|
|
Home
| Databases
| WorldLII
| Search
| Feedback
Australian Industrial Relations Commission Transcripts |
TRANSCRIPT OF PROCEEDINGS
Workplace Relations Act 1996 12757-1
DEPUTY PRESIDENT MCCARTHY
C2005/1229
UNITED KG PTY LTD
AND
AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED
INDUSTRIES UNION-WESTERN AUSTRALIAN BRANCH
s.127(2) - Appln to stop or prevent industrial action
(C2005/1229)
PERTH
11.36AM, WEDNESDAY, 07 SEPTEMBER 2005
PN1
MR M C BORLASE: I appear on behalf of the applicant in this matter. Your Honour, I also asked your associate to pass on my apologies for the casual attire. It’s not meant as a mark of disrespect, it’s my last day of the chamber and I hadn’t expected to be here today.
PN2
THE DEPUTY PRESIDENT: What if I said I didn’t notice the difference, Mr Borlase? Would that offend you?
PN3
MR BORLASE: No, sir, just maybe just a suggestion to visit your optometrist.
PN4
MR D C MCLANE: If it pleases the Commission, I appear on behalf of the AMWU.
PN5
THE DEPUTY PRESIDENT: Thank you. Yes, Mr Borlase?
PN6
MR BORLASE: Thank you, your Honour. Your Honour, this is an application for orders pursuant to section 127 of the Act. As the application outlines, United KG is an employer of labour at the Alcoa World Alumina Australia Pty Ltd, Kwinana Alumina Refinery site. They have a couple of different projects that they are working on at that site, being the liquor burner project and the Calciner KW6 upgrade. The calciner KW6 upgrade is due for completion this Friday. The liquor burner project has a slightly longer period, going through until December.
PN7
The application outlines that industrial action commenced on Tuesday, 6 September, following a meeting that was conducted by Mr Joel Asphar, union organiser of the AMWU, and following that, industrial action commenced. There was a further meeting this morning, I am instructed, and industrial action continues as a result of that meeting. That meeting, I am instructed, was attended by Mr Steve McCartney and Mark Goldsworthy. As a result of that particular meeting, industrial action is to continue through until at least Monday, 12 September.
PN8
The requirements for section 127 of the Act for the purposes of achieving an order are that there be industrial action occurring, threatened, impending or probable in relation to either an industrial dispute, negotiations of a proposed agreement, or work that is regulated by an award or a certified agreement. Sir, we say that the ground which is existing before you today for the purposes of section 127(1) of the Act is that this work is regulated by the agreement which is noted in the application, being the United KG Pty Ltd Alcoa Local Service Contracts and Associated Projects Certified Agreement 2003.
PN9
That is an agreement that the respondent union in this matter is also respondent to and one which they would be fully aware of. Your Honour, I’d intend to call evidence to support our position that industrial action is happening, that the reasons for the industrial action are matters which are not matters that the applicant company has any control over, and that the industrial action is totally unwarranted and doesn’t fall within any form of protected industrial action. Firstly, I’d call Mr Peter Foolkes.
PN10
THE DEPUTY PRESIDENT: Yes. Just before you do, Mr Borlase, Mr McLane, do you wish to say anything at this point?
PN11
MR MCLANE: No, I don’t, sir. Other than to say that I’ll certainly be calling two witnesses and possibly three. I’ll just tip my friend off, I suppose, that they’re present, as his witnesses are.
PN12
THE DEPUTY PRESIDENT: Yes. Thank you. Yes, Mr Borlase?
PN13
MR BORLASE: Your Honour, on that basis it may be appropriate that any witnesses be asked to vacate the courtroom while evidence is being given.
PN14
THE DEPUTY PRESIDENT: You have any objection to that, Mr McLane?
PN15
MR MCLANE: No, I don’t, sir.
PN16
THE DEPUTY PRESIDENT: I rely on the representatives and the advocates to ensure that any witnesses that they are intending to call are excluded from the precincts of this hearing and that they not discuss their evidence, other than of course for the purpose of any instructions or briefings that the advocates themselves might need in discussing the evidence or potential evidence with those persons. So I order that persons intending to be giving evidence be excluded. Yes, Mr Borlase?
PN17
MR MCLANE: Sorry, sir, to the extent I may need to take some instructions from Mr McCartney, who will be one of the witnesses.
PN18
THE DEPUTY PRESIDENT: If you’re receiving instructions from somebody, even though they may be intending to give evidence, ordinarily those persons would not be excluded. Do you have a view about that, Mr Borlase?
PN19
MR BORLASE: No, I’m comfortable with Mr McCartney remaining, sir.
PN20
THE DEPUTY PRESIDENT: Witnesses are excluded, with the exception of those giving instructions. Thank you.
MR BORLASE: Thank you, your Honour. I call Mr Peter Foolkes.
<PETER ROBERT FOOLKES, SWORN [11.43AM]
<EXAMINATION-IN-CHIEF BY MR BORLASE
PN22
MR BORLASE: Thank you, Mr Foolkes. For the record, could you please provide your full name and address?---It’s Peter Robert Foolkes (address supplied).
PN23
Who is your employer?---United KG.
PN24
What role are you employed in?---I’m a shutdown supervisor on the Calciner Alliance.
PN25
Whereabouts is that work being conducted?---At the moment it’s being conducted at Alcoa Kwinana, on the alumina refinery.
PN26
How long have you been employed by United KG?---8 and a half years.
PN27
Yes, thank you. Can you briefly describe what that project involves?---The upgrade that we’ve just done on Calciner 6 was a maintenance upgrade of refractory lined steel vessels. We remove the old vessels, replace with new vessels. Had associated pipe work, structural steel flooring and rails. Platforms, et cetera.
PN28
What type of employees do you employ on that project?---We have a number of different applications on site. A lot of rigging, lot of welding, boilermaking, general TA work as well.
PN29
Are you aware what form of agreement that you employ those people under?
---They’re employed under the EBA, I believe, that has been devised between United KG and the apparent union.
PN30
Are you aware if that’s the United KG Alcoa Local Service Contract and Associated Projects Certified Agreement?---Yes, it is.
PN31
Are you aware whether or not those employees are members of the union?---I believe the majority of those people are members of the union.
PN32
In terms of those employees, are they currently working?---Yes, they are - on site today, no.
PN33
Yes, on site today?---No.
**** PETER ROBERT FOOLKES XN MR BORLASE
PN34
No? Are you aware of the meeting that took place on Tuesday, 6 September?
---Yes.
PN35
Do you know who attended that meeting?---All of my members and employees in the calciner group attended that meeting.
PN36
Are you aware whether or not anybody from the respondent union attended the meeting?---From my understanding there was, yes.
PN37
How did you receive that understanding?---My shop steward, Basil Carbonara, informed me at the close of the meeting on the outcome of the meeting, and informed me the details of what had happened.
PN38
What did he tell you that the outcome of the meeting was?---He had said they were going home for a 24-hour stoppage, with the possibility of a return to work this morning, and from the information he gave me and the information he understood, it was to do with ABIGroup and the implementation of workplace agreements on their employees.
PN39
Is ABIGroup another employer at the Alcoa site?---Yes, it is.
PN40
Are you aware of any control that United KG may have over ABIGroup - - -?
---No.
PN41
- - - or ABIGroup’s employees?---No, no.
PN42
Sorry, you’re not aware, or you don’t have any control?---Well, I would say they don’t have any control.
PN43
Did you work in conjunction with ABIGroup?---No.
PN44
Are there any other contractors that are on site that you work in conjunction with?---TCC and Westerns.
PN45
Can you give the Commission the full name of those companies?---TCC Group and Western Construction.
PN46
Are you aware whether or not those employees are working today?---My understanding is they are not at work today.
**** PETER ROBERT FOOLKES XN MR BORLASE
PN47
What is that understanding based on?---From the meeting that happened yesterday, the same understanding that my shop steward has passed on to me, and from the meeting they had today.
PN48
Are you aware whether the employees of those other two companies attended that meeting?---Employees of both those companies? Yes, they did, I believe.
PN49
Yes, okay. In terms of the current work that you are performing, when is that due to complete?---It was due to be completed at the end of this week, which would be Friday.
PN50
Will this industrial action delay that?---Yes.
PN51
Will that cause any difficulties for either United KG or your client?---It will for Alcoa, for access to their unit, yes.
PN52
So effectively does that mean that Alcoa will not be able to access that unit?
---Yes.
PN53
And produce from that unit?---Yes, in areas of that unit, yes. They’re having trouble getting to it. We don’t have the sufficient platforms in place for them to access their probes and instrumentation and such.
PN54
Are you aware as to whether or not there has been any other previous industrial action by the employees on that project of United KG?---Yes. Earlier in the year there was action on site in regard to the ABIGroup situation again, I believe.
PN55
Do you know approximately when that occurred?---April, I believe.
PN56
Right. Now, you indicated that nobody, or no employees of United KG, are at work today on the calciner project. How do you know that?---No one turned up. I also received a notification from the end of today’s meeting informing me that there was stop work until Monday morning. I wouldn’t have anybody on site for that duration.
PN57
Were the reasons for that stoppage communicated to you?---They were. My understanding was there was a couple of issues. There was the issue of the ABIGroup situation again, there was the mention of possible scaffolding work that had been done by supervision from TCC, and there was also the talk of higher rates being paid for the liquor burning project.
