C2005/4326, Transcript of Proceedings [2005] AIRCTrans 1769 (26 August 2005)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 12486-1

DEPUTY PRESIDENT IVES

C2005/4326

ROCHE MINING (JR) PTY LTD
AND
CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION THE AUSTRALIAN WORKERS’ UNION COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION ILUKA RESOURCES PTY LTD
s.127(2) - Appln to stop or prevent industrial action
(C2005/4326)

MELBOURNE

2.12PM, THURSDAY, 11 AUGUST 2005

PN1

MR R DALTON: I seek leave to appear for the applicant in this matter.

PN2

MR N OGILVIE: I seek leave to appear on behalf of an intervenor being Iluka Resources and to foreshadow seeking leave to intervene on behalf of Iluka Resources in this matter as well.

PN3

MR J MADDISON: I appear on behalf of the CFMEU and I don't oppose leave of Mr Dalton in this matter and reserve our position in relation to the intervention of Iluka at this stage, your Honour. And we do foreshadow an adjournment application at the appropriate juncture.

PN4

THE DEPUTY PRESIDENT: Why am I not surprised? Thank you, Mr Maddison.

PN5

MR M ADDISON: I appear on behalf of the Australian Manufacturing Workers' Union.

PN6

THE DEPUTY PRESIDENT: And you have got no instructions, Mr Addison, and you would like the matter adjourned until some time in the next millennium. Am I right?

PN7

MR ADDISON: Your Honour, you have some of the facts right there.

PN8

THE DEPUTY PRESIDENT: Yes, thank you.

PN9

MR ADDISON: Indeed, our position is exactly the same as the CFMEU. If the Commission pleases.

PN10

THE DEPUTY PRESIDENT: Thank you.

PN11

MR J COONEY: I appear for the CEPU Pluming Division. I don't even know if it is necessary to put in but we wouldn't oppose leave but, the same as the CFMEU we would reserve our position, your Honour. Thank you.

PN12

MR S WOOD: I appear for the Australian Workers’ Union and we don't oppose - - -

PN13

THE DEPUTY PRESIDENT: Yes. Thanks, Mr Wood. And who do I have in Hamilton? There is no appearances actually in Hamilton, is there, Mr Dalton?

PN14

MR DALTON: No, there is not your Honour. We have representatives of Roche Mining and they are also representatives of Iluka Resources there. And if we need to go into evidence then I propose to call Mr Morrison who is the manager of - - -

PN15

THE DEPUTY PRESIDENT: That's fine. At this stage I just wanted to know whether there was any actual appearances there to take. Thank you. Look, what I would propose to do, subject to any objections from anywhere, is just to hear briefly from both ends of the bar table what you say the facts are, at least to the extent that you are able to do that. So Mr Dalton, if you can just provide me with a chronology of the facts from your point of view and I will give the opportunity of the unions to respond briefly to that. I don't at this point in time particularly want to go into submissions, what I would prefer to do, and again subject to any objections you might have, is to go off the record and talk to the parties.

PN16

That, at the same time, might provide any opportunity that is necessary for any of the representatives here to seek any further instructions that they might want to seek. And then if we are unable to resolve matters by that means then I would go back on the record. At that stage I would hear from you, Mr Ogilvie, regarding your application to intervene.

PN17

MR OGILVIE: Thank you, your Honour.

PN18

THE DEPUTY PRESIDENT: Is there any objection to that course of action?

PN19

MR DALTON: No, your Honour.

PN20

THE DEPUTY PRESIDENT: All right. If you want to go ahead, Mr Dalton, and tell me what you say has happened and is happening.

PN21

MR DALTON: Well, your Honour, at this stage I am content to rely on the facts that are set out in the grounds in support of the amended application
that is filed and served. In particular paragraphs 3 through to 10. Now in a nutshell employees of Roche Mining and other contractors who are working at the Douglas and Hamilton sites, have taken strike action since mid morning on 10 August. The reason for that is a reaction to the presence of a subcontractor to Iluka Resources performing work, which in the view of the unions, has been work done on the construction part of the site at - - -

PN22

THE DEPUTY PRESIDENT: Who was that and what were they doing at least as far as you understand it, Mr Dalton?

PN23

MR DALTON: I don't know the name of the contractor but my understanding is that there were a number of employees who were seen to be performing work on a part of the site at Douglas which, in the view of the unions was, in the designated construction site area and in which case they should have had a certified agreement with the appropriate union on the terms and conditions that apply on the site and as far as the union could ascertain they were not compliant in that sense.

