C2005/1230, Transcript of Proceedings [2005] AIRCTrans 1943 (20 September 2005)

TRANSCRIPT OF PROCEEDINGS

---

Workplace Relations Act 1996 12761-1

DEPUTY PRESIDENT MCCARTHY

C2005/1230 C2005/1232

TOTAL CORROSION CONTROL 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
(C2005/1230)

PERTH

2.24PM, WEDNESDAY, 07 SEPTEMBER 2005

PN1

MR M C BORLASE: I appear for both Western Construction Company Limited and Total Corrosion Control Pty Limited in these matters.

PN2

MR D C McLANE: I appear on behalf of the AMWU in both matters.

PN3

THE DEPUTY PRESIDENT: Yes.

PN4

MR BORLASE: Your Honour, prior to the matters commencing there was a discussion between myself and Mr McLane and we reached agreement that we would ask the Commission to take into account the evidence that you have already heard in matter 1129 earlier today.

PN5

THE DEPUTY PRESIDENT: 1229.

PN6

MR BORLASE: I beg your pardon, yes 1229, in respect to the factual circumstances surrounding the dispute relating to both of these two companies. That will, if the Commission is prepared to allow that, that will certainly limit the amount of time that is required in terms of any additional evidence that I need to bring for the purposes of establishing your jurisdictional basis for these matters and also assist you, I believe, in making any determinations that you need to make in respect to the merit and exercising of your discretion in these matters.

PN7

THE DEPUTY PRESIDENT: Mr McLane, do you have any objection to that?

PN8

MR McLANE: No, none whatsoever, sir, I actually support that course of action.

PN9

THE DEPUTY PRESIDENT: Yes. I shall do so then.

PN10

MR McLANE: Thank you, sir. While I am on my feet, sir, I attempted to contact Mr Saunders, I am informed that Mr Saunders is actually not at work today, sir, he is at home sick.

PN11

THE DEPUTY PRESIDENT: Okay, thank you.

PN12

MR BORLASE: Thank you, Your Honour. Your Honour, both of these applications are applications seeking orders pursuant to section 127 of the Act, requiring employees of both companies to return to work and not engage in further industrial action and requiring certain actions on the part of the Union, to effect or assist in the return to work by those employees who are currently on strike and to not engage in future conduct in respect of those employees.

PN13

What I would intend to do is just to call some very brief evidence, firstly on behalf of Western Construction and then on behalf of Total Corrosion Control. To that end I would call Mr Flavio Moscio.

<FLAVIO MOSCIO, SWORN [2.27AM]
<EXAMINATION-IN-CHIEF BY MR BORLASE

PN14

THE DEPUTY PRESIDENT: Mr Borlase, in the previous proceedings there was exclusion of witnesses. Are any of the people you are intending to call, were they in the Commission during proceedings when that evidence was heard in those other matters? Is anyone taking that evidence into account?

PN15

MR BORLASE: I do not know whether they were in the courtroom during those proceedings or not, I did not observe it so I could not - I could find out for you?

PN16

THE DEPUTY PRESIDENT: I request that both of you advise me, Mr McFarlane excluded Mr McLane as he was in here, I am aware, instructing for the purpose of the obstruction, but Mr Borlase if you can ensure or make aware of whether that circumstance exists or not.

PN17

MR BORLASE: Certainly. I have asked the other person I intend to request evidence from to vacate the courtroom now, but I am unaware in terms of whether he was in here previously, I will find that out for you.

PN18

Mr Moscio, for the record, could you please provide your full name and address to the Commission?---Yes, my name is Flavio Moscio, address 13 Maynard Road, Westminster, WA, Perth.

PN19

Who is your employer?---Western Construction.

PN20

In what capacity are you employed?---Site Superintendent at Alcoa Refinery.

PN21

Can you tell the Commission whether or not you were present in court during the earlier proceeding?---Yes I was, Your Honour.

PN22

Thank you Mr Moscio.

