C2005/3133, Transcript of Proceedings [2005] AIRCTrans 1317 (14 June 2005)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 11756-1

COMMISSIONER SIMMONDS

C2005/3133

VICKY MAY
AND
CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION
s.127(2) - Appln to stop or prevent industrial action
(C2005/3133)

MELBOURNE

10.14AM, WEDNESDAY, 01 JUNE 2005

Hearing continuing

PN1

MR W SWAIN: I seek leave to appear on behalf of the applicant in this matter, MR KEN MAY.

PN2

MR J MADDISON: I appear on behalf of the CFMEU and MR F DOYLE will shortly join me as well. He is just trying to find a park. Commissioner, we don't oppose leave of granted in this matter.

PN3

THE COMMISSIONER: Thank you, Mr Maddison. Leave is granted, Mr Swain. Yes?

PN4

MR SWAIN: Commissioner, as you are aware, this is an application for a section 127 order that industrial action on the site stop and no longer occur. The grounds are fairly brief in the application, I don't propose to take you through them in any particular detail other than it would appear that the basis for the action that we say is taking place is that the union has demanded that the principal employee, a Mr Miles Kenyon, to be a full time job steward on the site. That application has been, that request, or demand has been refused and as a result of which we say works on the site are now banned and continue to be so as of this morning. If I can just give you a brief chronology of events. The project in this case, Commissioner, is the construction of nine apartments in Wattletree Rd, Armadale. The builder who was contracted to do the work, Phillips Construction Group Australia Pty Ltd, commenced in September of 2003.

PN5

The owner and principal of the project is Vicky May, an actual person, and there were numerous problems with the builder throughout the project such that an administrator was appointed to the building company on 15 April of this year. Shortly thereafter the principal issued a formal notice of termination of contract on 20 April this year and my understanding and instructions are that all the subcontractors plus direct employees of the builder, who at that stage included Mr Kenyon, were terminated by the administrator shortly after the administrator's appointment. Commissioner, my instructions are that the project has approximately two months to go to full completion. The owner has stepped in and engaged subcontractors herself to complete the works. The owner is not a developer of any experience or any intended future experience, as I understand it is a family development and the owner has no direct employees on the site, only subcontractors.

PN6

The owner does have a subcontract site foreman on site who also is the site's occupational health and safety officer and there is a contract labourer engaged on the site as well. Commissioner, the circumstances of the industrial action are that on 16 May this year shortly after, or approximately a month after the administrator was appointed and the contract terminated and the owner stepping in, Mr Fergal Doyle of the CFMEU contacted the owner's representative, Mr May, the owner's husband who is present here today, by telephone and in the course of the conversation Mr Doyle instructed Mr May that he must employ Miles Kenyon on the site. Mr May refused to do so on the basis that the owner is not directly employing anybody and that, in any event, there is no work for Mr Kenyon to carry out. The work that is there, the contractors on the site are performing the work that is currently available. As a result, Mr Doyle told Mr May that nobody would work on the site until Mr Kenyon was employed and the conversation came to an end.

PN7

On 17 May both Mr Doyle and Mr Kenyon entered the site, called a meeting of those people on the site in the lunch room. As a result of which, Mr Doyle instructed those employees of a floor levelling company, Dafco, spelled D-a-f-c-o, and Mr Doyle instructed those people to pack up and leave the site which they did. There was a conversation following this between Mr Dole and Mr May where it was again put to Mr May that he had no choice but to reengage Kenyon on the site and that he should do so either directly or through a labour hire company. And the justification for this was claimed to be the industry standard. On 18 May, Mr Kenyon himself entered the site and remained in the first aid room until possibly 10.30, then on 24 May the floor levelling company was again contacted by Mr Doyle and told by Mr Doyle that the site is still closed and they are not to return to the site. There still were rectification works for that company to be doing on site but they were again instructed by Mr Doyle not to do so.

PN8

On 30 May, Monday of this week, a lift company was due on site. However, they have refused to turn up as well and remain off site. My instructions are, Commissioner, that only this morning Mr Doyle again instructed the floor levelling company that they are not to attend the site and the works remain at a stoppage. As a result the owner is incurring, on my instructions, $1000 a day in holding costs and we say this is unlawful action. We say there is no protected industrial action here, there is no negotiations taking place with respect to the certified agreement and there is no bargaining period in operation. So there is no obligation on Vicky May to directly employ Mr Kenyon either through a labour hire company or directly by himself. He was never an employee of the Mays, he was an employee of the building company that has since had an administrator appointed and he was terminated by the administrator.

PN9

It is our submission that the Commission should be satisfied in this case that the jurisdictional facts exist and that it is within the exercise of the Commission's discretion to grant the order sought. I understand from my discussions with my friend, Mr Maddison, there is some possibility or the suggestion that the matter could go into conference and we wouldn't have any opposition to that at this stage.

PN10

THE COMMISSIONER: So what do you say the industrial action is?

PN11

MR SWAIN: The industrial action is the prohibition of employees of the floor levelling company and also the lift company from offering themselves for work at the site.

