C2005/3103, Transcript of Proceedings [2005] AIRCTrans 1260 (6 June 2005)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 11668-1

COMMISSIONER BLAIR

C2005/3103

SMORGON STEEL REINFORCING
AND
THE AUSTRALIAN WORKERS' UNION
s.127(2) - Appln to stop or prevent industrial action
(C2005/3103)

MELBOURNE

3.46PM, TUESDAY, 24 MAY 2005

PN1

MS S RALPH: I seek leave to appear on behalf of Smorgon Steel Reinforcing and with me is MR J FURNESS, the national operations manager.

PN2

MS E WALTERS: I appear for the Australian Workers' Union.

PN3

THE COMMISSIONER: Thank you, Ms Walters. Do you have any objections to Ms Ralph seeking leave?

PN4

MS WALTERS: No, Commissioner.

PN5

THE COMMISSIONER: Thank you. Leave is granted, Ms Ralph. Yes, thank you.

PN6

MS RALPH: Commissioner, yesterday you will recall we were before you in relation to a dispute relating to an employee of Smorgon Steel Reinforcing.

PN7

THE COMMISSIONER: Yes.

PN8

MS RALPH: There was an agreement that was reached between the parties, there were orders made by yourself in relation to that matter. One of those orders in particular was that the night shift would return to work that night and that all efforts would be made by the company to ring around and make sure the night shift arrived. There was agreement between the parties, in fact it was part of your order that if employees needed clarification that they would be told to either ring Ms Walters or Mr Melham from the AWU to seek clarification.

PN9

As it turns out, night shift didn't arrive and when the time came this morning for the morning shifts to arrive they did in fact attend the workplace but no work has taken place. There was effectively a report back to the employees about what had taken place by Mr Melham, I understand, and Ms Walters, I understand, was also there. As a result of that for the rest of the day shift, day shift sat in the tea room of Smorgon Steel Reinforcing at both sites, I understand.

PN10

While this took place, Mr Dicicco and Mr Melham sought to renegotiate the agreement that was reached yesterday between the parties. In fact, they did manage to renegotiate the agreement between the parties such is the intention of Smorgon to maintain its relationship with its employees and obviously with the AWU. It was prepared to make some concessions and finally at about, I think it was 12 o'clock, at the deed of release that was provided with some amendments made by us and given to Mr Melham and Mr Dicicco it was finally agreed to but still the day shift did not return to work.

PN11

In fact what was put to Smorgon Steel Reinforcing was that payment should be made to those employees while they sat in the tea room this morning. In fact if payment wasn't paid to them, the afternoon shift and the night shift would not come to work. In fact what we understand, perhaps 20 minutes ago, was that when the afternoon shift arrived at work they had conversations with managers from Smorgon Steel Reinforcing at both sites who said to them, we are going back into the Commission, there were orders made yesterday, we are going back into the Commission today.

PN12

Those employees made a decision that they would sit out this hearing today and that they would consider going back to work based on the outcome of the orders that you might make in terms of our application for a section 127. But we understand probably about 20 minutes ago they were told by the AWU delegate at both operations on that site that they should go home and we understand that is now what has happened. The afternoon shift has now returned to their homes rather than to remain at the workplace and we understand that night shift is unlikely to arrive.

PN13

In part of the discussions with Mr Melham, we understand that he did put to Smorgon Steel Reinforcing that this was an issue of parity that given that the day shift had to effectively take industrial action to obtain further concessions in relation to Mr Dicicco's terms of settlement, that parity should be also obtained for the afternoon and night shifts and that they should, obviously, not return to work if day shift was not to be paid.

PN14

They are my instructions, Commissioner. Obviously, the company is very concerned that this has taken place, that there have been a number of breaches of not just your order but also in terms of the Workplace Relations Act and an attempt to obtain strike pay for industrial action that is taken. The company seeks your approval of obtaining a section 127 order to make it abundantly clear to the employees and to the AWU that they are required to return to work in their normal way. Now, I am happy to go through the provisions of section 127 now if need be or we can do that at a later stage.