PN23

MR McLANE: Given that there was a clear directive for witnesses to be excluded in the previous matter, I think it is only appropriate that this witness is not heard, if he is heard I would ask that you take into consideration the fact that he has sat through and listened to some five witnesses giving - - -

PN24

THE DEPUTY PRESIDENT: I will allow the evidence, what weight I give to that - and I certainly will take into consideration that he has heard the evidence of other witnesses in the other proceedings that are relevant to these proceedings.

**** FLAVIO MOSCIO XN MR BORLASE
PN25

MR McLANE: Thank you, sir.

PN26

MR BORLASE: Mr Moscio, can you tell me the location that you are currently working for Western Construction?---I am currently located at Alcoa Refinery in Kwinana.

PN27

And what is your role there?---Site Superintendent.

PN28

Does Western Construction have other employees at that site?---Yes we have currently got 58 employees at Alcoa Kwinana.

PN29

What is the work that they are engaged on?---We did general maintenance, day to day maintenance and general day to day contracts that we went on site.

PN30

What classifications of employees do you engage?---We have got classifications, we do boiler making, welding, rigging, all sorts of stuff.

PN31

Those employees that you engage at that site, is their terms of employment covered by any sort of industrial agreement?---Yes we have had an EBA in place for numerous years.

PN32

Is that agreement the Western Construction - - -?---Minor Service Contract.

PN33

The Minor Service Contract Agreement, thank you. Are those employees currently at work at the moment?---No they are currently on strike until Monday morning.

PN34

When did you become aware that they were on strike?---I got full notice of it this morning, they returned after yesterday after a previous meeting saying they had a 24 hour stoppage and they turned back to me this morning, got full report from a union representative saying they would be on strike till further notice, till Monday morning.

PN35

Did you only find out about the strike action today? Or did you hear about it - - -?
---This morning after this meeting that took place this morning.

PN36

What meeting was that?---It was just a meeting called - there was a previous meeting held yesterday and yesterday was a report back on just on what took place yesterday and this morning was another previous meeting that it was held this morning, just came back to us and says, "We are on strike".

**** FLAVIO MOSCIO XN MR BORLASE
PN37

If I take you to the meeting yesterday that you say occurred, was there any consequence or anything that occurred after that meeting?---No. After that meeting yesterday, yes, they went on 24 hour stoppage.

PN38

Who told you about that?---Union representative for the company.

PN39

Who is that?---Peter Scott.

PN40

Did he tell you the reason that people were on strike?---Reason being for every group not having an EBA.

PN41

Is that the only reason that he - - -?---That was the only reason that was reported back to me.

PN42

You made reference to a meeting this morning, can you tell the Commission what was reported to you and by whom?---This morning it was reported to me by the same person, Peter Scott, union representative, they are on strike until Monday morning, the reason being numerous reasons, one was Abbey Group, I am just trying to recall what the other one was because quite a few things took place straight after it. Yes, one was Abbey Group and the other one was TCC Employee Management going to do work on site. There was some disagreement, guys not wanting to strike but that still took place.

PN43

What are the consequences of this industrial action for Western Construction?---It is quite big for us actually. Having a minor service contract which we can - consists of 58 people on site, which is probably the biggest amount out of all the companies, have been there for numerous years now. It has a big impact on us, we look after the everyday maintenance.

PN44

Does that mean that there is work that is not being done?---Yes, there is work currently not being done, which is pretty important to us.

PN45

What is the consequence of this industrial action, do you think, on your relationship between you and your client?---Yes, in a - it is big, it is big. It is not well - very good organised for us, we would like these sort of people to come forward to us to talk to us when something takes place, to talk the matters out.

PN46

If I can just stop you there. In terms of the relationship between you and your client, Alcoa, is there any negative effects that this industrial action has between yourself and Alcoa?---Yes, it has, it has.

**** FLAVIO MOSCIO XN MR BORLASE
PN47

What are those effects?---Well the relationship between us that we provide the good service and everything.

PN48

Has it placed any contracts at risk do you think?---Yes it does.

PN49

Has this Union and your employees been involved in any similar industrial action in the last six months, that you are aware of?---Yes it has.