**** PETER ROBERT FOOLKES XN MR BORLASE
PN58
Okay. The ABIGroup issue and the TCC issue and the liquor burner project issue, are they anything to do with the employees that you have working on the calciner?---No.
PN59
No? Okay. Are you aware of any other approaches from the union to try and settle any of these issues with United KG?---Me personally, no.
PN60
Were issues raised in accordance with the dispute resolution procedure in the agreement by employees with you?---Not with my guys, no.
PN61
Are you aware what any financial impact might be on either United KG or Alcoa as a result of the delay in the calciner - - -?---We - obviously we need to finish this job. We’ve got another upcoming shutdown in Wagerup that will commence later on in this month. We need to be out of Kwinana and be down in Wagerup and be prepared for that shutdown. With the stoppages that we’re having at the moment, will have an influence on that.
PN62
Does that mean that there’s a delay and an impact in terms of this current
one - - - ?---Yes.
PN63
- - - and potentially the future as well?---Yes. It’s a roll-on effect.
PN64
In terms of the information that you were told of the outcome of the meeting this morning, who was it who informed you?---It was one of my workers by the name of Tim Buxton.
PN65
What did he tell you?---He said that at this stage, there was no work until Monday morning. I then asked him the reasons for, and he had gone through the previous three that we discussed, the ABIGroup, the scaffolding and the higher rate of pay.
PN66
Are you aware whether or not there were any officials of the respondent union at that meeting?---I believe so, yes.
PN67
Why do you believe that?---From the information that that gentleman passed to me.
PN68
Do you know who they were?---I believe it was Steve McCartney, I believe Joe Asphar and Mark Goldsworthy.
**** PETER ROBERT FOOLKES XN MR BORLASE
PN69
Thank you. I have no further questions.
PN70
THE DEPUTY PRESIDENT: Thank you. Mr McLane?
MR MCLANE: Thank you, sir. I just need half a second, sir, if I can, just to get some really brief instructions.
<CROSS-EXAMINATION BY MR MCLANE [11.52AM]
PN72
MR MCLANE: Mr Foolkes, if I can just take you to - were you present at today’s meeting?---No, I wasn’t.
PN73
Were you able to observe today’s meeting?---No, I wasn’t.
PN74
What about the meeting on the Tuesday?---No, I wasn’t.
PN75
Mr Borlase asked you about previous industrial action?---Mm mm.
PN76
You said that there was some in April?---I believe it was April, yes.
PN77
Were you on site - have you been on site over the last 2 to 3 weeks?---Yes, I have.
PN78
Are you aware of industrial action taking place in relation to TCC during that period of time?---Yes, I am. Yes. Sorry, yes.
PN79
Do you recall what that was about?---I believe there was an issue with somebody who had been - moved sites or something like that. Very, very sketchy information.
PN80
Do you recall anything more about it? Do you recall it being in relation to TCC supervisors carrying out scaffolding work? Does that ring any bells?---That was something that come up after the initial phase of action.
PN81
Right, and did that - do you recall whether that gave rise to any further industrial action?---As in what happened to the first meeting to the length of time they stayed on strike, to whether that actually added to it, I’m not 100 per cent sure.
PN82
What’s your recollection?---I’m not sure. I was in the middle of a shutdown at the time, so - that was rather irrelevant to where I was and what we were doing. My employees at that time were still on site, so it was a matter that I believe was internal to TCC and really didn’t have any real relevance to me.
**** PETER ROBERT FOOLKES XXN MR MCLANE
PN83
Why didn’t you recall that issue when Mr Borlase put the question to you?---I totally didn’t even think of it, because as I said, it was an issue in TCC, not an issue with myself and UKG. I’m more sort of concerned or thought Mr Borlase was talking mainly if it affected my project.
PN84
Now, you gave three reasons as to why the action - what had been reported to you, sorry, as to why the action was continuing today?---Yes.
PN85
That was the ABIGroup?---Yes.
PN86
The scaffolding?---Yes.
PN87
I assume by that you mean the scaffolding that was done by TCC supervisors?---I believe that’s it, yes.
PN88
Was that while the initial strike was on in relation to the ABIGroup?---I believe the initial strike action that was taken yesterday was primarily for the ABIGroup, yes.
PN89
And the scaffolders was the issue that precipitated it?---I believe it was one of the reasons that added to today’s discussions, obviously.
PN90
Mr Tim Buxton, is he an official of the union?---No, he’s not. The official that is - well, the representation for the guys, Basil Carbonara, he was at yesterday’s meeting, he had had today and tomorrow off, his father is ill so there was no real union representation for the guys, so Tim had let me know.
PN91
You’re quite certain that he said there were three matters, not one?---From - yes, from what he said, yes. Whether it was a continuation of yesterday’s meeting, on that I’m 100 per cent sure.
PN92
I need to put it directly to you because the evidence that I’ll be leading is that the issue today was only this scaffolding work?---Okay. Okay. My understanding is the ABIGroup issue is an ongoing issue and I believe my guys believe it’s an ongoing issue as well. Whether today was singled out as one issue, I’m not 100 per cent sure.
PN93
I also need to put to you that I’ll be leading evidence that the Abbey issue resolved itself?---Okay. That’s - as I said, my guys were unaware of exactly what’s sort of going on. Over the last couple of days - - -
**** PETER ROBERT FOOLKES XXN MR MCLANE
PN94
How do you know what your guys are aware of or not aware of?---I only sort of go off what they - they feed to me, and their understanding over a few issues over the last couple of weeks has been very sketchy because we don’t have direct involvement in a lot of the issues.
PN95
But it’s clear enough that it’s about three issues today?---Yes, and that - that was his understanding. I didn’t communicate with any other guys from the crew.
PN96
And is it also true that Mr Buxton informed you that there were three officials of the union present today?---Yes, yes.
PN97
McCartney, Asphar and Goldsworthy?---Yes.
PN98
You gave evidence that the issues were - I’m sorry.
PN99
Just two seconds, sir, if I could? Sir, I have no further cross-examination.
THE DEPUTY PRESIDENT: Thank you. Just a moment, Mr Foolkes, you can’t escape yet.
<RE-EXAMINATION BY MR BORLASE [11.58AM]
PN101
MR BORLASE: There’s just one question, Mr Foolkes. Are you aware as to whether Mr Tim Buxton, did he inform you that he attended the meeting this morning?---Yes.
PN102
No further questions, thank you.
THE DEPUTY PRESIDENT: You’re excused now.
<THE WITNESS WITHDREW [11.58AM]
MR BORLASE: I call Giuseppe Fitti.
<GIUSEPPE FITTI, SWORN [11.59AM]
<EXAMINATION-IN-CHIEF BY MR BORLASE
PN105
MR BORLASE: Thank you, Mr Fitti. For the record, could you please provide the Commission with your full name and address?---It’s Giuseppe Fitti (address supplied).
PN106
Who is your employer?---United KG.
PN107
What role are you employed in by United KG?---I’m the operations superintendent for the liquor burner project.
PN108
And where is that liquor burner project located?---In the Alcoa Kwinana site.
PN109
How long have you been employed by United KG?---Just under 20 years.
PN110
Can you give a brief description of what the liquor burner project is?---Yes. It’s a new building we’re putting up alongside an existing kiln. In there, we’re going to house two critical bits of equipment, an RTO unit which is - basically cleans the emissions from the stack, and a new dust collection system on top of the building.
PN111
What are your responsibilities on that project?---I’m responsible for all the labour, plant equipment, basically everything, and I report to the project manager.
PN112
Is the project manager a United KG person or is he - - -?---Yes, he is.
PN113
Approximately how many other people do you have employed on that project?
---Employees on the ground, there’s only 11 at present. We’re slowly ramping up.
PN114
What types of classifications of employees are those?---Riggers, storemen, couple boilermakers.
PN115
Do you know if there’s any industrial instrument that you employ those people under?---The local EBA.
PN116
Is that the United KG Pty Ltd Alcoa Local Services Contracts and Associated Projects Certified Agreement?---That’s correct.
PN117
Of those approximate 11 employees, are they currently working today?---No.
**** GIUSEPPE FITTI XN MR BORLASE
PN118
No? Okay. Do you know why they’re not working?---Yes. They’re out on - out on strike until Monday morning.
PN119
When did those employees first go on strike?---Yesterday morning they had a meeting at 7 am and then they went out for 24 hours.
PN120
Do you know who attended that meeting?---From my employees?
PN121
Yes?---I believe the whole lot.
PN122
Are you aware whether or not any officials of the respondent union attended that meeting?---The only feedback I received, that there was a person named Joel running the meeting. I don’t know his surname.
PN123
Who told you that?---A couple of guys of the crew.
PN124
A couple of guys? Are they employees of - - -?---Yes, employees.
PN125
And they’re employees of United KG?---Yes.
PN126
Are you aware whether or not those employees attended the meeting?---What, they did attend the meeting?
PN127
Yes?---Yes.
PN128
Okay. What did they tell you occurred at that meeting?---Yesterday morning’s meeting?
PN129
Yes?---Basically the main discussion was around ABIGroup and the workplace agreements. That people weren’t satisfied with that company trying to impose agreements on the workers, and they were going out as a sign of protest against that.
PN130
You indicated that employees are not at work today. When did you become aware that they weren’t attending work today?---It was after eight when some of the guys came back and said that they were out until Monday.
