C2005/3115, Transcript of Proceedings [2005] AIRCTrans 1327 (14 June 2005)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 11752-1

COMMISSIONER BLAIR

C2005/3115

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION
AND
AUSTIMBER INDUSTRIES
s.99 - Notification of an industrial dispute
(C2005/3115)

MELBOURNE

9.24AM, WEDNESDAY, 01 JUNE 2005

PN1

MR D ROUNDS: I appear on behalf of the CFMEU Forestry Division.

PN2

MR P RYAN: I seek leave to appear on behalf of Austimber Industries Pty Limited.

PN3

THE COMMISSIONER: Thank you. Mr Rounds, do you have any objections to Mr Ryan seeking leave.

PN4

MR ROUNDS: No, Commissioner.

PN5

THE COMMISSIONER: Thank you. Leave is granted, Mr Ryan. Right, Mr Rounds?

PN6

MR ROUNDS: If the Commission pleases, I'll just give you a very brief summary of what today is about. I was before you, Commissioner, on 18 November 2004 in relation to a possible merger between Austimber, Terra Timber and Auswest. On behalf of the union and its members we have been continuing negotiations with the company seeking to have a pay rise put into place or in the event of that to have an EBA put in place during the period of time until the merger goes through, as we have been negotiating, or the expiration date of the last agreement was October of 2004.

PN7

The last time I appeared in front of you, Commissioner, there was a recommendation made from yourself that the company would endeavour to meet with myself or the union in the first week of December 2004 to hold discussions and just to hopefully get things moving and find out some dates, and so on and so forth. That meeting didn't take place, and after several attempts or more than several attempts and notification in writing and emails, and so on and so forth, to Mr Robert Crawford requesting meetings, I've had several meetings with him but the answer has been the same, is that he can't tell me, that he can't do anything and he won't do anything until such time as the merger goes through.

PN8

The merger was originally supposed to be final, virtually over and done with by the first quarter of 2005, and I still have no idea and the members have no idea of when the possible merger could be possibly completed. It came to a head, Commissioner, on 2 May 2005, when the members on Austimber site decided to take a day's industrial action and walk off the job, which was organised. We did that. The reason I'm here before you today, Commissioner, is under the Act of Freedom of Association, for the reason being is because half my members, and they've told me at a mass meeting on Wednesday that they have been threatened by the company that if they took the industrial action on 2 May, more so to casuals, that they wouldn't have a job come the next day. And that was raised in a mass meeting with myself and Jane Calvert last Wednesday up at Austimber.

PN9

The members on the floor are very intimidated and are very nervous about their jobs now, and the reason being is because they are virtually being - well, in their words, being stood over by the company with idle threats that Mr Robert Crawford has picked out the trouble makers and he knows who the trouble makers are, and he's told several of them that the front gate is to the right of them and if they don't like working in the workplace that they can leave their employment.

PN10

I've had 10 resignations, Commissioner, from the site as of last week. It was faxed, or was sent to Mike O'Connor, our national assistant secretary of the union, with the attachment of Mr Robert Crawford's card, and after many, many conversations over the phone Mr Robert Crawford has said to me - well, I asked the question, I said, why would you send it to my national assistant secretary, why didn't you send it directly to me so I could process them? And he said because I wanted your boss to know how much of a trouble maker you've been and how much of a trouble maker you are.

PN11

THE COMMISSIONER: This action that occurred on 2 May, is that within a bargaining period?

PN12

MR ROUNDS: Yes, it is, Commissioner.

PN13

THE COMMISSIONER: Right, okay. So it was protected action?

PN14

MR ROUNDS: It certainly was. Myself and Jane Calvert went to the site on Wednesday and we put to the members on site, we asked them the question, you know, do you want us to be here with you and support you through this? Like, give us the answer now, because if you think we're coming in too hard or too fast tell us to go away, and we'll certainly turn our backs today and walk away. The members voted 100 per cent that they wanted the union with them by their side the whole way through this.

PN15

Now, we have been seeking a pay rise of 3 per cent since the last time we met, Commissioner, and to no avail at this point in time, and also to have two of our long term casuals put onto full time. They've been employed with the company for over 12 months. And we haven't had any success whatsoever at this point in time with that. And our last comment was that we've said all the way through, if we can't achieve a pay rise at this point in time could you please let us know when we can actually start sitting down and negotiating with you over an enterprise agreement, whether it be single with the company of Austimber or whether it be a joint EBA across the board of the three companies? And the same answer that the members have got from Robert Crawford and also myself is that he has no date and doesn't know a date, and won't tell us a date until the merger has been successfully completed.