PN50

Can you tell the Commission what that was?---It was over the same matter, Abbey Group not having an EBA.

PN51

Is that any issue that Western Construction has got any involvement or control over?---No, it has got no control over whatsoever.

PN52

The contract that you have with Alcoa is that an ongoing contract or is that subject to each - - -?---No, it is not ongoing, it is due for review in February this coming year 2006.

PN53

Have you had any indications in terms of how that review might be taken with the industrial action?---No.

PN54

I have no further questions, Your Honour.

PN55

THE DEPUTY PRESIDENT: Thank you, Mr McLane?

<CROSS-EXAMINATION BY MR MCLANE [2.36PM]

PN56

MR McLANE: Mr Moscio, are you aware of procedures being in place, if for example there is a strike taking place and the company needs to have some work carried out for - - -?---Yes I do, yes I do. Approach our union representative, tell him of the matter and tell them the situation, like we spoke earlier on and yes, contact him, tell him the situation, if it is a matter of safety or environmental we go ahead and we work things out.

PN57

And you have had had cause to have to do that - - -?---Yes, we have had cause.

PN58

I can understand you would not be happy about people being on strike - - -?
---Yes.

PN59

But the process itself, has that worked well - - -?---Yes, it has been carried out yes, worked out well.

**** FLAVIO MOSCIO XXN MR MCLANE
PN60

Thank you. Is that well known to other contractors on the site apart from Western Constructions?---Yes, I believe it is a standard matter, but yes.

PN61

Thank you, I have no further questions.

PN62

THE DEPUTY PRESIDENT: Yes.

<RE-EXAMINATION BY MR BORLASE [2.37PM]

PN63

MR BORLASE: The process that Mr McLane just referred to, is that contained in your enterprise bargaining agreement?---No, no.

PN64

Thank you, no further questions.

PN65

THE DEPUTY PRESIDENT: Yes, you are excused, thank you Mr Moscio.

<THE WITNESS WITHDREW [2.37PM]

PN66

MR BORLASE: Your Honour, I call Benjamin James Harris. Your Honour, I just take the opportunity, I have been advised that Mr Harris was in the Commission during earlier proceedings.

<BENJAMIN JAMES HARRIS, SWORN [2.38PM]
<EXAMINATION-IN-CHIEF BY MR BORLASE

PN67

MR BORLASE: Thank you Mr Harris. Just for the record, could you provide your full name and address to the Commission please?---Benjamin James Harris, 143 Grand Ocean Boulevard, Port Kennedy.

PN68

Who is your employer?---Total Corrosion Control.

PN69

In what capacity are you employed by Total Corrosion Control?---I am a Scaffolding Supervisor at Alcoa Kwinana.

PN70

How long have you been engaged in that position?---Approximately four years.

PN71

Four years. And have you been engaged in this type of industry for very long?
---Yes, for about 13 years.

PN72

Can you tell the Commission the nature of the work that you have at the Alcoa Kwinana Refinery, as in the company?---We have got the maintenance contract there for scaffolding, insulation, lagging and sandblasting and painting.

PN73

Are you aware of whether or not there are any other contactors on site providing similar types of services?---Yes, they have recently brought in another scaffolding company, they are currently doing work on site as well.

PN74

Approximately how many employees do you have engaged on that site?---We have got about 40 personnel on site.

PN75

Are those people employed under any form of industrial agreement?---Yes, we have got the maintenance agreement with Total Corrosion Control at Alcoa Kwinana.

PN76

Is that the Total Corrosion Control Pty Ltd, Alcoa Local Services and Minor Projects Agreement 2004 to 2007?---Yes it is.

PN77

The people that you have employed are employees that fall within the classifications in that agreement?---Yes.

PN78

Are those employees that you refer to, are they currently working?---No they are not, they are on strike.

**** BENJAMIN JAMES HARRIS XN MR BORLASE
PN79

How did you become aware that they were on strike?---Yesterday I was informed by our site delegate that the - might be having a stop, withdrawing their labour because of two issues, they were Abbey Group individual contracts and construction rates for the liquor burner upgrade.