PN131
They came back from where?---From a mass meeting at the contractors’ car park.
**** GIUSEPPE FITTI XN MR BORLASE
PN132
Are you aware whether or not your employees attended that mass meeting?
---They all attended bar two. I know one guy rang in sick and the other guy was a no-show, so - - -
PN133
Who reported back to you after that meeting?---This morning’s meeting, there was a person named Bill Finn who basically is a spokesperson for the crews, not the elected union rep, and - - -
PN134
And what did he tell you?---There was three items that the guys were going out for. One is that TCC management had built scaffolds on site yesterday while they were out on strike, and that wasn’t on. The other one was with the ABIGroup issues and the third item is that they were going to be looking at getting higher rates of pay for the project they’re on.
PN135
All right. Now, when is that project due for completion?---Practical completion is 16 December and - - -
PN136
Of? Of this year?---This year, and then the building, the cladding and bits and bods probably be the end of January 2006.
PN137
In terms of those three items that were reported back to you, are they - particularly the first two items - were they items that United KG have any control over?---No. Scaffolding work, not at all, and what ABIGroup does, no, we don’t.
PN138
Are you aware whether or not there are other contractors’ employees that are on the site that are engaging in industrial action as well, yesterday and today?---The ones that I’m aware of is TCC and Western Construction.
PN139
In terms of this industrial action, can you tell the Commission what the effect of the action is, either directly on United KG or any other company that you’re working in conjunction with, with respect to that project?---Yes, I can. Basically, the location as a project is in a very confined area, so everything logistically has to be coordinated with numerous companies. So the impact of yesterday and especially today was on, for instance, Boon Logistics, who supply all our cranage. HPS is a company that’s supplying heavy equipment that we had especially brought in yesterday and today was stopped, that involved police escorts, Main Roads permits, Western Power to lift lines and so forth, so it was a number of companies affected that way.
**** GIUSEPPE FITTI XN MR BORLASE
PN140
Can you just go into a little bit more detail with respect to that? You said that HPS was affected yesterday. Did they have to arrange police escorts and Western Power for power lifting and Main Roads - - -?---It takes 2 weeks to get all those permits in place and basically yesterday and today were the only two days that we can move this gear to site. It’s the only window we have. The problem with HPS is the load that came yesterday needed to be offloaded so they can take the truck and low-loaders back for the second piece.
PN141
Was it offloaded?---No.
PN142
No?---We couldn’t offload it.
PN143
Sorry, can you continue?---And those particular low-loaders, they’re heavy duty things and they were booked to go interstate from tomorrow on other projects, so it’s thrown quite a few things into turmoil.
PN144
Now, you also mentioned the Boon crane - I beg your pardon. No, you mentioned Boon Cranes?---Yes.
PN145
What is the effect there?---The effect there is we’ve got three wet-hire cranes. That means, with drivers, in use and we’ve contracted them for a number of weeks and Boon’s are going to hit us with a 70 per cent stand down rate for their cranes for 8 hours unless they can relocate, which they weren’t able to yesterday. Plus there’s a 250-tonne crane working for Alcoa which finishes today and that was supposed to move over and offload these heavy lifts yesterday and today and we can’t get that crane for tomorrow so they’re going to pack up tonight and leave. So - - -
PN146
Will that cause further delays for your project and costs for your project?---It will, because that size crane just doesn’t sit around doing nothing every day. We’re going to have to try and source it from another company if possible.
PN147
Are there any other companies that are affected by this industrial action, in terms of delivery of products?---Well, you’ve HPS, Toll West.
PN148
What’s the effect in terms of Toll West?---Well, yesterday we had to turn two trucks around, they’re fully laden, so they left the trailers in their yard at Welshpool so they’ll - - -
**** GIUSEPPE FITTI XN MR BORLASE
PN149
Is there a cost associated with leaving those loaded trailers at Welshpool?---Yes, there is. And this morning, because we believed there was going to be just a feedback session, the trucks actually were on site, where we’ve had to turn around and send them back out again. So today we’re paying for the drivers, trucks, the whole lot.
PN150
Okay?---There’s also the electrical arm of Western Joint Venture. This job is - we’ve got to erect our steelwork ahead of them, so as we get a level up, they’re following us, so it will impact on their schedule as well.
PN151
All right. Has there been any steps, that you are aware of, by either the employees or the union, to try and resolve these issues through the dispute resolution procedure under the agreement with either yourself or with the company?---Not for this particular case, no.
PN152
Are you aware as to any other effects on the employees that you have, in terms of getting them back to work?---Yes. There’s a number of guys that came off the Pinjarra site because basically they didn’t want to be involved in industrial action, financial hardship, and a couple of the guys actually went onsite and grabbed their toolkits, so I don’t know if they’ll be back or not. But there will be impact.
PN153
If those employees don’t return to work for you, does that cause a difficulty for you in terms of the project?---Well, I have to get replacements and by the time they go through all the inductions and all the rest, it does, yes.
PN154
How easy is it at the moment to get new employees at the skill level that you require?---I’m mainly asking for advanced riggers with steel erection and heavy lift experience. There’s not many of those sitting at home waiting for a job.
PN155
Okay. Have you been advised whether there is a definite return to work going to occur?---The feedback I got was they were going to return to work - back on work Monday morning, 7 am, and then there was going to be a meeting, but he wasn’t sure if it was with union reps or possibly another - they weren’t sure.
PN156
Weren’t sure? Thank you very much. I have no further questions.
**** GIUSEPPE FITTI XN MR BORLASE
PN157
THE DEPUTY PRESIDENT: Yes, Mr McLane?
<CROSS-EXAMINATION BY MR MCLANE [12.12PM]
PN158
MR MCLANE: Mr Fitti, did you become aware yesterday that TCC management were carrying out scaffolding work?---No.
PN159
When did you first become aware of that?---That was Bill Finn told me this morning when the guys told me they were going out. That’s when I became aware of that.
PN160
Are you aware of the dispute involving TCC that occurred a couple of weeks ago on the site?---No.
PN161
Were you on the site a couple of weeks ago?---I was on and off preparing for this project, so I didn’t have a crew. I wasn’t site-based.
PN162
So you’re unaware that there was a strike involving TCC 2 to 3 weeks ago, onsite?---I heard a rumour, but I wasn’t here at the time - I wasn’t there at the time.
PN163
All right. I just want to ask you a couple of questions in relation to the meeting before the 24-hour strike that occurred on Tuesday, the 7th - sorry, Tuesday, the 6th. Was it your evidence that that was a protest?---That’s - well, that’s the word Bill used.
PN164
A protest stoppage in relation to the ABIGroup?---Yes.
PN165
Did I hear you correctly when you said that you were advised that the meeting this morning was simply going to be a feedback?---That’s right.
PN166
And by that, is it fair to say that you expected that there would be a return to work this morning?---Yes, I did expect that.
PN167
Over the 20 years that you’ve been with United, I take it a fair amount of that time has been on constructions sites?---A few, yes.
PN168
Yes. In your experience, would it be unusual in a situation where management have carried out scaffolding or work while there’s a strike in place? In your experience, is that likely to precipitate a further strike?---In the past, yes, it has. I’m aware of that, and I know the only times that would occur if there was a genuine safety issue, and even then it’d be in consultation with the crews. That’s - that’s in the past.
**** GIUSEPPE FITTI XXN MR MCLANE
PN169
So is it your evidence, then, that it’s unusual that industrial action occurs because management have carried out the work of striking union members in the industry?---Well, it’s unusual that management do the job, yes.
PN170
Would do it?---Do the job, yes.
PN171
Okay, sorry?---That’s what I’m saying.
PN172
Thank you, I understand. Now, I just want to take you to the result, I accept it’s unusual; given your experience in the industry, what usually happens when such a thing occurs?---I can’t base it on my personal experience, I’ve only heard other companies go out, and the most recent experience was down, as in Pinjarra, where someone - - -
PN173
MR BORLASE: Your Honour, the witness has already indicated he’s got no personal experience to offer, so the evidence should be at that point.
PN174
MR MCLANE: Would you be surprised if union members’ work being carried out by management on a construction site precipitated a further strike, in your experience?---I wouldn’t be surprised.
PN175
Thank you. If I could just take 2 minutes if I could, sir, just to take some instructions? Thank you, sir. I have no further cross-examination for Mr Fitti. Thank you.
THE DEPUTY PRESIDENT: Mr Borlase?
<RE-EXAMINATION BY MR BORLASE [12.17PM]
PN177
MR BORLASE: Mr Fitti, your evidence was that you don’t actually have any personal experience of a further strike being caused where managers have gone and done work, wasn’t it?---When I’m saying personal, I’m talking about sites that I’ve been on, under UKG. I know of other companies that that has resulted in that. That’s why I have a policy, I contact the union if there’s a safety issue, first and make sure they - everything’s above board.
PN178
Were there any United KG employees, management, supervisors, who performed work during the last 2 days?---No.
PN179
No? I have no further questions, your Honour.
**** GIUSEPPE FITTI RXN MR BORLASE
PN180
THE DEPUTY PRESIDENT: Yes. You’re excused.
<THE WITNESS WITHDREW [12.18PM]
PN181
THE DEPUTY PRESIDENT: Yes, Mr Borlase?
PN182
MR BORLASE: Your Honour, that’s the evidence in respect to this matter. I’ll leave it in your hands in terms of whether or not you wish the union to call their evidence and then call for closing submissions subsequent to that, or alternatively, I can go straight to submissions.
