C2005/3808, Transcript of Proceedings [2005] AIRCTrans 1483 (7 July 2005)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 12037-1

SENIOR DEPUTY PRESIDENT LLOYD

C2005/3808

BOC LIMITED
AND
NATIONAL UNION OF WORKERS THE AUSTRALIAN WORKERS' UNION
s.127(2) - Appln to stop or prevent industrial action
(C2005/3808)

MELBOURNE

3.07PM, TUESDAY, 28 JUNE 2005

PN1

MR S AMENDOLA: I seek leave to appear on behalf of the applicant, BOC and with me appears MR M TAMRAKOLOGOS.

PN2

MR T LYONS: Appearing for the respondent, National Union of Workers, with me is MR KILKENNEY.

PN3

MR C WINTER: Appearing on behalf of the Australian Workers' Union and if I may put in an appearance for MR SMOLJKO, he's caught up with another dispute before another member of the Commission at the moment and hopes to make it upstairs in the next five minutes.

PN4

THE SENIOR DEPUTY PRESIDENT: Any objection to leave?

PN5

MR LYONS: No, your Honour.

PN6

THE SENIOR DEPUTY PRESIDENT: Leave is granted. Mr Amendola.

PN7

MR AMENDOLA: If the Commission pleases, what you have before you is an application pursuant to section 127 of the Workplace Relations Act. The applicant relies specifically on section 127(1)(c). That is:

PN8

If it appears to the Commission that industrial action is happening or is threatened, impending or probable, in relation to work that is regulated by an award or a certified agreement, the Commission may by order give directions that the industrial action stop or not occur.

PN9

In this instance, your Honour, what we say is that there are two certified agreements that regulate work at the Preston site of BOC that are referred to in the application. We have copies of the certified agreements if you don't otherwise have them with you.

PN10

THE SENIOR DEPUTY PRESIDENT: I don't have full copies. I've extracted some provisions, so it might be useful to get the full copies.

PN11

MR AMENDOLA: If the Commission pleases, there are two certified agreements. The two certified agreements are the BOC Ltd Compressed Production of Victoria Enterprise Agreement 2002, to which the AWU is a party and which was certified pursuant to an order of Commissioner Blair on
15 January 2004. The nominal expiry date of which is 30 September 2005. There are two relevant provisions in relation to that agreement to which I would seek to take the Commission in opening. The first of those is clause 13, which is on
page 19 of the agreement. Clause 13(1) states that

PN12

The parties to the agreement agree to strictly adhere to resolving all grievances or disputes by prompt discussion without resort to, or threat of, industrial bans, stoppages or lock-outs.

PN13

There is then a stepped process that follows in the relevant provision, Commission pleases. Moreover and relevantly in terms of what gave rise to the stoppage that occurred yesterday through to about, as I understand or as I am instructed,
2 o'clock today, is schedule B of that agreement, which is at page 28. Schedule B was a schedule that was appended to this agreement by way of an application to vary the certified agreement, you Honour, pursuant to section 170MD. It was to make provision for something as is described in schedule B as the Ultrasonic Project, which sets out job classifications, salaries, rosters and conditions. You can see from the first paragraph that the agreement - the references made to it being a special project that would last for no longer than two years from January 2004.

PN14

The last sentence makes it clear that people will be appointed as fixed term employees in order to work on that project. That project being the ultrasonic testing of gas cylinders, your Honour, that will be the evidence, in order to test for cracks in those cylinders. There are some statements made within schedule B that no existing permanent employee as at a particular date would be made redundant as a result of the project. Moreover, you will see in clause 2, it says that:

PN15

It is envisaged the project will operate until 31 January 2006.

PN16

The other clauses to which I take you at this point, you Honour, relate to clause 5 on page 30 - sorry clause 7 on page 30, which is that:

PN17

At least three months prior to the expiration of the UT Project, other operators will commence training in ultrasonic operations.

PN18

So, as you can see in respect of the ultrasonic project, it really relates to people who do work of the type that would otherwise just be covered by this particular agreement. So, NUW members are not directly affected by what took place yesterday, although in our submission they took industrial action.

EXHIBIT #A1 BOC LIMITED COMPRESSED PRODUCTION OF VICTORIA ENTERPRISE AGREEMENT 2002

PN19

MR AMENDOLA: The other agreement to which we refer is the one to which the NUW is a party and it's called the BOC Limited Compressed Production and Gas and Gear Victoria Enterprise Agreement 2002, which was an agreement which was certified by order of Commissioner Eames on 16 April 2003 and also has a nominal expiry date of 30 September 2005.