PN80

And who informed you of that?---Our delegate for site, Lester Day his name is.

PN81

That was yesterday or today?---Yesterday.

PN82

So you were informed of two issues yesterday were you?---Yes, that is correct.

PN83

You indicated that they are on strike today, has there been any reason given to you today?---Sorry yesterday I was also informed that there would be a report back meeting this morning at seven. They had that meeting, Lester came in and the guys had already said that they were going home, Lester came in shortly after, sort of most of the workforce had filtered back in, grabbed their gear and taken off. And Lester came in and I asked him what the issues were and he told me that the issues were construction rates for the liquor burner in support of Abbey Group and the - the individual contracts. He said that the issue was also raised of supervision of staff from TCC working on site the previous night.

PN84

Did supervisory staff from TCC perform work on site on the 6th?---Yes we did.

PN85

What was that work?---It was a scaffold to get out to a burst elbow of a pipe, there was a hole in the pipe about that big and it was spraying caustic right over one of the control rooms on site. I was called about 3.30 to attend the meeting with the business centre managers and they explained to me that it was an urgent job, it was a safety job and that it needed doing.

PN86

Can you tell the Commission what you mean by caustic being sprayed?---Caustic soda in a mud slurry form, spraying out probably 15 metres of this burst elbow of the pipeline.

PN87

What was it spraying onto?---It was spraying onto one of the control rooms, building 30X, we have a house of all the electrical computers and systems to run that area.

PN88

Is caustic soda a corrosive acid or anything of that nature, that you know of?
---Yes, yes it is.

**** BENJAMIN JAMES HARRIS XN MR BORLASE
PN89

Have you had previous occasion to have management staff perform work during the course of industrial action being taken?---Yes we have.

PN90

In terms of that, what is the basis that that has occurred?---We have had an undertaking that the AMWU previously, if it is a safety issue and we cannot get guys in to do the work, that supervisors and staff will carry out the task.

PN91

Did you go through that process this time?---No, we did not. It was a fairly urgent - urgent job. Previously we have tried, last time we were here for the Abbey Group individual contracts when the guys were out the gate then. Over the same or similar issue. We tried contacting Mark Goldsworthy and Stephen McCartney, we actually got hold of Steve and he said that we could bring guys in if it was a safety issue and Keith Frear spoke to him, my manager, site manager, and then Steve said, "Look, so long as it is a genuine safety issue", which it was, "You can bring guys in". We went through the call out list and we could not get anyone to come in and we ended up doing the job ourselves.

PN92

Was there an occasion a few weeks ago where you also had people, supervisory staff, working on site?---Yes, there was.

PN93

What was the circumstances there?---It was on a major shutdown, building 50. It was a critical part that needed to be achieved to keep everything on track and they needed a scaffold built, so we built it.

PN94

Was industrial action taken over that?---Yes.

PN95

So why did you have managerial staff and supervisory staff do this job yesterday?---Because it was highlighted to us that it was a safety issue and that it needed to be done straight away, the line had to be isolated and they wanted it done. There was a big pool of caustic on the ground and mud and slurry.

PN96

In your opinion was it likely that you would have been able to get any employees to come in in time?---I do not believe so, no.

PN97

Do you know how long your employees are likely to be taking industrial action on this particular occasion?---At the moment, as I was informed today, they are out until Monday morning.

PN98

Just taking you back to what you indicated that was an agreement between yourselves and the AMWU as a process, do you have any faith in the likelihood of people responding in those circumstances to come in and do the work for you?---I - I was involved with calling the guys and it is very difficult to get people in.

**** BENJAMIN JAMES HARRIS XN MR BORLASE
PN99

In terms of the current industrial action, what effects is that having on your company?---It is not very good with a client, I mean I heard a mention before there is a construction site, it is not a construction site it is a maintenance site. It is a running refinery, it is an old refinery that needs continual maintenance and we are not providing that service at the moment.

PN100

Are you aware as to whether that is having any negative effects on your client's operations?---Yes it is.