PN183
THE DEPUTY PRESIDENT: We’ll hear evidence from the union, should they wish to produce any. Yes, Mr McLane?
MR MCLANE: Yes, I do, sir. I’d like to call Mr Steve McCartney.
<STEPHEN JAMES MCCARTNEY, AFFIRMED [12.19PM]
<EXAMINATION-IN-CHIEF BY MR MCLANE
PN185
MR MCLANE: If you’d just state your full name and address and occupation for the Commission’s records?---Stephen James McCartney (address supplied) an organiser for the Australian Manufacturing Workers Union.
PN186
How long have you held that position?---Since year 2000.
PN187
Prior to that, have you been involved in construction?---Yes.
PN188
How many years’ experience do you have in and around construction?---In and around, about 13 or so years.
PN189
Do you have responsibilities for this site and the work that’s occurring there?
---Indirectly, I do. I was filling in for the organiser that does have responsibility for the site.
PN190
Who is that?---Mark Goldsworthy.
PN191
Were you present at a meeting at the Kwinana site on Tuesday the 6th?---I wasn’t actually - I didn’t actually attend the meeting on the 6th. I was at the start of the meeting and then I had to leave to go to Kemberton Power Station.
PN192
All right. Were you there long enough to know what the issues were at that meeting?---I understand that the reason we had that meeting was report-back, which was driven from the meeting previous where it was discussed with the workforce about the Australian Workplace Agreements, and that meeting was generated from a previous meeting where the membership called, if ABIGroup were to put individual work contracts or an Alcoa agreement on the site, to call a metalworkers meeting and instruct or inform the membership that that was going to happen.
PN193
Now, did you have any involvement in those prior meetings?---Yes, I did.
PN194
Have you had any discussions with the ABIGroup in relation to the issues in the past?---I’ve had some minor discussion. The majority of the discussion’s been on the shoulders of Mark Goldsworthy and also Colin Saunders.
PN195
Now, you said it was a report-back on the Tuesday?---Yes, it was.
**** STEPHEN JAMES MCCARTNEY XN MR MCLANE
PN196
This week; and were you reporting back just to the members at United KG or were you reporting back to other members?---No, the report-back was to the metalworkers in the construction - the construction metalworkers for Alcoa Kwinana.
PN197
How many, roughly?---Roughly, I would say about 130-odd at the meeting.
PN198
And roughly how many employers?---How many?
PN199
How many employers of - - -?---How many different companies?
PN200
Yes?---There was TCC, United KG’s, ABISimons. I’m trying to think of the little mob. AMEC. And Western Construction I think were the main ones.
PN201
The position in relation to AWAs and the Alcoa agreements, was that a position of the membership collectively, or is it just the position
of the membership of ABI?
---Well, we were driven - originally - the original meeting was driven by a previous meeting and the resolution in the previous meeting
was if - and that was some time before that, if ABIGroup were to put another non-union agreement on the site, to call a meeting to
inform the membership.
PN202
All right, and that was a collective position, was it, or - - -?---That was a collective position by the metalworkers - the metalworker contractors at Alcoa.
PN203
Across the contracts?---Yes.
PN204
Were you at the meeting on Tuesday long enough to know what the outcome was at that time?---I was in a position to - the meeting on the 6th, was a position to report back the progress of discussions between the union and the ABIGroup.
PN205
Were you there long enough - and I’m not talking about your knowledge now, I’m talking about your knowledge on that Tuesday - to know how the resolution was framed?---I’m not. No.
PN206
Have you heard evidence today about it being in the form of a protest?---Well, that was the - that was my understanding as reported back to me, that it was a protest, a 24-hour protest on the ABIGroup.
PN207
When did you become aware of that?---That was after the meeting had finished.
**** STEPHEN JAMES MCCARTNEY XN MR MCLANE
PN208
How did you become aware of that?---Talking with Joel. Joel Asphar, sorry.
PN209
All right. So is it your evidence that he reported that to you?---He reported that back to me.
PN210
When resolutions are framed like that, what’s usually the outcome at the end of the period of protest?---It was - it was a report-back, with a view to go back to work.
PN211
What usually happens?---What usually happens is you report back the progress and people return back to work.
PN212
How does a resolution that’s framed as a protest resolution differ from one that might be a demand for a certain thing to happen?---Well, if people are protesting about the company’s particular attitude on the job, they’re not actually requesting something to happen at the end of a resolution.
PN213
Did you attend the meeting there today?---Yes, I did.
PN214
Why wasn’t there a return to work today, as you’d expected?---We expected to report back to the meeting this morning that there was some progress with the ABIGroup, which there has been, and we’ve got a draft document for their perusal. That was the first part of the meeting, was to report that back. The second part of that meeting was an information meeting to membership over questions arose about the payment in and around the liquor burning project and we said that there was a draft proposal to put to the delegates and structured a strategy for the delegates to have a discussion about that particular paper and the third item, which was the item that generated the dispute - - -
PN215
What’s that?---Was that TCC management erecting scaffolding the day before. I was informed by the deputy convenor of Alcoa metalworkers on the Alcoa site, and yes, to protest to us about TCC building scaffolding on the site while the guys were off the site.
PN216
When were you informed of that, what time?---Approximately 4 o’clock yesterday afternoon.
PN217
Right?---Approximately.
**** STEPHEN JAMES MCCARTNEY XN MR MCLANE
PN218
Have you had any involvement in a previous issue relating to TCC carrying out similar work in similar circumstances in the last few weeks or not?---I haven’t been involved. I wasn’t involved in that dispute, no.
PN219
What flashed into your mind when you received the call from the Alcoa metalworkers’ representative yesterday afternoon?---I - when I was informed of TCC, I was actually working on instructions. Kim Burton instructed me to contact TCC management. I contact - I tried to contact Darren Ianello a couple of times. I eventually had a discussion with him later on in the evening about what was going on and my role was to talk to TCC to - about that, ask them to stop doing that scaffolding work and to report back to Kim Burton of Alcoa.
PN220
What did you think the effect of that would have been on today’s meeting?
---Well, I knew that this was a issue, a previous issue that had been dealt with before. The membership made that very clear to us
at the meeting today. And I knew that they would have been upset at the fact, because traditionally that work is reserved for the
guys that do the job and I think - and in the past on that job, if there has been emergency work that needs to be done, the - what
the usual procedure is, is the company talks to the union, we talk to the delegates and we get a working party together to do whatever
that safety or environmental issue was.
PN221
I see. You wouldn’t take any issue with the evidence you heard from Mr Fitti that that’s what’s normal?---No. No, that’s the norm.
PN222
Now, has that happened on this particular site?---No, it didn’t. And it didn’t in this occasion. It’s happened on that site before.
PN223
Involving the same employers?---The same employers. Also with Western Construction. From time to time, they’ve asked us if we could have - if they could have people for special reasons and we’ve made sure that that’s happened.
PN224
When did it last happen?---I think the last time that that discussion was had was a few months ago when the ABI - there was a protest over the ABIGroup, when they put Alcoa agreements on the site.
PN225
So would you concur with Mr Fitti’s evidence that that’s how it happens in the industry?---That’s normally how it works, yes.
**** STEPHEN JAMES MCCARTNEY XN MR MCLANE
PN226
And that would be well-known, would it, in your opinion, to people in the industry?---I don’t think it would come to any mystery to anyone that’s in this room, no.
PN227
TCC, to the best of your knowledge, are they newcomers to the construction industry in Western Australia?---No, they’re not.
PN228
What sort of a relationship exists between our organisation and TCC generally?
---We’ve got agreements with TCC in quite a few places and we’ve usually got a pretty good relationship with the company.
PN229
Is this type of action out of character?---I would - if I didn’t know about the previous times, I would say yes.
PN230
MR BORLASE: Sorry, could you just clarify what action you’re talking about? Are you talking about industrial action or are you talking about the action of TCC?
PN231
MR MCLANE: Well, Mr Borlase, you can clarify any cross-examination.
PN232
MR BORLASE: Sorry, yes.
PN233
MR MCLANE: Did you have a discussion with the management of TCC?---I talked to Darren Ianello in the early evening. After a couple of calls.
PN234
Are you in a position to be able to say what the outcome was?---Well, my discussion with Darren centred around him - why the management did the work on the job and Darren said to me that it was a - that they had to do it because All - was it Allwest Scaffolding would have got the job.
PN235
All right?---I think it’s Allwest. I couldn’t be 100 per cent sure on the name of the company.
PN236
THE DEPUTY PRESIDENT: Mr McLane, where is all this taking us to? This application is in relation to United KG Pty Ltd. There are other applications that have been lodged, but they’re with respect to other companies asserting industrial action that seems to be related, but they’re not under consideration at the moment.
PN237
MR MCLANE: Thank you for that, sir. I was informed that on my way up to the Commission from the office that other applications had arrived in relation to this matter. What I assumed, wrongly probably, was that they were parties being joined.
**** STEPHEN JAMES MCCARTNEY XN MR MCLANE
PN238
THE DEPUTY PRESIDENT: Well, no one asked me to join them and I didn’t join them. In the meantime, they have been listed, but for 2.15 this afternoon. So the only matter that I am considering at the moment is 12.29 in relation to UKG. That does not mean that other issues may not relate to work not being performed now, but if you were working under the assumption that they were all being dealt with now, they’re not.