PN16

The members' frustration over-boiled and we virtually had the day of action, as I said, on 2 May, Commissioner, and I actually pulled the chaps up at the front gate, because we were greeted by the police that morning, and I pulled the chaps up and actually said to the chaps, I said, listen, you know, it's up to you chaps but my recommendation will be to maybe put this off and go back into the company and hopefully keep negotiating. And the members turned around and said to me, well, Darren, it doesn't matter what you say to us, like, we've put up with this for over 10 months now and we've had enough and we are taking the action.

PN17

THE COMMISSIONER: When you say "greeted by the police", what were the police doing there?

PN18

MR ROUNDS: The police were called.

PN19

THE COMMISSIONER: By who

PN20

MR ROUNDS: By Mr Robert Crawford.

PN21

THE COMMISSIONER: Was there a picket on?

PN22

MR ROUNDS: It was in the vacant block beside the sawmill. There was no actual blockage or anything or like a line, so to speak.

PN23

THE COMMISSIONER: So what did the police do?

PN24

MR ROUNDS: The police came and spoke to me and said, you know, what's this about? I explained to them. And they said, well, you know, do you expect any trouble? I said no, I don't, it will be a very peaceful action, which it was. All we did all day was just sit in a circle, so to speak. And so we did that. And the police went and spoke to Mr Robert Crawford, and because we'd also - the intention was to actually to stop any log trucks going in that day as well. Now, one log truck pulled up virtually straight away as soon as the police arrived. I stopped the truck and spoke to the truck driver and just told him what was going on, and he said, well, Darren, he said, I've just come down from Bendoc, which is quite a long way, can I get unloaded? And I said, by all means go in, and I sent him in.

PN25

And the police said to me, listen, Darren, if a truck does happen to pull up, please take them into the company, because we don't want trucks on the road. I said most definitely, I did that, you know, and there were four trucks for the whole day pulled up, and they were all escorted into the property, so there was no danger of an accident. And every time a truck pulled up, or the first time a truck pulled up I was greeted by Mr Crawford, yelled out to me and said, you can't cross the gate line. But I was told by the police that I had a right to do that for the simple reason of safety.

PN26

So as I said, Commissioner, I bring it before you today because it's got to the point where, as I said, Mr Crawford, by the instruction of my members, he's told the members that if they continue to take part within the union that there's going to be consequences.

PN27

THE COMMISSIONER: So what does the union actually seek from the Commission?

PN28

MR ROUNDS: I actually seek from the Commission today, Commissioner, to make some sort of ruling that Mr Robert Crawford has no right to intimidate my members, that it's completely their choice to be part of the union. It's always been their choice, I've never put any pressure on them to join the union. Now, we had everyone in the union up there bar two individuals, and now I've lost 10 members over the last couple of weeks.

PN29

THE COMMISSIONER: So do you seek, when you say a ruling, do you seek an order from the Commission?

PN30

MR ROUNDS: I just seek some sort of recommendation from the Commission to pass on to the company that they can't walk around and intimidate members on the floor.

PN31

THE COMMISSIONER: Okay, thank you. Yes, Mr Ryan?

PN32

MR RYAN: Commissioner, we deny outright in the first instance the assertion that's been made by Mr Rounds about intimidation, we totally reject that assumption. Commissioner, Mr Rounds has raised a number of matters in the course of his submission there, and if I could perhaps deal with the first issue he raised. He seemed to be starting off with the merger and ongoing discussions. Commissioner, that matter was subject to hearings before you, and recommendations were made by you. Those recommendations have been fully complied with, and I believe correspondence was forwarded to your office outlining the extent of how those recommendations had been complied with.

PN33

I don't have that file with me today, Commissioner, so I can't refer to the specific dates, but it is a matter that Mr Rounds started with in today's proceeding, and I just indicate to you that those matters have been fully complied with. And again for the record I will re-affirm the position of the company as I just stated before, that when a decision is made in relation to the merger the discussions will take place in accordance with the recommendations made by you, Commissioner. So all I can say in relation to those issues are that the company will fully comply with the previous undertakings given and will continue to do so.