PN101

What is the nature of those effects?---There would be safety, loss of production, it is also not very good for the TCC as a company, to be sort of seen at the moment that we cannot control our workforce, which is evidently - evidently fairly true.

PN102

Who is that being seen by?---Alcoa.

PN103

You mentioned another contractor having been brought on site?---Yes, Sound Scaffolding are now on site.

PN104

Are you aware in terms of whether or not that has been in response to issues like this?---Yes, it is in direct response and they are working directly for Abbey Group on site, purely because Abbey Group, we could not service them because our workforce is unpredictable.

PN105

No further questions, thank you.

PN106

THE DEPUTY PRESIDENT: Thank you, Mr McLane?

<CROSS-EXAMINATION BY MR MCLANE [2.47PM]

PN107

MR McLANE: Mr Harris, you mentioned the undertaking that existed between TCC and the Union and you said that it previously existed. I put it to you that it still exists?---And?

PN108

Well did it previously exist or does it still exist?---It has existed previously, but it has not worked.

PN109

Does it still exist or does it not?---What I am saying is that in the past we have tried to use that system of calling guys in and it has not worked. There was an emergency job that needed doing so we went ahead and did it.

**** BENJAMIN JAMES HARRIS XXN MR MCLANE
PN110

Right so does this undertaking or understanding between the Union and TCC still exist or not? Because I put it to you that from the Union's side it still exists. Does it or does it not exist?---No it does not.

PN111

When did it cease to exist?---Yesterday about 3.30.

PN112

And who decided from TCC that yesterday at 3.30 that it no longer existed?---It was not - it was not actually a conscious decision that it no longer existed, what it was is a - is a need to have a job done and to have it done quickly.

PN113

Well does it exist or doesn't it exist? Because from the Union, it still exists?
---Then it exists.

PN114

Your evidence just a moment ago was that it does not as of 3 o'clock. It is one or the other?---I do not really see the relevance.

PN115

Well it is one or the other, you are under oath and you are obligated to answer the questions honestly. Now it either does or it doesn't?

PN116

MR BORLASE: Your Honour, the question that has been asked has been answered and it has been put to the witness that from the Union's perspective it still does exist and I think the witness has indicated that in that case he accepts that for the future that maybe it still does. I do not know that we can get much further with it.

PN117

THE DEPUTY PRESIDENT: Mr McLane you might re-put or rephrase the question.

PN118

MR McLANE: Yes. You said in relation to an answer from Mr Borlase that the - you used the word undertaking which I assume is an agreement?---Mm.

PN119

Between our organisation and TCC?---Yes.

PN120

Previously existed. If it previously existed when did it cease to exist?---Probably at 3 o'clock yesterday afternoon when we got the call and went and did the job.

PN121

Who did you get the call from at 3 o'clock yesterday?---Alcoa.

PN122

Did you or anybody else from TCC attempt to contact the Union?---No, not to my knowledge.

**** BENJAMIN JAMES HARRIS XXN MR MCLANE
PN123

Let me ask, was it you that decided?---No.

PN124

Thank you. Is the person that decided present in the court now?---No.

PN125

Was it Mr Iannello that decided? Mr Darren Iannello?---No, we spoke to Alan Barr.

PN126

Who is Alan Barr?---He is the operations manager.

PN127

For what?---For TCC for the Alcoa Refinery.

PN128

So did Mr Barr make that decision?---He concurred with it, yes.

PN129

If he concurred, who made the decision? It was not you?---He instructed myself and Keith Frear to go and do the job.

PN130

Who is at the top of the tree in terms of Mr Barr or Mr Iannello?---Mr Iannello.

PN131

Was Mr Iannello present earlier on today?---Yes.

PN132

Did Mr Iannello hear the evidence that was presented?---Yes.

PN133

Is Mr Iannello outside waiting to give evidence this afternoon?

PN134

THE DEPUTY PRESIDENT: Mr McLane, that might be something that might be discussed with Mr Borlase or if he is not called you could make submissions regarding it.