PN12

THE COMMISSIONER: Have they been notified about this?

PN13

MR SWAIN: About this application?

PN14

THE COMMISSIONER: Sorry. Are the lift company members of the CFMEU?

PN15

MR SWAIN: That I don't know, Commissioner.

PN16

THE COMMISSIONER: Almost certainly not I would think.

PN17

MR SWAIN: But the lift company has failed to attend the site. They were due to attend - - -

PN18

THE COMMISSIONER: Well, what has that got to do with me?

PN19

MR SWAIN: The floor levelling company is - - -

PN20

THE COMMISSIONER: Are they members of the CFMEU?

PN21

MR SWAIN: Again I don't know if they are members or not but they have been directed by the CFMEU not to attend and they have endeavoured to - apparently, yesterday, my instructions are, the floor levelling company was attempting to contact Mr Doyle to find out whether or not they could attend the - - -

PN22

THE COMMISSIONER: But try to understand, you are talking about - I am looking at the order and you are talking about the employees referred to in paragraph 3(b) and 3(c) and I can't see the 3(b) or 3(c) so to whom are you referring? I mean, I am just interested to know who this order is to be directed to?

PN23

MR SWAIN: Well, we say under order 3- - -

PN24

THE COMMISSIONER: And who is the principal? There are no employees of the principal you just told me.

PN25

MR SWAIN: There are no employees of the principal.

PN26

THE COMMISSIONER: Well, that .....

PN27

MR SWAIN: There are employees of the contractors and subcontractors to the principal.

PN28

THE COMMISSIONER: Who are members of the union. So 1, 2, and
3, I presume that's 3(c), is it? I mean, I just don't know.

PN29

MR SWAIN: Yes. I believe that is the case.

PN30

THE COMMISSIONER: Let's assume that that is the case at the moment. It's possible that the employees of Dafco - that's the ..... company, isn't it?

PN31

MR SWAIN: Yes.

PN32

THE COMMISSIONER: It's a very loose order. So assuming that I combined
- I am pretty sure I combine employees of contractors and subcontractors who members of the union because the union has been notified of it. It doesn't get you far with the lift people I wouldn't think.

PN33

MR SWAIN: Sorry, Commissioner, I didn't catch that.

PN34

THE COMMISSIONER: I can't see how this order can get you anywhere with the lift people.

PN35

MR SWAIN: Yes, I understand what you are saying there.

PN36

THE COMMISSIONER: Yes. Anyhow, I understand. Okay. Well, I will hear what Mr Maddison has got to say.

PN37

MR SWAIN: Thank you, Commissioner.

PN38

MR MADDISON: Commissioner, perhaps rather than addressing the form of the orders at this stage, it may - - -

PN39

THE COMMISSIONER: I was coming at it from the other way because it is nice to know what people want.

PN40

MR MADDISON: Perhaps in the first instance, it is a matter that we think is capable of being resolved through conciliation as opposed to orders and we certainly don't concede or admit that there is any industrial action happening, even on the applicant's own submissions from the bar table, the floor levelling company has been in and out of the site notwithstanding any alleged bans that they say is in place. In respect of the matter in dispute, there is no claim for a full time job steward. Indeed, in discussions I had yesterday with Mr Shaw who- it may be his original application, although Mr Swain is here today, and made clear to Mr Shaw the union's position that Mr Kenyon, who was engaged on the project and would have been engaged for the life of it but for reasons that had nothing to do with either himself or the union, was terminated when the builder went into liquidation.

PN41

There is a person doing work on the site but we say Mr Kenyon can do that if the contract labourer that Mr Swain referred to - we did make clear to Mr Shaw yesterday that so that Mr Kenyon can do a range of duties. We are not asking for a full time steward, we are saying that he should be entitled to see out the project which does only have a couple of months to go and there is a person there undertaking duties that we say Mr Kenyon can do that, the labourer's duties as well as other associated tasks on the project. As indicated at the outset, Commissioner, that's something that perhaps at least at this stage is capable of being hopefully resolved in conciliation. If the Commission pleases.

PN42

THE COMMISSIONER: Thanks. Mr Swain?

PN43

MR SWAIN: We have no objection in the matter going into conciliation.

PN44

THE COMMISSIONER: The proceeding is now in conference for conciliation purposes.

<SHORT ADJOURNMENT [10.28AM]
<RESUMED [11.44AM]

PN45

THE COMMISSIONER: Yes, Mr Swain? We have had a lengthy discussion off the record. It is has not been possible to resolve the matter through conciliation. Yes?

PN46

MR SWAIN: Commissioner, I am instructed by Mr May to request that this matter be adjourned to a date to be fixed.

PN47

THE COMMISSIONER: So it is an indefinite adjournment, is it?

PN48

MR SWAIN: No, to a date to be fixed.

PN49

THE COMMISSIONER: To a date. Any suggestions?

PN50

MR SWAIN: If there is a date available this week.

PN51

THE COMMISSIONER: Sorry?

PN52

MR SWAIN: If there is a date available later this week.

PN53

THE COMMISSIONER: Later this week. Thursday afternoon, tomorrow afternoon.