PN34

It's true that the merger discussions have taken somewhat longer than expected, Commissioner, but for your information, Commissioner, and I'm sure Mr Rounds is well and truly aware of circumstances that have had a major impact in relation to those negotiations in proposed mergers. In a sense it relates to changes in Victorian government state policy to deal with licence allocations. There have been major changes made and announced by the State government over the last couple of months that have had a major impact in relation to the assessments and all the other obvious due diligence work that needs to be undertaken in relation to the proposed merger. So we've had that factor.

PN35

An additional factor has been more recent. The development which has resulted in a 22 and a half per cent increase in the raw material cost of the major product is by these companies, Commissioner, that is in relation to timber. So those factors in themselves have complicated what was already a difficult process in terms of the assessments that were being done. However those discussions are proceeding, and as soon as decisions are made the union will be advised, and obviously the discussions will then take place with the union in relation to the matters that were initially the subject matter of the dispute notification before you, which Mr Rounds referred to as the hearing that took place on 18 November.

PN36

So that's by way of background, Commissioner, to address the issue as to why Mr Round is saying that nothing has happened, and why hasn't something happened? There have been a lot of things happening, and obviously those major developments in relation to changing government policy, in relation to licence conditions and the price of timber, and future changes in relation to the pricing allocation model have to be factored into the equation. So that's why no definite decision has been made at this point in time.

PN37

I turn to the subject matter of the notification which, I might add, Commissioner, we didn't receive a copy of the subject matter of the notification, although just prior to the hearing Mr Rounds did provide it to me, is in relation to a very general, it would seem, assertion and allegations being made against the company in relation to freedom of association. As I indicate, Commissioner, we totally reject that situation as having occurred.

PN38

As to the fact of people resigning from Mr Rounds' organisation, that is for the employees themselves to elect to do so. Mr Rounds has indicated that a significant number of employees have in fact resigned from the union. I believe we could also add a further three employees to date to that resignation number. I was advised earlier this morning that three other employees have now forwarded resignations to the union. Commissioner, as I say, it's not for us to make a judgment as to why those people have resigned, but it may well be useful for me to outline to you from the company's point of view it's concerns in relation to the action undertaken by Mr Rounds in particular in relation to what would almost seem to be an harassment campaign against the company.

PN39

Commissioner, the company, as I've indicated, gave undertakings and re-affirms those undertakings in relation to the issues to discuss with the union following the merger. Well, what Mr Rounds has done by way of numerous actions, by way of radio interviews, by way of newspaper articles, has vilified the company to a certain extent in relation to issues that he perceives as still outstanding in relation to, I suppose we could call it failure to enter into an enterprise bargaining agreement with the company.

PN40

Commissioner, one of those such issues, and I would suggest, is probably one of the prime reasons why a number of employees of the company have resigned from the union, probably arose from a letter drop that Mr Rounds I believe organised to be undertaken in the Orbost area. I'm not sure whether every house in Orbost received the letter, but it was the understanding that this letter was dropped around every household in the Orbost area and was followed up by radio interviews. And basically in it, it seriously denigrated the company in relation to their position and standing in the community.

PN41

Clearly that had an impact in relation to the employees, and I would suggest that the employees, by way of their resignations, and their actions speak for themselves in relation to the ongoing position.

PN42

THE COMMISSIONER: What sort of comments were made, Mr Ryan?

PN43

MR RYAN: It was basically - I haven't got a copy of the letter to table here today, Commissioner, but it was a letter addressed to Dear families, friends and neighbours, we're writing - Mr Rounds it is, it's signed by Mr Rounds, CFMEU, FFED East Gippsland organiser, the letter expressing concerns about the viability of the mill and the members' jobs, and in it, it refers to the fact they're concerned about their jobs because the company won't enter into enterprise bargaining agreement negotiations with the company, and indicates they've been trying for
10 months to reach an agreement in relation to it, to proposed increases. That's the thrust of the company, and it sort of refers to historical things. I can provide you with a copy of it.

PN44

But clearly, I mean, why it would need to be circulated to every household in the Orbost area is somewhat questionable, unless it was designed to destabilise the company. But that's of course - - -

PN45

THE COMMISSIONER: Why does that denigrate the company if it simply says what is fact?