PN24

THE DEPUTY PRESIDENT: Right.

PN25

MR DALTON: That was the issue that was taken up with Roche Mining the day before by the delegate at the Douglas site, so that is on 9 August and Roche agreed that it would take that matter up with Iluka Resources. Now it seems that by mid morning of 10th, the unions didn't think that the matter was being taken seriously enough or given the priority that they wanted it to be given, and so rather than invoking the disputes procedures on site, they held a meeting. First of all at the Douglas site, and I have a copy of a diary note which on my instructions, is the diary note of the delegate concerned. I will just get instructions on who that was. Yes, there is a note, J Webb from the AMWU. If I could hand the Commission a copy of that.

PN26

THE DEPUTY PRESIDENT: Yes. Mr Dalton, I understand from the written material that you have filed, that there was also an objection taken apparently by the union to an alleged lack of proper induction for this contractor. Is that correct?

PN27

MR DALTON: Yes. That is related to this issue. It is in the induction process the delegates are able to ascertain compliance issues if I could describe it in a neutral way.

PN28

THE DEPUTY PRESIDENT: Yes.

PN29

MR DALTON: And that was one of the issues that he has raised. So, that diary note, you will see a record by the AMWU delegate at the Douglas site recording the first resolution, being that there be a strike with a return 7 am tomorrow morning, Friday morning. That is what we understand the position to be.

EXHIBIT #A1 COPY OF DIARY NOTE

PN30

MR DALTON: So there was a strike on 10th.

PN31

THE DEPUTY PRESIDENT: Yes.

PN32

MR DALTON: Douglas went out at about 10.30 and a meeting was held at Hamilton approximately an hour later and immediately following that, there was a strike at the Hamilton site.

PN33

THE DEPUTY PRESIDENT: So as far as you are aware this contractor came on site on 9th, is that correct?

PN34

MR DALTON: No I don't, that is when the matter was raised with Roche Mining.

PN35

THE DEPUTY PRESIDENT: Right, so you - - -

PN36

MR DALTON: I don't have instructions as to when this particular contractor started.

PN37

THE DEPUTY PRESIDENT: Do you have any instructions as to whether there was any induction of the contractor concerned?

PN38

MR DALTON: My instructions relate to the strike action which is the reason for the application.

PN39

THE DEPUTY PRESIDENT: Right. No, as I said to you at the outset, I understand you may not have those instructions, but I said to you at the outset what I wanted as far as possible was a chronology of the facts.

PN40

MR DALTON: Yes.

PN41

THE DEPUTY PRESIDENT: And that is why I am asking the questions that I am asking. Obviously if you don't know the answer to them, you don't know the answer and we will explore them further in conference.

PN42

MR DALTON: Well I would like to address you on that because - - -

PN43

THE DEPUTY PRESIDENT: On what, Mr Dalton?

PN44

MR DALTON: On that particular matter because at the heart of this issue is, and you are aware of this site and previous cases where there has been, well applications such as this brought before the Commission.

PN45

THE DEPUTY PRESIDENT: Yes.

PN46

MR DALTON: At the heart of this matter is what we say is a tendency for the unions and the employees on that project to walk off the job where they are upset about matters and not to invoke the agreed and accepted procedures for resolving issues on site. Now, we bring application to deal with the industrial action. My instructions are we are not opposed at all to conciliation today, particularly given that it is Thursday and the resolution indicates there may well be a return to work tomorrow but the conciliation will deal with, the extent of our participation will be on the issue of return to work. We are not going to participate in a detailed discussion on the merits or otherwise of what happened, what led to the unions and the employees walking off the job because they had the issue. They should have brought this matter to the Commission and then we would have been talking about those issues.

PN47

THE DEPUTY PRESIDENT: Well look, Mr Dalton, you would be well aware that aside from prerequisite that must be met for the issue of any order, that the Commission has a discretion as to whether it issues an order. I may well see some of these issues as relevant. I am not sure that they are at this stage I am simply asking the question and to the extent that I do see them as relevant then I will hear from the parties about them. What you choose to do or not do in any conciliation that we might have is really a matter for you but at this stage I am simply trying to get it straight in my mind as to what happened. I am not making any judgments about that one way or the other.