PN15

THE COMMISSIONER: The only question that the Commission has is that if the orders are issued and they are not complied with, would the company prosecute those orders in the Federal Court?

PN16

MS RALPH: My instructions, Commissioner, are at this stage that obviously Smorgon Steel Reinforcing would have to consider that action, it is a very serious action. You can see by the actions that have been taken in this very long and arduous process, it is concerned about its relationship with its workforce as well as the AWU. They are my instructions at this stage.

PN17

THE COMMISSIONER: What would be the purpose in the Commission issuing the orders if the company dilly dallies and contemplates its navel about whether or not it should prosecute them? Either they are genuine or they are not.

PN18

MS RALPH: Commissioner, my instructions are that the company is genuinely wanting to get its workforce back to work and, obviously, if further industrial action takes place after the granting of section 127 orders, the company would then make a decision to - - -

PN19

THE COMMISSIONER: The company needs to understand that if the orders are issued and they are not complied with and the company doesn't prosecute those orders in the Federal Court, it does a number of things. It makes a laughing stock of seeking an application, an urgent hearing in terms of the 127 orders. It says that the company is not genuine. It indicates a wrong message to the employees that the company is prepared to back off and it wastes my time.

PN20

MS RALPH: Commissioner, if it pleases, your Honour, I am happy to take a moment or two and get further instructions.

PN21

THE COMMISSIONER: While you do that I will talk to Ms Walters - or I will hear from Ms Walters.

PN22

MS WALTERS: Commissioner, I don't know whether it is appropriate at this point in time for me to provide some - my factual understanding of what has occurred this morning. That is limited after I left the site and I don't know whether it is appropriate that I do so prior to - - -

PN23

THE COMMISSIONER: We'll just wait and see what they can - thanks.

PN24

MS WALTERS: Yes.

PN25

THE COMMISSIONER: Ms Ralph?

PN26

MS RALPH: Commissioner, I have instructions that indeed if the 127 orders are breached by the AWU or its members that Smorgon Steel Reinforcing will take action in the Federal Court to ensure that the workforce returns to work.

PN27

THE COMMISSIONER: Thank you. Ms Walters?

PN28

MS WALTERS: Commissioner, I attended the site this morning. We, as was mentioned in transcript in conference yesterday, a report back meeting had been scheduled to speak to the workforce in relation to this matter. At that meeting, Cesar Melham, the relevant official at the Australian Workers' Union, read the order made yesterday in transcript by yourself, explained to the workforce the implications of that order and furthermore the consequences of breaching that order.

PN29

The employees voted, passed a resolution to return to work tomorrow morning at 6 am. However, can I make it clear that the Australian Workers' Union made abundantly clear to the workforce the orders of the Commission, the circumstances and what had transpired before the Commission yesterday in those proceedings and again, I will reiterate, the consequences of not complying with those orders. Commissioner, I have no instructions in relation to what has transpired. I left the site at approximately, I think, 11.30 to attend another hearing in the Commission.

PN30

Ms Ralph, on behalf of the company, has led some evidence from the bar table in relation to discussions had by Mr Melham and company representatives in relation to payment for this morning. I have no instructions in relation to that matter and will put that on record to the extent that we are not in a position to challenge what has been led by Ms Ralph. I can only reiterate that there has been a resolution passed by the workforce that they will be returning to work for the first shift which commences at 6 am tomorrow morning and the second shift, which I believe commences at 7 am.

PN31

THE COMMISSIONER: Why did thy carry such a resolution, Ms Walters? The Commission understands that the matter that gave rise to the dispute was settled. Ms Ralph now indicates that Mr Dicicco and Mr Melham renegotiated what was an agreed outcome.

PN32

MS WALTERS: Commissioner, and I think, Commissioner, that this was indicated yesterday that, and has also been put on a number of occasions in relation to previous applications that the matter in dispute goes beyond the circumstances of the individual employee being Mr Dicicco.