PN46

MR RYAN: Well, I'm not saying that it is, as a matter of course, fact, because the facts are that the position was reached, a proposed agreement was put on the table for the union to consider in August last year, that was rejected. Then we had the phase in of the proposed merger, and a situation was arrived at following proceedings here, Commissioner, in terms of what the agreed process was going to be from there. Subsequent to that agreed process we now have the union embarking on industrial action in relation to a wage claim that was being sought, and Mr Rounds has referred to that industrial action that took place early in May, and subsequent to that there have been letters from the union to the company seeking additional information.

PN47

Now, the company have complied with those requests in good faith, they've complied with those requests. There was a letter from Mr Rounds seeking detail in relation to rates of pay and the like, and that's been complied with. Subsequent to that there was a further request from Mr Rounds and Jane Calvert to attend the site last week, and again there were no difficulties in relation to that, and time was made available for Mr Rounds and Jane Calvert, the state secretary of the union, to meet and discuss issues with the employees.

PN48

Unfortunately that meeting didn't go as well as the company would have liked from the point of view that in providing access to the site for Mr Rounds and Jane Calvert to address the employees the company did ask that certain matters take place, in other words, not unduly interfere with the work in progress, have the meeting in a certain area, and the like. Unfortunately that didn't occur because after the meeting took place, well, then Jane Calvert and Darren Rounds continued to go off and talk to individual employees at work stations when we understood work was supposed to resume.

PN49

The company wrote to the union expressing their concerns in relation to that matter, and again I mention it from the point of view, it's part of the process that we're at today. Subsequent to that Mr Rounds again has written to the company, I think on 30 May, seeking to have a further visit on site tomorrow, to which again the company have replied to Mr Rounds indicating, well, clearly we have no problem with you coming to the site providing that you comply with the requirements of the Workplace Relations Act in relation to conducting discussions, and the major point being that the discussions take place with the employees at their meal breaks, and the like.

PN50

So putting Mr Rounds on notice that despite them, shall we say, overstepping the mark last week, again this preparedness to allow him to come onto site in relation to the request that's been made providing that he complies with the requirements of the Act, because quite frankly our concerns are that he's been overstepping the mark in that area. Now, Commissioner, there is from our point of view no substance to the allegation that's been made. There is nothing at this point in time for the company to respond to. But I say it's a fact that a number of Mr Rounds' members have resigned, but that's their choice to resign as it is their choice to join his organisation.

PN51

Clearly there are no factors that can be attributed to the company in relation to any way or any cause could be made for any supposed breach of the freedom of association provisions. So we reject it outright, Commissioner. If the Commission pleases.

PN52

THE COMMISSIONER: Thanks, Mr Ryan. Yes, Mr Rounds?

PN53

MR ROUNDS: If the Commission pleases. Mr Ryan has just raised, Commissioner, about that the union received letters back from Mr Crawford, which I haven't seen at all. Nothing had been forwarded to my in trays about letters of complaint about Jane and myself being on site last Wednesday, so Mr Ryan, no, I haven't seen those letters so I really can't comment as far as what's involved in that letter because I haven't seen them, and that's the honest truth.

PN54

As far as Jane and I were on site last Wednesday, Commissioner, we complied with the rules as far as meeting with people during their meal break. We were told by Mr Crawford that we couldn't have the meeting where our normal meeting place is, which is under a canopy, and it started to rain, it started to heavily rain just as the meeting was about to start, so Jane asked the members to come up under the canopy because we can't of course have people getting wet when we're trying to hold discussions. So it was only a matter of moving sort of, you know, probably 10 metres from where we were allocated the position out in the car park to where the canopy and where I've had meetings for two years now. It's never been an issue before.

PN55

As far as me going up on the site tomorrow, Commissioner, the reason I'm going up there tomorrow is because Mr Crawford has stopped payroll deductions. There's been payroll deductions ever since I've been an organiser for the site, and I had phone calls from members on Thursday night saying, Darren, we've just received our pay and our union fees haven't been taken out. I had a phone call from Mr Robert Crawford on Friday and I raised that with him, and he said, well, he said, Darren, there is no longer payroll deductions here, so hence the reason why I have to go up on Thursday, to actually walk around the site and actually speak to the individuals to pick up their union fees.

PN56

There was no notification to me whatsoever that Mr Crawford was going to stop payroll deductions, because if there was I certainly wouldn't be up there tomorrow. Yes, Peter, as I said, I haven't seen those. And the reason I'm up there tomorrow, Commissioner, is simply to pick up the money for our union fees, and which several members have rang me and asked me can I come up and pick up their money because they still want to be covered by the union, and that's simply the only reason I'm going up there tomorrow, to hopefully pick up some money.