PN239
MR MCLANE: I had the wrong assumption, sir, and that’s probably not the first or the last time. Given that, I would seek to make an application that the matters be joined. They are all substantially the same issue and the same facts and the same material matters.
PN240
THE DEPUTY PRESIDENT: Well, a separate listing has been made. I will consider whether I join them. Perhaps if you progress with your examination-in-chief, but I think you had better progress on the basis that we’re dealing with the one application at the moment.
PN241
MR MCLANE: Thank you, sir.
PN242
THE DEPUTY PRESIDENT: Yes.
PN243
MR MCLANE: At the meeting yesterday, I think your - today, were you present at today’s meeting?---Yes, I was.
PN244
Who else was there from the union?---From our union?
PN245
Yes?---There’s Mark Goldsworthy and Joel Asphar, but Joel Asphar didn’t control the meeting.
PN246
Were there any other officials from other unions?---Yes, there was.
PN247
Who would that be?---Mark Hudson and - - -
PN248
Of the?---Of the CFMEU.
PN249
Yes?---And Mia, and I’m not sure of her second name, I think it’s Cresneck, from the CFMEU. I don’t know her second name.
PN250
That’s fine. What happened at the meeting, and why are we here?---Well, we had the meeting with the membership, we discussed the issues. We got to the TCC issue. The membership were inflamed, enraged, and we had some discussion backwards and forwards and ultimately the resolution was that they withdrew their labour and for a return to work on Monday morning.
**** STEPHEN JAMES MCCARTNEY XN MR MCLANE
PN251
Because of?---TCCs management working on the - working on the scaffolding.
PN252
Now, was there a - - -?---That was a resolution.
PN253
Thank you. You’ve heard evidence given this morning that there was two other issues involved?---Yes.
PN254
What do you say about those?---They were dealt with at the meeting, but the resolution was TCCs actions.
PN255
Okay, so there weren’t further demands?---No.
PN256
Are you very sure about that?---Positive.
PN257
I have no further examination-in-chief, sir.
PN258
THE DEPUTY PRESIDENT: Mr Borlase?
MR BORLASE: Thank you, your Honour.
<CROSS-EXAMINATION BY MR BORLASE [12.35PM]
PN260
MR BORLASE: Mr McCartney, your proper employer is the Automotive Food Metals Engineering Printing and Kindred Industries Union?---Yes, it is.
PN261
You’re an official of that union?---Yes, I am.
PN262
Yes. That union facilitated the meeting and arranged the meeting for yesterday, that being the 6th?---Yes, it did.
PN263
That union arranged the meeting for today as well?---Yes, it did.
PN264
You said Joel Asphar didn’t control today’s meeting. Who did?---He didn’t facilitate the meeting, I meant to say.
PN265
Who did?---Mark and myself.
PN266
Now, in terms of the action taken yesterday and the action taken today, neither of those issues have anything to do with United KG as an employer, do they?---The only thing it had to do with United KG is that they were metalworkers. The metalworkers from there, and that was part of the resolution, that all the metalworkers on that site was informed. So we’ve carried out what our resolution guided us to do.
**** STEPHEN JAMES MCCARTNEY XXN MR BORLASE
PN267
But it had nothing to do with them, did it, as United KG as an individual company? That they weren’t issues that related to United KG, were they?---What, TCC putting scaffolding up?
PN268
Yes?---Well, TCC didn’t put scaffold - United KG didn’t, no.
PN269
That’s right?---TCC did.
PN270
Okay. United KG aren’t involved in the negotiations with ABIGroup employees, are they?---No. That wasn’t part of the meeting today.
PN271
The purpose of yesterday’s stoppage was to protest and to influence ABIGroup not to continue to offer LK agreements and AWAs? That’s correct, isn’t it?---No. My understanding was it was in protest of ABIGroup putting into their workforce.
PN272
Okay. So people didn’t want them putting those agreements to their workforce, did they?---They were annoyed about it, yes.
PN273
And they didn’t want ABIGroup to offer AWAs or LK agreements, did they?---I guess that’s why they were protesting, yes.
PN274
And that’s why they took the industrial action, wasn’t it?---No, they protested, yes.
PN275
Well, they took industrial action - - -?---They withdrew their labour in protest.
PN276
They took industrial action - - -?---They withdrew their labour in protest.
PN277
Okay. That was the same today, wasn’t it, that the industrial action that’s occurring today and is continuing to occur is because employees, and you’re saying members of your union, don’t want TCC to have management put up scaffolding when there’s a strike on, isn’t it?---The resolution today was that they withdrew their labour until Monday in protest at TCC erecting scaffold - TCC management erecting scaffold on the site while there’s industrial action.
PN278
That's because they don't want in future TCC doing that type of thing, isn't it?
---I would understand that that would be right, yes.
PN279
The union supports those resolutions?---The union facilitated the meeting and supported the resolutions, yes.
**** STEPHEN JAMES MCCARTNEY XXN MR BORLASE
PN280
Are you aware of any law that says that TCC management or supervisory staff or any other employees at TCC were not allowed to do the work?
PN281
MR MCLANE: Sir, I object to this. It's a question of what the witness thinks might be the law or not the law is not something for a witness, it's something for submissions and something for yourself, with respect.
PN282
THE DEPUTY PRESIDENT: I don't think that question is necessary, Mr Borlase.
PN283
MR BORLASE: I withdraw the question. It's not necessary to pursue it.
PN284
You indicated that there were two officials of the Construction Forestry Mining Energy Workers Union in attendance at today's meeting. Is that correct?---Yes, they were at the meeting. Yes.
PN285
Do you know why they were at that meeting?---No. You're better off to talk to them about that, I think.
PN286
Did you speak to them at all?---I did, yes.
PN287
What was the nature of that discussion?---About a jetty job in Bunbury.
PN288
Did either of those officials participate in any part of the meeting today?---Mark had some discussion with his members today.
PN289
There's members of the CFMEU out on strike as well today?---I couldn't tell you.
PN290
I have no further questions, your Honour.
THE DEPUTY PRESIDENT: Thank you. Mr McLane, any re-examination?
<RE-EXAMINATION BY MR MCLANE [12.41PM]
PN292
MR MCLANE: The meeting that was held today, was that a joint meeting? Were the other unions present?---I couldn't say a hundred per cent sure if there were CFMEU members there but I did see them talking to some of the people that I gathered they represented, yes.
PN293
As part of that meeting or off to the side?---Well, they weren't - they weren't part - they did have some discussion at the meeting, yes.
**** STEPHEN JAMES MCCARTNEY RXN MR MCLANE
PN294
Thank you.
THE DEPUTY PRESIDENT: Thank you, you're excused.
<THE WITNESS WITHDREW [12.41PM]
PN296
THE DEPUTY PRESIDENT: Mr McLane, any further evidence?
MR MCLANE: Yes. I wish to call Mr Asphar, sir, and Mr Goldsworthy. I'm just not sure if Mr Goldsworthy has turned up yet. I am informed that he has. Mr Asphar, I think, probably first if I could, sir.
<JOEL MARK ASPHAR, AFFIRMED [12.43PM]
<EXAMINATION-IN-CHIEF BY MR MCLANE
PN298
MR MCLANE: Mr Asphar, would you just state your full name and address and your occupation, please?---Joel Mark Asphar (address supplied) and my occupation is union organiser AMWU.
PN299
How long have you been an organiser with the AMWU?---Approximately six weeks.
PN300
Prior to that, where did you work?---For Total Corrosion Control at Alcoa, Kwinana.
PN301
How long have you worked for them?---About two years.
PN302
Have you had an ongoing involvement in the Kwinana construction site?---As far as working there, yes.
PN303
How long have you been involved?---The two years I was on the job for Total.
PN304
What about as a union official in relation to this particular dispute that we're dealing with today?---Just Tuesday when I went there.
PN305
Can I just ask you to come in a bit and just speak up a little bit, if you will?
---Yes. I've only really been involved since the Tuesday morning as a fill-in role.
PN306
Who normally has carriage of the site from our union?---Mark Goldsworthy.
PN307
How did you come to be there on Tuesday?---Well, as it happens, I understood Mark was on another job and rather than have - really get anyone else, I think we had tried, but yes, I was informed that I really just needed to go in and fill in for him.
PN308
What happened at that meeting?---Well, the guys were pretty - pretty upset about the ABIGroup issue.
PN309
Which was what?---Was that they were trying to reach a union - collective agreement with them. They had offered AWAs before on the job and - recently and they had just been going on too long and they were pretty angry.
PN310
Where was that anger directed on that day?---It was ABIGroup management.
**** JOEL MARK ASPHAR XN MR MCLANE
PN311
What happened as a result of that meeting?---They all decided that they were going to go home in protest for 24 hours with a view to return to work this morning but with the report back meeting, no.
PN312
When you say they went home in protest, what do you understand was going to happen at this morning's meeting as a result of that resolution?---Well, it was with a - it was with a view to go back to work but they still did want a report back as I understand about what kind of answer we'd got from ABIGroup management.
PN313
Were you at the meeting this morning?---Yes.
PN314
Who was with you at the meeting on Tuesday from the Metal Workers, if anybody?---No one.
PN315
You're sure about that? Just take your mind back and be clear in your answers?
---Well, Steve was there but - - -
PN316
Steve who?---Steve McCartney.