PN48

MR DALTON: No. Well I am not suggesting that you are but often these types of applications can be abused in my respectful submission, because it almost rewards the type of behaviour that goes on. That is that if you crack it and just go out off the job and then the employer brings in the application and then you spend all afternoon talking about the issues that the union wants to talk about. So I just wanted to highlight it that - - -

PN49

THE DEPUTY PRESIDENT: Well that is fine and I can assure you, Mr Dalton, that I am as concerned as you are if there was illegitimate action taken and there wasn't compliance with procedures. I am more concerned in fact than perhaps I would be in other circumstances, because as you rightly say I have had some prior involvement with this site including some involvement with the actual finalisation of the agreements that apply on the site. So I do have a particular interest in ensuring that as far as possible those agreements are complied with.

PN50

MR DALTON: Yes. Well unless there are any other matters at this stage that is the brief summary of the facts. If the Commission pleases.

PN51

THE DEPUTY PRESIDENT: All right. Thanks, Mr Dalton. Mr Maddison?

PN52

MR MADDISON: Thank you, your Honour. Your Honour, I don't know too much about the underlying issues involved so Mr Dalton may at least get his way with us in conciliation in respect of dealing with the underlying issues. Your Honour, in respect of our union's involvement I have sought to find out what is going on since we got the application quite recently - - -

PN53

THE DEPUTY PRESIDENT: Just one question, Mr Maddison, on that. Are you, and this I guess is applied generally to your end of the bar table, do you take issue with the fact that there is industrial action happening at the moment?

PN54

MR MADDISON: It appears and I have no reason to doubt that there is.

PN55

THE DEPUTY PRESIDENT: Yes.

PN56

MR MADDISON: No employees working on the site at the moment. In relation to our union's involvement, our official who is responsible at the site is on leave until tomorrow.

PN57

THE DEPUTY PRESIDENT: Okay.

PN58

MR MADDISON: Mr Washington who may otherwise be involved is in Sydney. I have spoken briefly to Mr Washington who didn't know too much at all about the specific issue that led to this current application. I think we are happy to go into conciliation to see what can be done in relation to at least what has led or what the manifestation of the issue. Perhaps we can deal with the underlying issue either today or at some other stage.

PN59

THE DEPUTY PRESIDENT: All right. Good. Thanks, Mr Maddison.

PN60

MR MADDISON: Thank you, your Honour.

PN61

THE DEPUTY PRESIDENT: Mr Addison?

PN62

MR ADDISON: Yes your Honour, I am in a very similar position to Mr Maddison. I became aware of this matter at about 12 o'clock I believe. I made a quick phone call to Mr Sully who is our organiser in that area. Mr Sully knew there was something going on but didn't know any of the details at all.

PN63

THE DEPUTY PRESIDENT: You have not talked to Mr Webb?

PN64

MR ADDISON: Mr Webb, no I haven't. I know Mr Webb very well actually. I used to work with Mr Webb and I am more than happy to make a phone call to him if one of the management people can assist me with a mobile phone number or a contact number for him.

PN65

THE DEPUTY PRESIDENT: We can get that.

PN66

MR ADDISON: I am more than happy to do that but at this point in time, no I wasn't even aware of any of the issues until this was handed to me, the application was handed to me when I arrived, your Honour.

PN67

THE DEPUTY PRESIDENT: Yes. All right. Thank you.

PN68

MR COONEY: Your Honour, again there was talk of an amended application which I don't seem to have received. I have only got the version that I received at quarter to 12 today. I have spoken to Doug McCluss, the organiser there, he says there is something in order of two to six plumbers working there at any given time, though he did believe that work had ceased for the day today and we can't inform the Commission much more than that.

PN69

THE DEPUTY PRESIDENT: So you haven't seen anything. You haven't heard anything and you haven't said anything. It doesn't leave much for the fourth wise monkey does it, Mr Wood?

PN70

MR WOOD: Well the fourth wise monkey has had the opportunity to speak to the organiser there and he has in turn spoken to the company and spoken to the shop steward. It appears that the principal problem is in paragraph 4, at point 4 in the employer's application of grounds for seeking an order. The work does fall within this ….. application of the agreement. The contractors doing the work should have had an EBA consistent with clause 17 of our agreement.

PN71

THE DEPUTY PRESIDENT: Do you know who they are, Mr Wood?

PN72

MR WOOD: No I haven't been advised of that.

PN73

THE DEPUTY PRESIDENT: No. Right.