PN135

MR McLANE: That is all I wanted to say. On the last occasion that was discussed during the previous matter, about the incident with TCC at the same site two to three week's ago?---Yes.

PN136

Were you involved in that?---Yes.

PN137

Are you aware of whether or not anybody from TCC attempted to contact the Union on that occasion?---No I am not aware.

PN138

You are not aware that they did or not aware that they did not?---I am not aware if there was any contact.

**** BENJAMIN JAMES HARRIS XXN MR MCLANE
PN139

Thank you. Now, isn't it, I put this to you, you can either deny it or concede it, but I put to you that the case still exists between the Union and TCC, that if either situation relating to the environment or safety was to arise, such as the one that did yesterday, the Union would make an exemption and allow you to try and bring somebody in and if that failed, would have no objection to management carrying out the work. That is the arrangement that has previously existed isn't it?---Yes.

PN140

If I could just have a moment? Why on this occasion was a call not put through to the Union?---I cannot - I cannot give you an answer to that.

PN141

Just based on your own experience with TCC and the industry, how did you think the membership would have reacted to that occurring today?---I would like to think that the membership looks at it as me looking after their livelihoods.

PN142

The questions was not how would you like to think, what did you think would occur when you were told to do the job?---It was a - it was a safety issue, I did not think anything would occur because we had in the past done similar jobs because it was safety or environmental.

PN143

Even given that there is an issue the same a couple of weeks ago, your thinking was, "No one is going to take any notice"?---Well it was - it was safety and environment, there was caustic leaking out everywhere, spraying out of an elbow in a pipe.

PN144

Yes, that might be the facts, but what did you think was going to happen? Did you think that people would just say, "That is fine", and return to work?---Yes.

PN145

Even with the experience of the incident two to three week's ago?---Yes.

PN146

Why did you think they would react differently on this occasion to what they did last time?---They - they ended up coming back to work last time.

PN147

Yes, some 24 hours later?---Mm.

PN148

Are you in a position to be able to shed any light on - sorry let me cover this in two different ways. How would you say the relationship is between TCC and the Union?---I would like to think it is pretty good.

PN149

Well it is not what you would like, what do you think the relationship is?---I - I think the TCC management has a good relationship with AMWU and with the CFMEU.

**** BENJAMIN JAMES HARRIS XXN MR MCLANE
PN150

You were present this morning and heard that evidence given by organisers of the Union?---Yes.

PN151

Given that and given that TCC has been in the business for a long time, why do what was done yesterday and what was done three week's ago, given that good relationship? Are you in a position?---Personally?

PN152

Yes?---Why did I do it?

PN153

No, why the change within TCC? If you were simply directed to do it you may not know, if that is the case that is fine, but if you know I am asking you to tell us?---No, I do not know. I do not know why the TCC's views changed.

PN154

I have no further questions.

PN155

THE DEPUTY PRESIDENT: Thank you. Mr Borlase?

<RE-EXAMINATION BY MR BORLASE [2.58PM]

PN156

MR BORLASE: Thank you. Just based on the previous experience, did you think that you would get employees to come in in response to a call in this situation?---No.

PN157

This position that the Union has referred to as a procedure in these circumstances, is that something that has been agreed and recorded in the enterprise bargaining agreement?---No, there is nothing recorded, it was a verbal agreement between the unions and TCC.

PN158

Your evidence is that you do not have any faith that it would have resulted in - - -?
---No.

PN159

All right, no further questions, thank you.

PN160

THE DEPUTY PRESIDENT: Yes, thank you, you are excused?---Thank you.

<THE WITNESS WITHDREW [2.59PM]

PN161

MR BORLASE: Your Honour, that is the evidence as far as the two companies are concerned and as indicated we obviously rely on all of the other background evidence in that other matter 1229.

PN162

THE DEPUTY PRESIDENT: Yes, Mr McLane, do you wish to call any evidence or recall any witnesses that were called in the other proceedings?

PN163

MR McLANE: I just want to very briefly, and I did not intend to before, but just to deal with that last point from Mr Harris. I would just like to call Mr McCartney.