PN317
What happened?---He just left just shortly before the meeting. He had to attend something else.
PN318
You were left to run the meeting?---Yes.
PN319
How many people were at the meeting, in your estimation?---Well, between 350, 400 as a rough - rough sort of guess.
PN320
I just want to jump you now to today's meeting?---Yes.
PN321
Were you present at today's meeting?---Yes.
PN322
Who else was there from our union?---Steve McCartney and Mark Goldsworthy.
PN323
Was there anybody else from other unions?---Yes. There was this young lady, sorry, I don't know her last name, Sabina. She was from the CFMEU, and another chap called Mark Hudson from the CFMEU.
PN324
Was there a return to work today as yet expected?---No.
**** JOEL MARK ASPHAR XN MR MCLANE
PN325
What happened today at the meeting?---The blokes were informed that some foremen from one of the contractors had done a job on site I think yesterday arvo or evening, as it was understood, and - - -
PN326
What was the job and which company?---It was Total Corrosion Control and it was a scaffold.
PN327
What did they do today as a result of that?---They decided to down tools until Monday morning ..... protest.
PN328
In relation to what?---To the scaffold being built by the foreman.
PN329
Were you involved in a similar dispute on this site a couple of weeks ago?---Yes.
PN330
What were the circumstances there?---There was a dispute with that company.
PN331
What was the company's name?---Yes, Total Corrosion Control.
PN332
Yes?---Yes, the dispute related to the same thing, the foreman .....
PN333
Can you recall whether there were any other demands made or were there any demands made as a result of today's meeting on companies?---The understanding is they don't want him to do it, the foreman on the tools.
PN334
Were there any demands made in relation to pay increases?---No, not at all.
PN335
What about the ABIGroup AWA still being at issue, was that still live?---No. That wasn't an issue. They understood that I was going to go back and talk with management and there wasn't really any issues.
PN336
Is it your evidence that there was only one issue today?---Yes.
PN337
That was?---The Total Corrosion Control foreman building the scaffolding yesterday.
PN338
I have no further questions, sir.
**** JOEL MARK ASPHAR XN MR MCLANE
PN339
THE DEPUTY PRESIDENT: Thank you. Mr Borlase.
<CROSS-EXAMINATION BY MR BORLASE [2.52PM]
PN340
MR BORLASE: Can I just get the spelling of your surname, please?
---A-s-p-h-a-r.
PN341
Thank you very much. You're an organiser with the Automotive Metal Food Metals Engineering Printing and Kindred Industries Union?---Yes.
PN342
You ran the meeting of employees who were members of the union yesterday at the Alcoa Kwinana site?---Yes.
PN343
You indicated in your evidence that the employees were angry at the ABIGroup management because they had offered AWAs and 170LK agreements to their employees. Is that correct?---Yes, I suppose - yes.
PN344
The protest action or the strike action that was taken yesterday was to try and get ABIGroup management to no longer offer AWAs and the LK agreement?---It was more that they were just - they were just unhappy that it had gone on for too long and they were just a bit upset about it but as far as specifically to an AWA, there's more to just going to talk about it.
PN345
It was designed to bring pressure onto ABIGroup management to make - - -
PN346
THE DEPUTY PRESIDENT: Mr Borlase, the purpose of these proceedings is for the purposes of the 127, not for any other purpose. I hope your questions aren't designed for other purposes.
PN347
MR BORLASE: Yes, your Honour, but it goes to the issues in terms of whether or not there is any justification by employees of United KG taking action affecting their employer, to establish the validity of that.
PN348
THE DEPUTY PRESIDENT: Those questions directed at that issue have been asked and answered.
PN349
MR BORLASE: You've indicated as well today that the current industrial action is because the employees that are on strike don't want TCC to use their supervisory staff to do scaffolding work. Is that correct?---Yes.
**** JOEL MARK ASPHAR XXN MR BORLASE
PN350
You said that there was a similar dispute a couple of weeks ago. Is that correct?
---Well, it might not have been two weeks to the day but it was around - - -
PN351
Approximately?---Yes.
PN352
Did employees of other companies engage in industrial action over that, from your recollection?---No.
PN353
If the ABIGroup agreement isn't completed shortly or if there are other similar issues that arose such as that with TCC, do you think that there would be further industrial action take place?
PN354
MR MCLANE: Sir, I object. It's just asking the witness to speculate. It has no bearing on the facts of the matter that have unfolded to date.
PN355
THE DEPUTY PRESIDENT: It might have implications for the terms of an order that might or might not issue, Mr McLane. I'll allow the questions.
PN356
THE WITNESS: Sorry, could you just - - -
PN357
MR BORLASE: Yes, certainly. If the ABIGroup agreement is not resolved shortly or if there are other issues which arose on that site of a similar nature to that which employees are on strike over today regarding TCC, if they were to arise on the site again, do you think that there would be industrial action by these employees?---Well, look, there's nothing planned. There's nothing planned as the way I see it. You'll have to ask me when it happens.
PN358
Do you think from the feeling of the meetings that you attended yesterday and today that if the same type of issue were to occur, or a similar type of issue were to occur, that industrial action would happen?---I really couldn't - I really couldn't give you a clear opinion on that. It hasn't really happened, has it.
PN359
It has certainly happened twice now, hasn't it, with TCC?---Yes.
PN360
Would you expect that people would take the same sort of action - - -
PN361
THE DEPUTY PRESIDENT: Mr Borlase, he has answered the question. Whilst you're posing it in a slightly different form, it's essentially the same question.
**** JOEL MARK ASPHAR XXN MR BORLASE
PN362
MR BORLASE: Yes, your Honour.
PN363
Are you aware as to whether or not there were discussions between your union and ABIGroup yesterday relating to the agreement?---Yes, there was - I think there was some informal stuff.
PN364
No further questions, thank you.
PN365
THE DEPUTY PRESIDENT: Any re-examination, Mr McLane?
MR MCLANE: Yes, just very briefly, sir.
<RE-EXAMINATION BY MR MCLANE [12.55PM]
PN367
MR MCLANE: Were all the members on that site concerned about AWAs and LK agreements entering the site?---Yes. They were well and truly concerned about that.
PN368
Why is that, do you know? Did anybody express a view as to why they were concerned about that?---Well, because it was - it was on their site, chaps they were working with and the way they see it, it's signing their rights away and they feel they, you know, they could be - they could be offered one too if it started to creep onto the site.
PN369
Is it well known on the site that there's an agenda around in the political sphere for those sort of moves?
PN370
MR BORLASE: Your Honour, this doesn't arise out of cross-examination.
PN371
THE DEPUTY PRESIDENT: No, it doesn't. It's new material, Mr McLane.
PN372
MR MCLANE: I have no further re-examination, sir.
THE DEPUTY PRESIDENT: Yes, you're excused, Mr Asphar?---Thank you.
<THE WITNESS WITHDREW [12.57PM]
PN374
THE DEPUTY PRESIDENT: Mr McLane.
MR MCLANE: I understand Mr Goldsworthy is available. I would seek to call him, sir, if he is.
<MARK CARL GOLDSWORTHY, AFFIRMED [12.58PM]
<EXAMINATION-IN-CHIEF BY MR MCLANE
PN376
MR MCLANE: Mr Goldsworthy, would you please state your full name and address and your occupation?---Mark Carl Goldsworthy (address supplied) occupation is an organiser for the AMWU.
PN377
Do you have responsibility for the Kwinana construction site, the subject to this dispute?---Yes.
PN378
Were you at a meeting on Tuesday, the 6th of this month at that site?---Yesterday, no, I wasn't.
PN379
Were you involved in an issue on the site in the last few weeks that led to industrial action occurring by our union?---How far back are we talking?
PN380
Two or three weeks?---Can you be more specific?
PN381
Has there been a strike on that site in the last two or three weeks that you've had any involvement in?---No, not that I've had involvement in.
PN382
Take your time, Mr Goldsworthy, and just think back through it.
PN383
THE DEPUTY PRESIDENT: Mr Goldsworthy, I'm conscious from other matters that I've been dealing with - - -?---This is at Kwinana.
PN384
- - - I sometimes get confused over different sites and different projects so I can understand how you may as well. Mr McLane, I'm sure that Mr Borlase won't object to a degree of leading in this regard.
PN385
MR BORLASE: He can lead the witness to as much industrial action as he has been involved with as necessary.
PN386
MR MCLANE: Were you involved in an issue with TCC on this site regarding the return to work of one of our members a couple of weeks ago?---Yes, I forgot that one.
PN387
Was that issue resolved, the return to work of the member?---Yes, it was.
PN388
Was there further industrial action arising out of that because of some actions of TCC?---I'm just trying to think, the - - -
**** MARK CARL GOLDSWORTHY XN MR MCLANE
PN389
During the strike?---Yes, there was.
PN390
Do you recall what it was now?---TCC, whilst the members were on strike, had their supervisors do scaffolding work.
PN391
How long have you been dealing with TCC?---Probably four to five years.
PN392
Is that the usual way that TCC does business or is it unusual?---It certainly wasn't usual for TCC to engage in that practice of using supervisors to do scaffold whilst employees were taking industrial action.
PN393
What sort of relationship exists with TCC and our organisation generally?---In general I believe the relationship was usually pretty good. It may have somewhat changed in the last two or three months.
PN394
When did you become involved in the dispute, the subject of these proceedings?
---This morning.
PN395
When did you become aware of that there was a strike?---Yesterday.