PN74

MR WOOD: The matter was raised with the company before industrial action has taken place. The company said it was out of their hands. There was, ….. investigator. What we thought should have happened was when the issue was raised consistent with the disputes procedure, work would have stopped because it was inconsistent with the agreement. The company didn't do that. They allowed the next day for work to continue and therefore that is why the members thought that there was no serious, that they thought their complaint wasn't being taken seriously and therefore went home.

PN75

THE DEPUTY PRESIDENT: Right.

PN76

MR WOOD: I am not suggesting that we are all angels in this, but I would have thought that any application that the employer brought would have had to have had some clean hands when they come here as well. There was a non compliant with the agreement. There was a complaint raised about that and they were told that there was nothing they could do about it but they would investigate it and the work continued the next time and we would say that was inconsistent with the disputes procedure as well.

PN77

THE DEPUTY PRESIDENT: Right.

PN78

MR WOOD: But we are happy for conciliation.

PN79

THE DEPUTY PRESIDENT: Okay. Thanks, Mr Wood. Anything in response to any of that, Mr Dalton?

PN80

MR DALTON: No your Honour.

PN81

THE DEPUTY PRESIDENT: Right. What about you, Mr Ogilvie?

PN82

MR OGILVIE: No your Honour.

PN83

THE DEPUTY PRESIDENT: Right. I will go off the record thank you.

<SHORT ADJOURNMENT [2.30PM]
<RESUMED [3.15PM]

PN84

THE DEPUTY PRESIDENT: Yes we have had what I think and hope were some fruitful discussions in conference. The resolution of the unions in this matter was to the effect that there be a return to work as normal with effect from starting time tomorrow morning being Friday morning. The Commission, like the employer parties, is anxious to ensure that such a return to work occurs and to that end I might ask you, Mr Maddison, to indicate to the Commission what you are prepared to do in that cause.

PN85

MR MADDISON: Yes. Thank you, your Honour. Your Honour, what we say without making any concessions as to any past conduct and firstly, personally undertake to contact the local organiser to pass on what has come out of the proceedings this afternoon. And they are that the unions for our part through the local organiser, the shop stewards, will on the basis of what has been said today, will recommend that a return to work as of starting time tomorrow, Friday your Honour and further we do, we have foreshadowed that there is a couple of other issues that we are keen to take up with the company which we will do through the local representatives and the appropriate company personnel and we will seek to resolve them through the dispute resolution procedure up to and including the Commission if required.

PN86

THE DEPUTY PRESIDENT: Yes.

PN87

MR MADDISON: We thank your Honour for your assistance again this afternoon.

PN88

THE DEPUTY PRESIDENT: Good. Thanks, Mr Maddison. Mr Addison?

PN89

MR ADDISON: I have nothing to add, your Honour, I just simply concur.

PN90

THE DEPUTY PRESIDENT: Yes.

PN91

MR COONEY: Likewise your Honour, we agree with what was put by Mr Addison.

PN92

THE DEPUTY PRESIDENT: Thank you.

PN93

MR WOOD: On behalf of the AWU we would concur with what was put.

PN94

THE DEPUTY PRESIDENT: Yes. Thank you. Mr Dalton?

PN95

MR DALTON: Your Honour, on that basis we would ask that this application be adjourned until a date to be fixed subject to leave to apply at short notice in the event that that is necessary.

PN96

THE DEPUTY PRESIDENT: Yes. Thanks, Mr Dalton. Mr Ogilvie?

PN97

MR OGILVIE: Nothing further your Honour.

PN98

THE DEPUTY PRESIDENT: No. Thank you. Look, just for the Commission's part I just want it to be put on the record that I acknowledge that there are very often times when employees at site have what are legitimate issues and legitimate complaints as to things that are occurring on the site. This may well have been one of those occasions. What I do want to say though is that there are means by which those complaints can be addressed and that is the whole purpose for having disputes procedures in agreement and the expectation of this Commission is that those disputes procedures in agreements will be complied with.

PN99

To the extent that they are not and to some extent regardless of the legitimacy of the beefs that the union might have, then the Commission will take action accordingly to remedy that action by the union when it is in breach of those procedures. On that basis I think we can adjourn and I will, at least in the short term, hold this file open on the basis put forward to me by Mr Dalton. The matter is adjourned.

<ADJOURNED INDEFINITELY [3.19PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #A1 COPY OF DIARY NOTE PN29