PN164

THE DEPUTY PRESIDENT: Well you can call, these are other proceedings, if there are matters that are either peculiar to these proceedings or have arisen in evidence in these proceedings and you wish to call anyone, you are entitled to call anyone you wish.

PN165

MR McLANE: Thank you, sir, I understand. No, it is only in relation to that one matter that is - - -

PN166

THE DEPUTY PRESIDENT: Well you are not really restricted.

PN167

MR McLANE: Thank you, sir.

PN168

THE DEPUTY PRESIDENT: I just want to ensure that you are conscious of.

PN169

MR McLANE: Thank you, yes. Mr McCartney.

<STEPHEN JAMES MCCARTNEY, AFFIRMED [3.00PM]
<EXAMINATION-IN-CHIEF BY MR MCLANE

PN170

MR McLANE: Mr McCartney, you have heard the evidence of Mr Harris?---I have.

PN171

In relation to what he described as the undertaking previously between TCC and the Union. You are aware of that undertaking?---Yes I am.

PN172

Are you aware or were you aware prior to hearing from Mr Harris that that undertaking no longer exists?---No I did not. I still assumed that that is in place right now.

PN173

All right. Have you personal knowledge of TCC ever seeking to utilise the undertaking?---They have in the past, yes.

PN174

Can you be specific? When was it, I am not trying to hold you to dates and hours?---I - I could not say but in previous - in previous times when they have needed it they have got it and if they have not got the labour they have done the work themselves

PN175

When you say done the work themselves, do you mean the management has been sanctioned to carry out that work by the Union?---The agreement - the agreement says if the exhaustive - if you exhaust the roster and the guys do not want to - you know you cannot get people in - and if it is environmental and if it is safety, then they can do the work.

PN176

Thank you.

PN177

THE DEPUTY PRESIDENT: Mr Borlase?

<CROSS-EXAMINATION BY MR BORLASE [3.02PM]

PN178

MR BORLASE: Thank you. So Mr McCartney, if as had occurred the last couple of times, that Mr Harris indicated that they had not been able to get any employees to come in off the roster, it would have been okay for management to have done the work in this instance?---Sorry could you repeat the question?

PN179

Yes sure. Mr Harris indicated in previous occasions that they had not been able to get employees to come in and do this work and that it would then be okay for them to be able to use managers or supervisors to do that work. On the presumption that yesterday they would not have been able to get anybody to come in, it would have been okay for them to have had the work done by a supervisory or managerial staff, would it not?---So you are asking me to presume that if they rung the staff?

**** STEPHEN JAMES MCCARTNEY XXN MR BORLASE
PN180

Yes?---If they rung their staff and if they talked to the Union and followed the process?

PN181

Yes?---If they had no one then they would be left to do the job.

PN182

Okay. So it is not really an issue at all that the staff have done the job, it is just that your complaint and everybody else's complaint is that they failed in your eyes, to phone some people?---No I think what it is is clearer the guys are upset that they did not use the processes put in place.

PN183

That is what I am saying, that they did not make those phone calls?---Well they did not use the process at all. There was no communication about it at all. There was discussion with Darren Iannello that afternoon by Mark Goldsworthy and himself, and myself and we still did not have that discussions. He did not mention it.

PN184

No further questions, Your Honour.

<RE-EXAMINATION BY MC MCLANE [3.04PM]

PN185

MR McLANE: Just something arising, sir. You just said you had discussions with Mr Iannello, at the time you had those discussions with Mr Iannello were you aware that there was a safety requirement?---No. Mr Iannello indicated to me that he was worried about the other scaffolding company doing their work.

PN186

Did Mr Iannello at any time mention that his management had to carry out some work yesterday?---I actually contacted Mr Iannello in the - in the early evening on a complaint by Kim Burton to see if they had done that work, yes.

PN187

Is that when he relayed to you that if they did not do it somebody else might have?---That - he - his - his comment to me was, when I asked him why, he said, "Because we were scared the other scaffolding company would do our work".