PN396
How did you become aware?---I was informed firstly by a member that rang me who is on site that asked whether I would be present at today's meeting.
PN397
Were you present at today's meeting?---Yes.
PN398
What happened at today's meeting?---There was a report back by myself to the membership regarding an enterprise agreement with - or negotiations with ABI. There was a discussion regarding the use of supervisors to do scaffold work whilst the people were on strike yesterday and ultimately there was a resolution to remove themselves from site - remove their labour, sir.
PN399
Until when?---Monday morning, I believe, where there will be an automatic return to work.
PN400
What was the issue that sparked that?---The scaffold work being done by supervisors.
PN401
Have you had some ongoing involvement in the ABI AWA LK events?---Yes, I have.
**** MARK CARL GOLDSWORTHY XN MR MCLANE
PN402
Had our membership on that site adopted a position in relation to AWAs or LK agreements on the site?---Are you talking about the ABI membership?
PN403
No, I'm talking about the membership collectively?---My understanding is that the membership collectively vehemently opposes the introduction of individual contracts of any description, be it at Alcoa or anywhere.
PN404
Why are they so opposed to it on this particular site?---Because there's a number of collective agreements in place that have been negotiated over a period of - periods of time. People have taken extended industrial action in pursuit of those agreements and it is felt by the membership that if there individual contracts in place they will only be seen to be - I suppose, degrade or be used as a means to reduce the terms and conditions of the employees at Alcoa.
PN405
Are ABI aware of that view?---Certainly.
PN406
Are the other employers on this particular job aware of that view?---Certainly.
PN407
Why can you be so certain?---Because a number of companies have raised with us at certain times that they may want to pursue non-union agreements or individual contracts at sometime as an alternative - - -
PN408
THE DEPUTY PRESIDENT: Mr McLane, what has this got to do with this application.
PN409
MR BORLASE: It has got everything to do with the application, your Honour.
PN410
THE DEPUTY PRESIDENT: Mr Borlase, if I want any comments from you I'll give you the opportunity.
PN411
MR MCLANE: It's establishing evidence, sir, that will go to the knowledge of the other contractors involved, apart from ABI.
PN412
THE DEPUTY PRESIDENT: Whether they've got knowledge or not, what has that got to do with it?
PN413
MR MCLANE: It's got everything to do with it, I would say, sir.
PN414
THE DEPUTY PRESIDENT: If you want to pursue the line, it's up to you. Proceed.
**** MARK CARL GOLDSWORTHY XN MR MCLANE
PN415
MR MCLANE: Thank you.
PN416
Why can you say that with such certainty?---Because of the discussions we had with companies in the past. Some have indicated to us that they may want to pursue non-union agreements or some form of individual contract on the basis that they feel they would be disadvantaged by some - in some way and we've made it very, very clear to those companies that we would not be a party to those types of things. We've also - I think the last - there was also a dispute earlier in the year where the individual contract was raised then and we made it very, very clear at that time that we weren't willing to accept members being forced to be - to go on individual contracts.
PN417
In your experience, would the employers on this particular job be surprised at the action of the membership if one of them sought to head down this path?---No, I don't think so.
PN418
THE DEPUTY PRESIDENT: Mr McLane, I hope you are conscious of the nature of the questions you're asking.
PN419
MR MCLANE: I'm not going any further on that, sir.
PN420
In relation to TCC using the labour on this occasion during the strike, when did you become aware of that?---This morning.
PN421
What bells rang in your head in relation to what would occur as a result of that?
---It was pretty clear to me that this had occurred in the past and we knew what the reaction was from the membership and in my
experience I couldn't see that the views of the membership would have changed so my expectation was that once the broader membership
found out that it had occurred again that they wouldn't - they wouldn't take too kindly to what had occurred.
PN422
I have no further questions, sir.
THE DEPUTY PRESIDENT: Thank you. Mr Borlase.
<CROSS-EXAMINATION BY MR BORLASE [1.08PM]
PN424
MR BORLASE: Thank you, your Honour, I'll be very brief.
PN425
Just based on the answer to your last question that was posed to you, Mr Goldsworthy, if there were further instances of this nature, is it your view that it would be likely that people would take the same sort of industrial action?---I think it would depend on the circumstances. If the circumstances were the same as today, I suppose they would have to consider in - why the supervisors had done the work that was normally done by the workforce and make the decision on that basis.
**** MARK CARL GOLDSWORTHY XXN MR BORLASE
PN426
You expected this action to occur based on the fact that something similar had occurred previously?---Yes. That was also based on that I had discussions with Mr Ianello at about half past six last night. The normal process is that if they - if the company requires to do some type of work, and it's usually based on the grounds of safety or environmental concerns, then they normally contact the organiser involved and seek their views on whether that work can be done by a supervisor and it's always usually forthcoming by the union to allow that to occur. I was somewhat surprised that Mr Ianello didn't raise it last night as an issue and which he could have done and we could have had that discussion last night. So based on what hadn't occurred, and then to my surprise what I was told in the morning, it didn't surprise me the reaction of the membership.
PN427
It wouldn't surprise you if some other company had a dispute and did work with their management without going through some sort of a process that you saw as the right process, that there would be similar industrial action?---Assuming that it would - was outside the guidelines of the enterprise agreement which we believe this is.
PN428
No further question, your Honour.
PN429
THE DEPUTY PRESIDENT: Thank you. Mr McLane.
PN430
MR MCLANE: Nothing arising, sir.
THE DEPUTY PRESIDENT: Yes, thank you. You're excused,
Mr Goldsworthy.
PN432
THE DEPUTY PRESIDENT: I will entertain submissions now, assuming that all your evidence has been called. Am I accurate in that, Mr McLane?
PN433
MR MCLANE: That's correct, sir.
PN434
THE DEPUTY PRESIDENT: I would expect you to address in those submissions not only whether there is a basis on which to issue an order, but whether an order should issue, if one were to issue, the nature of the order and its term.
PN435
MR BORLASE: Thank you, your Honour.
PN436
THE DEPUTY PRESIDENT: Mr McLane.
PN437
MR BORLASE: I beg your pardon, sorry, sir.
PN438
THE DEPUTY PRESIDENT: You get to go last, unless you want to go now.
PN439
MR BORLASE: No, that's fine, sir.
PN440
MR MCLANE: Sir, I'm able to make the application that the matters be joined. It's really quite crucial to us that that is the case, otherwise - - -
PN441
THE DEPUTY PRESIDENT: You want the other matters to be joined to this and heard and determined before a decision is made with respect to this application. Is that what you're requesting?
PN442
MR MCLANE: That's what I'm putting, sir. It won't be necessary to bring any further evidence from our side, otherwise we'll just be going through the motions one by one. More importantly, sir - - -
PN443
THE DEPUTY PRESIDENT: They're separate applications and they're separate companies. I'll hear from Mr Borlase in a moment, but perhaps you can expand on why you put that submission.
PN444
MR MCLANE: Thank you, sir. It really goes to whether or not an order should issue at all, sir, and whether or not, if an order is to issue, what terms that order should take. I intend to, in submissions, state the obvious, that it's a discretionary power that the Commission has and that the Commission for good reason, in my submission as a whole, is generally cautious in the way it approaches the making of these orders. One very pressing reason for that is where they lead to and what they do.
PN445
Our defence will be in part that the action that has been taken is legitimate and we will seek to have a determination made in relation to that, your Honour. Our further defence will be that the employers - - -
PN446
THE DEPUTY PRESIDENT: What do you mean, legitimate?
PN447
MR MCLANE: Determine as to whether the action that has occurred is legitimate in the circumstances that have occurred or is it illegitimate action.
PN448
THE DEPUTY PRESIDENT: Yes, but what does that mean? What do you mean by that?
PN449
MR MCLANE: A Full Bench of the Federal Commission in Coal and Allied Pty Ltd v AMWU has turned its mind to the different types of action that occurs and has considered the various ways in which the Act treats industrial action. There's protected industrial action that's explicitly prohibited, penalised industrial action and there's industrial action at large.
PN450
THE DEPUTY PRESIDENT: Are you asserting that it's protected action?
PN451
MR MCLANE: No, I'm not, sir. I concede that it's not, but I am going to attempt to convince the Commission that it is legitimate in the sense that it's not action that the union has gone out and just engaged in for the sake of engaging in, that the employers knew what was coming, that it shouldn't be surprised at the action that has occurred and in essence, that they don't come to the Commission with clean hands. They come seeking equity in the form of relief by section 127 and TCC, and ABIGroup to the larger extent, have been implicit in the precipitation of the action that you're dealing with.
PN452
I know that the authorities say that it's not necessary for the Commission to decide whether industrial action is appropriate or illegitimate or legitimate, appropriate or inappropriate, but I tend to argue, sir, that it is appropriate in the circumstances of this dispute. To have any chance with that defence, it has to be wider than United KG.
PN453
THE DEPUTY PRESIDENT: I'll hear from Mr Borlase about the joining. Mr Borlase, in the other applications are you representing those employers?
PN454
MR BORLASE: At this point I've received no instructions from them. I haven't met or spoken with any of those companies. I suspect that I may be, but I've received instructions from United KG that they do oppose the joining of the matter because they don't want their particular issue in any way clouded with the arguments certainly that Mr - and I certainly don't concede in any way, shape or form that there's any validity to the argument that Mr McLane proposes to put forward. The company I'm representing at the moment doesn't want to be clouded by that in any way in terms of their application.