PN57

THE COMMISSIONER: The Commission, as you know, can't force the parties into an enterprise agreement. The act encourages enterprise negotiations, but it doesn't empower the Commission to direct that the parties actually reach an agreement. It can encourage the parties to do so. Mr Ryan has indicated that the process that has been gone through or been going through in terms of the company mergers has been somewhat protracted, probably beyond the desires of those that are negotiating the merger, and there's a couple of things that have happened during the course of those discussions, and one is the 22 per cent increase in the timber product, and the second one is recent changes that have been made to the licensing requirements by the Victorian government, which both of you would know far better than I what they were or are.

PN58

It does worry the Commission I've got to say, that if there is a bargaining period in place and people exercise their rights within that bargaining period under the Act and the company then exercises their rights, that's fine. There may be sometimes an inference that if certain things are done then there might be some affect on their employment. I'm not saying that that has been said directly, but there might be an inference. Likewise management seem to be obviously a bit annoyed at what they see as material that is inflammatory being issued by the union.

PN59

What it requires, in the Commission's view, is cool heads to prevail, and both parties I think need to step back a bit. It would assist if the union were to cease issuing material at this stage to allow things to settle down a bit, and any inference at all whether direct or indirect that there may be some affect on somebody's employment if they participate in what is a legal right, providing those requirements of the Act have been met, should also cease. The union has their rights in terms of protected industrial action, as does the employer have their rights in terms of lockout.

PN60

But I would think it would be desirable for both parties to step back. It's entirely a matter for the company as to whether they have deduction of union dues. It just, I'd have to say, says to the Commission that in itself, to withdraw that might be a bit of a provocative move. Maybe it's something that could be discussed quite apart from any discussions that the parties may have regarding enterprise negotiations or an enterprise agreement.

PN61

I'm not prepared to issue an order at this stage given what I've just said, so it would be the Commission's recommendation that both parties step back, the union not issue any material, written material, other than notices that may a require of your meeting of your members, etcetera, that's fine, I don't have a problem with that. You will comply with the Act in terms of visiting the premises and meeting with your members.

PN62

The company is to comply with the Act in terms of recognising the rights of those people to take protected industrial action with no inference in regards to threat of ongoing employment. Is there any indication as to the possible timeframe for the settlement of the discussions on merger?

PN63

MR RYAN: Yes, Commissioner. Perhaps I should have indicated that. Again, I don't want to unduly raise expectations of that, but it is clearly an objective from all parties involved that it would be concluded by 30 June, so it's the end of this month and, as I say, it's clearly hoped that it would have been in place by now, but those other factors have compounded, but I can advise you that the expectation or the objective that the parties are working towards is the end of June.

PN64

THE COMMISSIONER: The end of June 2005.

PN65

MR RYAN: Which is less than three weeks. Well, that's the objective.

PN66

THE COMMISSIONER: Well, could I suggest to the parties that come the end of June, depending on what happens, either party is at liberty to ask the Commission to relist this matter and, in fact, the previous matter if you wish, to see whether or not we can assist the parties to come to a reasonable settlement.

PN67

MR RYAN: Commissioner, we have no objection in relation to that. I again accept your recommendation that it probably be listed under the previous matter rather than this current matter.

PN68

THE COMMISSIONER: Yes. So, Mr Round, I think the previous application was your union's application.

PN69

MR ROUND: That's correct, Commissioner.

PN70

THE COMMISSIONER: So come the end of June, either way, if you wish to have the previous matter relisted in terms of trying to see whether we can at least get some discussion started regarding enterprise, it may take some of the heat out of it, if that's possible. Nothing further?

PN71

MR ROUND: If I could just raise, Commissioner, we have actually put into effect now, Jane Calvert has actually requested to meet with Mr Duncan Johnson, who is the chairman of directors at Austimber, this week, and she spoke to Duncan and said that, you know, Darren and Mr Robert Crawford have come to loggerheads so I think it's best that I step in to try and cool it down a little bit, so we're hoping to have that meeting some time this week.

PN72

THE COMMISSIONER: Well, if it's of any assistance, what the Commission will do is, the recommendation it's just issued it will get as a matter of urgency to provide to the parties, and you can use that for whatever it's worth in terms of trying to let cool heads prevail. Thanks, the Commission will stand adjourned.

<ADJOURNED INDEFINITELY [9.52AM]