EXHIBIT #A2 BOC LIMITED COMPRESSED PRODUCTION AND GAS AND GEAR VICTORIA ENTERPRISE AGREEMENT 2002

PN20

MR AMENDOLA: The provision to which I take the Commission to is also clause 13, which is in terms of the copy that I handed up to the Commission, page 15 of 24, starting at the bottom of that page. The top right hand corner at 15 of 24 - if you go down to the bottom of the page, it says - the heading is Grievance and Dispute Resolution Procedure, and then one goes over the page to see the text of it. It is in the same terms as the grievance procedure to which I referred your Honour in relation to the AWU certified agreement. It states that:

PN21

The parties agree to strictly adhere to resolving all grievances or disputes by prompt discussions without resort to, or threat of industrial bans, stoppages or lock-outs.

PN22

By way of opening, your Honour, it is the intention of the company to lead evidence through Mr Turner, who is the production manager for Victoria and Tasmania, that a dispute arose in relation to work envisage by schedule B, that there was correspondence sent, which sought to allay the fears or concerns perhaps it would be better described of the AWU, that they had raised. That a stop work meeting took place yesterday, that at that stop work meeting a decision was taken that the employees, they being both employees or members of the AWU and also employees or members of the NUW, that they would take strike action for 24 hours.

PN23

The evidence that will be given by Mr Turner will also be to the effect that both a representative of the AWU, Mr Jones, and Mr Smoljko indicated to Mr Turner at the end of that meeting and after having conveyed the decision that they will walk out every time, I've told you before. The reason that we will be leading evidence in relation to that, your Honour, is whilst the industrial action that occurred yesterday and finished today has taken place, it will be our submission that there is a threat of further industrial action and in effect a threat not to comply with the grievance procedures that are set out in the two certified agreements.

PN24

Moreover, there will be evidence that will be led from Mr Turner that this isn't the first instance of either stop work meetings taking place either without the permission of the company or stop work meetings taking place with the permission of the company but going beyond the time that the company authorised the stop work meetings to take place. There will be evidence led of a recommendation made by Acton SDP, back in May 2004 and also of industrial action that took place as recently as April 2005 in relation to the dismissal of an employee.

PN25

So, in essence by way of opening, your Honour, what we will be saying is that there is a history of industrial action that's taken place, a flouting of the grievance procedures and a threat of further industrial action that would justify the order being made. Moreover, because at this point in time not much has been said in respect of the NUW, the fact is that in relation to the stoppage that took place yesterday and today, NUW members went on strike. Although, the issue doesn't have anything to do with them in any specific way, in any direct way. We say that in terms of the characterisation of them going out, in effect in sympathy, is something that dictates in favour of an order being made.

PN26

In terms of the other jurisdictional requirement, we say that my client is a person affected, pursuant to section 127(2)(b) as a party to the agreement. This being the subject of the industrial action and evidence will also be led about the consequence of the industrial action that took place yesterday and the concerns about further industrial action taking place in effect without having any regard to the grievance procedure.

PN27

At this point in time, your Honour pleases, I'd call Mr Turner.

PN28

MR WINTER: If your Honour pleases, I'd seek to have the matter adjourned even for a short period. One, the organiser involved in the matter has not been able to give me instructions, he's involved in another matter before another member of the Commission. I believe it would be unfair to proceed without myself having instructions whatsoever. I haven't got a copy of the application in relation to this matter, I've been involved in other matters before this Commission most of the day or other disputes.

PN29

So, I would like to have the matter adjourned and if possible, I believe it might be preferable, to resolve some of the issues if we could go into conference if the adjournment request is accepted.

PN30

THE SENIOR DEPUTY PRESIDENT: Mr Winter, Mr Lyons.

PN31

MR LYONS: Your Honour, if I could rise to support my friend's application. In our submission, a great deal of the urgency has gone out of this application because there has been a return work and work is proceeding normally. In those circumstances, the proper course is to exercise its conciliation functions in relation to the application. While we don't have an objection about the matter of service, we were served, it will be necessary for myself also to seek some instructions, Sir, because some of the grounds that my learned friend went to, do not appear in the written material. So there would need to be an opportunity for a discussion and given that work has resumed, we say it's proper that the matter be dealt with in conciliation.

PN32

The first instance which will have the happy side effect of allowing Mr Winter to confirm his instructions and given there's also been a return work, your Honour, there's no need for the matter to proceed in what we describe in any sort of indecent haste. There should be, in our submission, the proper course may be for the applicant to go away and put at least an outline of the witness evidence they propose to put, so we're in a position to cross-examine and lead any evidence in reply.

PN33

We do have a fair bit to say at some point, sir, about what caused the dispute, which my learned friend has neatly glossed over but essentially it was caused by the employer, in our submission, breaching the agreement. That's a matter that we seek to agitate before you, initially at least, in conciliation. It may well be that if there's an agreement from the employer that they will honour the agreement then the matter can go away. So, it may well be something that can be dealt with productively in conciliation, in our submission, if the Commission pleases.

PN34

THE SENIOR DEPUTY PRESIDENT: Is there threatened industrial action at the moment?

