce on Monday morning when they meet and suffice to say that on that basis if they do return to work then subsequently the matter will be dismissed ..... application if they return to work.

PN147

We are in position to say without any details that we have resolved that a course of action will follow, although it's not finalised, but at least a course of action is that the employees will return to work and there's ..... to resolve the issues in dispute, and on that basis, sir, we ask your indulgence to have the matter adjourned.

PN148

THE DEPUTY PRESIDENT: Yes. Do you confirm that, Mr Golesworthy?

PN149

MR GOLESWORTHY: Yes, sir. We have certainly given an undertaking that we will return to work at 6.30 ..... discussed with the company, sir.

PN150

THE DEPUTY PRESIDENT: Yes, thank you. On that basis I will adjourn that matter and if there is not a return to work then it would be my intention to list the application at or around 1 pm on Monday, Mr Bull and Golesworthy, but hopefully that won't be necessary. Have there been any discussions between the other companies and the AMWU? On that basis I will go further off the record and adjourn those proceedings at this time for discussions to take place. We are off the record.

<SHORT ADJOURNMENT [3.45PM]
<RESUMED [4.46M]

PN151

THE DEPUTY PRESIDENT: Yes, Mr Bolase?

PN152

MR BOLASE: Thank you, your Honour. Thank you for the adjournment and
for - - -

PN153

THE DEPUTY PRESIDENT: You didn't want it.

PN154

MR BOLASE: That's right. I'm a polite person anyway. Your Honour, we have managed to reach a consensus position in how to proceed forward with this particular dispute at the moment and that is, there's been agreement that the union will advise people that they are to make themselves available for critical work over the weekend for any of the three companies and there is a commitment as well by the union, on their behalf and that of the employees that they will follow the dispute resolution procedures contained in respect of agreements in future on all issues, whether they're returnable or otherwise, and that there will be a brief meeting that will take place on Monday, expected to be no longer than half an hour which will occur at 10 o'clock, after which there is to be a return to work that will occur.

PN155

On that basis we are prepared to request the Commission to adjourn these proceedings on the same basis as that granted to Abigroup in their application.

PN156

THE DEPUTY PRESIDENT: Yes, thank you. Mr Golesworthy, is that the situation?

PN157

MR GOLESWORTHY: Thank you, sir. We concur with Mr Borlase' submissions, sir, apart from adding that we have also asked the companies to contact either myself or Mr McCartney to ascertain what is critical work so we can have some input into that so we don't end up with a scenario where people might be able to pointing fingers at each other, sir, if it's not.

PN158

THE DEPUTY PRESIDENT: Yes, that's a good suggestion and they have got your contact numbers, et cetera?

PN159

MR GOLESWORTHY: I believe so. But if they haven't, sir, I will endeavour to give it to them.

PN160

THE DEPUTY PRESIDENT: Undertake to provide them. Thank you. I will adjourn on that basis. Thank you, gentlemen.

<ADJOURNED INDEFINITELY [4.48PM]