PN33

THE COMMISSIONER: That was said yesterday but an outcome was reached in terms of Mr Dicicco. Why was there a need to renegotiate?

PN34

MS WALTERS: Commissioner, there are a number of other employees who are in exactly the same position as Mr Dicicco.

PN35

THE COMMISSIONER: That is why part of the decision yesterday was that the parties would confer to draw up a framework to deal with similar instances. Why was there a necessity to renegotiate the arrangement reached regarding
Mr Dicicco? Obviously, it's an alteration to the arrangement that suits him personally.

PN36

MS WALTERS: Commissioner, I understand what the Commission is putting to me. I certainly wasn't privy to those discussions had in relation to - between
Mr Melham and Mr Dicicco and the company. As I said, the employees took industrial action and voted at a meeting on Friday morning to take industrial action, not solely - and I understand that the Commissioner has put it and as part of the resolution yesterday was that the parties would confer in terms of a policy to deal with future circumstances.

PN37

My understanding is the workforce is in a position where they are concerned that that may not occur in good faith and have been extremely troubled by the manner in which they perceive the company to have dealt with this, as Ms Ralph has put it, long and arduous dispute. I can only say that that resolution may in fact be a response to that.

PN38

THE COMMISSIONER: What were the changes to the agreement negotiated, Ms Ralph?

PN39

MS RALPH: Commissioner, I did actually fax across a copy of the deed. Effectively, there was an additional amount of money that was included of about $2000, my understanding is. There was some discussion and agreement about the payment of mileage in terms of the worker's compensation claim that Mr Dicicco had and there was also - I think that was pretty much the substance of the changes.

PN40

THE COMMISSIONER: Ms Walters?

PN41

MS WALTERS: Sorry, Commissioner. I actually hadn't understood that prior to this morning that the details of the resolution and settlement reached specifically in relation to Mr Dicicco had in fact been negotiated. When we left the Commission yesterday there had been a, in principle agreement as to the settlement as such but the details of which I had understood had not been nutted out and certainly were on a basis that they were to be kept entirely confidential.

PN42

THE COMMISSIONER: But the arrangement reached yesterday was a final arrangement.

PN43

MS WALTERS: Yes, Commissioner.

PN44

THE COMMISSIONER: It had the imprimatur of Mr Dicicco through Mr Melham who had contacted him, as I understood it, and explained the deal. Mr Dicicco now decides to go against that. I can understand the difficult position that Mr Melham may have found himself in but I would have to say, in the Commission's view, Mr Dicicco is dishonest, absolutely and totally dishonest and not genuine. In regards to the matter yesterday, the Commission had a
127 application before it. It chose not to process that, it chose to assist the parties to reach an agreement and it did so.

PN45

MS WALTERS: Yes, Commissioner.

PN46

THE COMMISSIONER: One of those to the agreement chooses to break it. Secondly, the employees of the company choose to ignore an order of the Commission that wasn't given under 127, it was given under 111(1)(e). It was done for a specific purpose. They then ignore that. It would appear they now seek to have strike pay paid which is contrary to the Act. So the company are directed not to pay any strike pay at all and not to make any offer. To do so you are in complete violation of the Workplace Relations Act.

PN47

Secondly, Ms Walters, your members need to know they only get one chance, one chance to dump on this Commission and they have just had it. There is a
127 order that will be issued and it will remain in force for a period of three months. It takes effect from 5 pm tonight. Therefore, if they do not turn up for work they are in breach of that order. That better be very clearly understood. The Commission is not going to tolerate anyone dumping on it, given that it took the time to negotiate a genuine agreement and took the time to take into consideration the concerns of the employees in regards to what they say was an unfair process adopted by the Commission.

PN48

That is why it put in place a process to allow the parties to put in place a framework that would alleviate those concerns and what do your members do? They tell the Commission to go and jump. They can go and jump. The order will take effect from 5 pm tonight. Commission will stand adjourned.

<ADJOURNED INDEFINITELY [4.04PM]