PN35

MR LYONS: From the part of the NUW, we deny that, sir. There's no threat.

PN36

THE SENIOR DEPUTY PRESIDENT: No threatened industrial action.

PN37

MR LYONS: Certainly, for the immediate future while the conciliation conference is being conducted, the work on my instructions is proceeding normally. So we're not suggesting this be done with a gun at anyone's head, sir, and that's it.

PN38

MR WINTER: My instructions are that work has returned to normal at this stage and that there's no threatened industrial action at this stage.

PN39

THE SENIOR DEPUTY PRESIDENT: No threatened industrial action.

PN40

MR AMENDOLA: Your Honour, whilst I have sympathy with Mr Winter, he gave me an explanation of the sort of things he's been going through in the last day or so. The fact is, the application was served, the organisation did receive it. It is said by Mr Winter and Mr Lyons that they are instructed that there is no threat. We are clear in terms of the instructions that we have that there is a threat that was made. Now, if it's not just a matter of 'we are instructed that there's no threat' but a positive undertaking that there would be no industrial action taken, my client would be far more amenable to having some conciliation to discuss the way forward in relation to taking of industrial action.

PN41

With all due respect to my learned friend, Mr Lyons, it's a bit rich to say that if the employer says they'll comply with the agreement then we can go forward, that fact is that there has been a 24 hour stoppage. There's a grievance procedure and there's section 170LW of the Act. To say we're going to smack you, but if you say you won't do it again we don't do that, is really - it's completely inappropriate. If my friends want to say that they undertake that there will be no industrial action taken whilst conciliation occurs in respect of industrial action, then I can get some instructions from my client.

PN42

Otherwise, it would be my submission that we ought to proceed. I'm happy to give a short adjournment for Mr Winter to get some instructions, since he's been inconvenienced, but I'm talking about a short adjournment. But otherwise, I think it's only fair that in a situation where it's not just matter of 'we are instructed there's no threat', what about 'we undertake that no industrial action will be taken'?

PN43

THE SENIOR DEPUTY PRESIDENT: Mr Amendola. Mr Winter how long were you looking for, for an adjournment?

PN44

MR WINTER: In relation to this matter the organiser has arrived from his previous matter. We would be prepared to go into conference now in relation to this matter. There is clearly no threat that of future industrial action whilst this matter is being conciliated. I see nothing preventing the matter being dealt with in conference. From my limited instructions, it's clear that I've been told there has been a breach of the agreement by the company that resulted in some disputation but at this stage there's no threatened industrial action. We would be prepared to give a commitment at this stage that whilst processes are being dealt with via conference then there'll be no threatened industrial action.

PN45

MR LYONS: Likewise, sir, I think.

PN46

THE SENIOR DEPUTY PRESIDENT: I think your undertakings go some of the way to what Mr Amendola is seeking but at this stage I propose to adjourn to private conference.

<SHORT ADJOURNMENT [3.26PM]
<RESUMED [6.09PM]

PN47

THE SENIOR DEPUTY PRESIDENT: The parties have consulted about the application and have reached a basis of resolution, which is reflected in the recommendation which the Commission now makes.

PN48

The parties undertake to comply with clause 13 in respect of agreements including requirements to resolve all grievances and disputes without resort to, or threat of industrial bans or stoppages. Service to customers will always continue without interruption or delay. Effective immediately, the ultrasonic testing employees will be engaged in buffing, scraping painted cylinders until such time the ultrasonic testing machine becomes operational or Friday 1 July 2005, whichever is the earliest. In the event the ultrasonic testing machine remains non-operational after that time, discussions will occur between the parties on that day to discuss and allocate alternate duties. In the event the ultrasonic testing machine is operational, the Friday meeting will discuss the broader issue of resolving the ultrasonic testing issue.

PN49

There will be a report back to the Commission regarding the progress of the matter at 11.30 am on 5 July 2005. The parties are at liberty to apply to the Commission at any time if any issues arise in implementing this recommendation.

PN50

MR AMENDOLA: If the Commission pleases, in respect of the undertaking with recording in the recommendation, I'm instructed by my client to provide that undertaking.

PN51

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Amendola.

PN52

MR LYONS: If the Commission pleases, on behalf of the National Union of Workers I give the undertaking in paragraph 1 of the recommendation.

PN53

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Lyons.

PN54

MR SMOLJKO: Please the Commission, the AWU also gives its commitment to abide by that undertaking.

PN55

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Smoljko. The application is now adjourned.

<ADJOURNED INDEFINITELY [6.11PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #A1 BOC LIMITED COMPRESSED PRODUCTION OF VICTORIA ENTERPRISE AGREEMENT 2002 PN18
EXHIBIT #A2 BOC LIMITED COMPRESSED PRODUCTION AND GAS AND GEAR VICTORIA ENTERPRISE AGREEMENT 2002 PN19