PN54

MR SWAIN: Tomorrow afternoon. I believe that Thursday would be better.

PN55

THE COMMISSIONER: That is Thursday.

PN56

MR SWAIN: Sorry. Tomorrow afternoon would be fine, Commissioner.

PN57

THE COMMISSIONER: See what Mr Maddison has got to say now.

PN58

MR MADDISON: Mr Doyle who is instructing me, Commissioner, is in a course tomorrow and Friday to get the new permits under the Victorian, the new Victorian Health and Safety Act. So he will be unavailable.

PN59

THE COMMISSIONER: Well, that is at his peril.

PN60

MR MADDISON: Well, we are not asking for the adjournment. Then on that basis we would oppose the adjournment. The matter, I think, was filed on Friday, it is now Wednesday. You have a statutory obligation to hear it and to determine it quickly.

PN61

THE COMMISSIONER: It was filed Monday.

PN62

MR MADDISON: I had a phone call from Mr Shaw on Friday, I have got - - -

PN63

THE COMMISSIONER: 27 May 2005, that is what the file says.

PN64

MR MADDISON: Sorry?

PN65

THE COMMISSIONER: Sorry, I am looking at the wrong - yes, it was filed Friday.

PN66

MR MADDISON: Friday. It is now Wednesday.

PN67

THE COMMISSIONER: He has turned the page .....

PN68

MR MADDISON: It is now Wednesday, Commissioner. Now, there has been no basis put for why there is a need for an adjournment. The matter, as Mr Shaw indicates in the application, he asks it to be brought on as one of urgency. We are here some four or five days later. There is no reason given for the adjournment and we would oppose it then.

PN69

THE COMMISSIONER: Where is the issue that it's a matter of urgency?

PN70

MR MADDISON: Sorry, Commissioner, I had it here - it's in the grounds on ground 7.

PN71

THE COMMISSIONER: I see.

PN72

MR MADDISON: The Commission is respectfully requested here to determine the matter as one of urgency. We are here now on Wednesday. We oppose the adjournment.

PN73

MR SWAIN: Commissioner, on my instructions, we don't have a problem if the matter is listed early next week. Mr May is requesting the adjournment so that he can confer with his advisors who were engaged in the preparation of the application. And he would also like the opportunity to have the other witness,
Mr Xhilaga, available.

PN74

THE COMMISSIONER: Tuesday afternoon. Would you still oppose adjournment?

PN75

MR MADDISON: What we would say for the proper conduct of the case, if the matter is going to be adjourned to Tuesday afternoon that whoever it is that perhaps running the case would provide witness statements in advance because we now have been informed that there is going to be a second witness. We have no idea what the nature of his evidence may be.

PN76

THE COMMISSIONER: Sorry, did you say there was going to be a second witness? I thought you said it just for advice.

PN77

MR SWAIN: The other, Mr Xhilaga.

PN78

THE COMMISSIONER: I see.

PN79

MR SWAIN: He was referred to in the - - -

PN80

THE COMMISSIONER: Okay. Well, look have you got a problem about that?

PN81

MR SWAIN: With the respective witness statements?

PN82

MR MADDISON: That's fine.

PN83

MR SWAIN: We don't have a problem with that.

PN84

THE COMMISSIONER: All right. Well, I think the easiest way - well, I am going to adjourn the matter until 2.15 on Tuesday 7 June. Mr May, there is a sign outside that says this side of the glass doors you are not supposed to have phones on.

PN85

MR MAY: My apologies.

PN86

THE COMMISSIONER: You had better apologise to Mr Swain because he is the one who is on his feet.

PN87

MR MAY: My apologies, sir.

PN88

THE COMMISSIONER: And as I as saying, at 2.15 on Tuesday 7 June, the applicant is to provide witness statements and also further and better particulars of the draft order. Well, I better not say further and better particulars, I think he is to provide an amended draft order which will at least take account of the matters that I have raised in the course of the submissions that were made and any other matters it wants to take into account. It is to file those witness statements and the draft order by 4 pm on Friday 3 June and should serve those on the respondent CFMEU at the same time. The CFMEU in return shall file any - if it proposes to deal with this evidence it should file the statements of those witnesses by 4 pm on Monday 6 June and serve them on the applicant. Filing is to be effected by email addressed to my associate who will provide you with his email address. Service may be affected in the same manner or by facsimile or personal service if that is your wish. And if there is nothing further the proceedings are adjourned until - - -

PN89

MR SWAIN: There is just one other matter, Commissioner. I am instructed by Mr May to ask, we noted that CFMEU said that they don't admit that any industrial action is currently taking place in their submissions. We would just ask that the status quo with respect to that take place.

PN90

MR MADDISON: We are happy to continue our denial.

PN91

THE COMMISSIONER: You appreciate there is capacity for an interim order but they will still need the jurisdictional basis for the interim order and giving the denial has no jurisdictional basis ..... evidence, so I am afraid I am unable to assist you further. Proceedings are adjourned until 2.15 on 7 June.

<ADJOURNED UNTIL TUESDAY 7 JUNE 2005 [11.52AM]