PN455
THE DEPUTY PRESIDENT: Mr McLane, I'll not join these matters, however, you'll be given wide latitude in any submissions you wish to make with respect to whether an order should issue with respect to this application.
PN456
MR MCLANE: As the Commission pleases. Sir, it's our submission that from the evidence led by the applicant that in relation to the first witness, Mr Foolkes, it was well known on the site that TCC had engaged in similar action only in very recent times that was almost identical. A strike had occurred and TCC management went in and carried out work. That led to another 24 hour strike and an application for a 127 relief.
PN457
Regardless of the right or wrong of the initial action that took place in both this case and the previous case, the action of TCC in doing what they do was not something that was innocent. It may have been something that we would have been prepared to concede last time round that was a one off but it's certainly not a one off when two weeks down the track, with the full knowledge of what they learned out of the last blue, if they didn't know it already, which I would submit that they did, that the same action happened again. Given the circumstances that they knew the whole site was out on this occasion, I would say that it's reasonably open for the Commission to draw an inference under the rule of Jones v Dunkel that TCC fully knew what it was going to bring about on this occasion.
PN458
THE DEPUTY PRESIDENT: What has that got to do with United KG or any other contractor on the site?
PN459
MR MCLANE: United KG, well, that's the difficulty, sir.
PN460
THE DEPUTY PRESIDENT: United KG is entitled to seek access and relief from this Commission or anywhere else for that matter. That's what they've done and if what your argument is, and what it seems to be, is because of the action you say occurred of another employer, albeit at the same site, that an order should not issue with respect to this employer with its application with actions that are affecting it. That's essentially as I understand your argument.
PN461
MR MCLANE: In essence that is it. It goes a little bit further but in essence that is it and that's why the application was made to join everybody.
PN462
THE DEPUTY PRESIDENT: Even if they were joined, the essence of your argument would remain the same, would it not?
PN463
MR MCLANE: It doesn't, sir, because there's enough evidence before you to establish that all the employers on the site are all aware of what type of action this union takes in those sort of circumstances and nobody should be surprised by it. It's notorious.
PN464
THE DEPUTY PRESIDENT: Yes.
PN465
MR MCLANE: I say further, sir, that the order in the terms that it's being sought are just far too broad and for a term of some three months which really, in my submission, is an attempt to bring about, in effect, a bans clause which this legislation isn't designed to do. This legislation is designed to stop industrial action that's occurring in specific instances.
PN466
THE DEPUTY PRESIDENT: It's a little more fundamental than that, isn't it, Mr McLane? The Act is designed to provide a framework whereby agreements can be reached and during the term of those agreements industrial action does not occur.
PN467
MR MCLANE: That's correct, sir.
PN468
THE DEPUTY PRESIDENT: If industrial action does occur, then there are avenues to seek to stop that action.
PN469
MR MCLANE: That's correct, sir. I don't take any issue with that. I suppose the conduct that's been complained of on the site and the action that's taking place today, with United KG having some 11 employees on the site out of what Mr Asphar estimates to be maybe 350 and what Mr McCartney puts at a couple of hundred, is hardly going to bring about a practical resolution to the issues on the site.
PN470
THE DEPUTY PRESIDENT: That may be so but any employer has the right to bring these applications as it affects them. Other employers might decide to redeploy their employees somewhere else or to do anything that's in their hands and control, but this employer has made its application and that's what's before me.
PN471
MR MCLANE: Yes, I understand, sir. If there is an order to be issued, then it should only issue for a short period of time. Certainly three months is far too long. I would say it should issue for possibly until the end of the week if it is to issue at all. I suppose that does me, sir.
PN472
THE DEPUTY PRESIDENT: Thank you, Mr McLane. Mr Borlase.
PN473
MR BORLASE: Thank you, your Honour. We would strongly urge the Commission to exercise the discretion that it has pursuant to section 127 and to exercise it in the form of the draft order that we have attached to the application in this matter.
PN474
The position of the organisation, the employees and the members of the union that Mr McLane has the job of defending is indefensible. The evidence that you have heard quite clearly relegates this action, if I can use the loose terms or the undefined terms that Mr McLane used of legitimate or illegitimate in the sense used in the Coal and Allied decision, in our view very clearly falls into that illegitimate category. They are issues over which this company has absolutely no control. They are issues over which this company hasn't had discussed with them by the union. They are issues over which their employees have not sought to use the dispute resolution procedure pursuant to the agreement that they have. I would note that that agreement is to remain in term until 1 July 2006.
PN475
We say that clearly, all of the requirements of section 127 have been met in that there is the United KG Pty Ltd Alcoa Local Service Contracts and Associated Projects Certified Agreement 2003 in place. It governs the work that applies at this site and it governs the work of the employees who are currently engaging in industrial action. We say quite clearly that all of the jurisdictional requirements for the Commission to issue an order exist in these circumstances.
PN476
As I have indicated, all of the evidence that the Commission has heard is quite clearly that the industrial action is actually occurring and that it is not protected industrial action. There has been no suggestion that it would constitute industrial action. The Commission has also heard evidence, and I think that it - - -
PN477
THE DEPUTY PRESIDENT: There's no suggestion that it would constitute industrial action?
PN478
MR BORLASE: Sorry, protected industrial action, your Honour, my apologies.
PN479
The Commission has heard evidence from Mr Goldsworthy and Mr Asphar to lead the Commission to a position where it could reasonably presume that if there were any further instances of any type, of a nature surrounding for instance TCC that has been relied upon by the respondent union, that there would be further industrial action.
PN480
There is quite clearly, based on the evidence of Mr Goldsworthy, a clear protest by the employees and industrial action designed to discourage employers from pursuing their legitimate legal rights should they so choose to do so in future. The entire basis of the action is aimed at discouraging employers from pursuing legal courses of action either under the Act in pursuing a section 170LK agreement, or an Australian workplace agreement in the instance of ABIGroup in terms of Total Corrosion Control having work done in whatever form that they wish to have it done in the legal sense. There is absolutely no legitimacy that can be hung on this action of United KG or the union is supporting and organising that action either.
PN481
In the words of Mr McLane, the union is notorious for this type of action and we say that there is a history that has been demonstrated through the evidence at this site and on the basis of the project which is currently under foot, particularly relating to the liquor burner, that the estimated duration of that project, the evidence that is before the Commission of the likelihood and potential for future industrial to occur, that an order of the timeframe that has been sought, is also appropriate to protect that work which is being conducted under an agreement which is certified by this Commission and is in term through to July 2006.
PN482
The mere fact that the union distinguishes these two days, being Tuesday and then the action which has started to occur today, has been indicated to go through until Monday, distinguishing that as two separate types of action, in our respectful submission, simply adds to that history and that pattern of behaviour that the Commission can presume to occur. That same distinction has been drawn with regard to an earlier action, not taken by employees of this company but of TCC, of two separate actions as well. That arose out of the evidence of both Mr Goldsworthy and Mr Asphar.
PN483
On those bases we would strongly urge the Commission to exercise its jurisdiction and its discretion that it has in this matter and issue the orders in the terms that we have sought. May it please the Commission.
PN484
THE DEPUTY PRESIDENT: I'm satisfied that the jurisdictional requirements do exist pursuant to section 127 for an order to issue in this matter. I am inclined to issue an order substantially, if not identically in the terms sought by the applicant. However, I am conscious that there are other proceedings that the unions assert may have some implications for this proceeding. I have those other proceedings listed for 2.15 this afternoon.
PN485
If, Mr Borlase, as a result of those proceedings, I become disinclined or less inclined to issue an order I will hear from you further before taking any decision in that regard. In that respect I would expect you to be available at short notice later this afternoon. I will adjourn on that basis. Just go off record for a moment.
<NO FURTHER PROCEEDINGS RECORDED
LIST OF WITNESSES, EXHIBITS AND MFIs
PETER ROBERT FOOLKES, SWORN PN21
EXAMINATION-IN-CHIEF BY MR BORLASE PN21
CROSS-EXAMINATION BY MR MCLANE PN71
RE-EXAMINATION BY MR BORLASE PN100
THE WITNESS WITHDREW PN103
GIUSEPPE FITTI, SWORN PN104
EXAMINATION-IN-CHIEF BY MR BORLASE PN104
CROSS-EXAMINATION BY MR MCLANE PN157
RE-EXAMINATION BY MR BORLASE PN176
THE WITNESS WITHDREW PN180
STEPHEN JAMES MCCARTNEY, AFFIRMED PN184
EXAMINATION-IN-CHIEF BY MR MCLANE PN184
CROSS-EXAMINATION BY MR BORLASE PN259
RE-EXAMINATION BY MR MCLANE PN291
THE WITNESS WITHDREW PN295
JOEL MARK ASPHAR, AFFIRMED PN297
EXAMINATION-IN-CHIEF BY MR MCLANE PN297
CROSS-EXAMINATION BY MR BORLASE PN339
RE-EXAMINATION BY MR MCLANE PN366
THE WITNESS WITHDREW PN373
MARK CARL GOLDSWORTHY, AFFIRMED PN375
EXAMINATION-IN-CHIEF BY MR MCLANE PN375
CROSS-EXAMINATION BY MR BORLASE PN423
THE WITNESS WITHDREW PN431
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/other/AIRCTrans/2005/1941.html