PN188

Nothing further, sir.

PN189

THE DEPUTY PRESIDENT: Yes, you are excused Mr McCartney.

<THE WITNESS WITHDREW [3.05PM]

PN190

THE DEPUTY PRESIDENT: Mr McLane, is that all your evidence?

PN191

MR McLANE: It is, Your Honour.

PN192

THE DEPUTY PRESIDENT: Is there anything you wish to address me on?

PN193

MR McLANE: There is, sir, and that is the nature of the orders, sir, and who should be caught by those orders. Or maybe more specifically who should not be caught by those orders.

PN194

If I go to the nature of the orders first, Your Honour, I would submit that under point 3 Industrial action to stop, that it is not necessary to make an order in the terms of (f), and that is that the AMWU must by 7 am Thursday morning distribute a letter by hand on their letterhead to each employee, and then the ….. over the page. The reason for that is it is probably impractical for the organisation to do that.

PN195

THE DEPUTY PRESIDENT: Sorry where is that?

PN196

MR McLANE: That is 3(f), Your Honour.

PN197

THE DEPUTY PRESIDENT: At 3(f)?

PN198

MR McLANE: Yes, just to say that that should be struck out. And that (h) and (i) should also be struck out, simply because it is requiring us to advise something of, advice CCC of something that they already know exists, the Chamber of Commerce and Industry. If orders are made they will be made and they will be fully aware that they are made.

PN199

It is simply just requiring the organisation to run around and waste its time and resources in my submission.

PN200

In relation to the term of the order, sir, I would say that that should be restricted to 48 hours from the time that it is made, given that the orders complied with obviously, if it is not well then, and I am not saying it will not be by any stretch of the imagination, but if it is to bring about an end to the industrial action that is currently on foot, sir, I would submit that that is all that is required. It should not then become a ….. clause by default.

PN201

THE DEPUTY PRESIDENT: Right.

PN202

MR McLANE: In relation to who should be excluded from the orders, I submit that TCC, the order in relation to TCC, should be dismissed. Mr Iannello was present through the proceedings earlier on today and was not present when the matter for TCC itself came on. Mr Harris was left to carry the weight and Mr Harris was unable to give evidence in relation to matters that Mr Iannello could have quite easily have given evidence about, if he was here.

PN203

The reason for that submission, sir, is that it is possible for - and I would submit that it is open to the Commission to make a Jones v. Dunkel inference to the effect that TCC was well and truly aware of the repercussions of their action, that there has been agreement between us that maybe was repudiated as late as 3 o'clock yesterday afternoon. Somebody within the organisation higher up than Mr Harris obviously made that decision and they have not been brought forward to give that evidence and they are not witnesses that we have ready access to, sir. They are the applicant, and they are witnesses that the applicant has ready access to and had them here this morning but not here available at the crucial and important time, in my submission.

PN204

Now, I make that submission, sir, because - and without being too much of a bore - I think it was Lord Denning who really established the principle of equity and there is four or five criterion that have to be met when people seek equity. One is they have to come with clean hands and not in any way be involved in anything that may have participated the action that they seek relief from. That is a doctrine that is well established, sir, and equity forms a large plank of the Commission.

PN205

It is just quite inexcusable in my submission, sir, for people to take action that they know will bring about the sort of result that has been brought about and then come racing in and say in effect, "Look at this big, evil monster that is beating us up". You know, "We are just standing around and minding our own business and they whacked us". There may be some grounds for some of the applicants to make that sort of a defence, but it is certainly not one, in my submission, that is open to TCC. As recently as two or three week's ago on the site, the same people, they were involved in it, they then chose to just you know, for whatever reason, embark on a course of action, and that is fine, gentleman's agreement in industrial relations are everything, just as are written agreements. If they have chosen to breach that or not to be bound by those understandings anymore, given the relationship that has existed for a long time, I think it is only reasonable that Mr Iannello could have relayed that to the organisation, rather than us hear about it from the witness box.

PN206

For all those reasons, sir, and given where these things can end up and what the making of the section 77 order does in relation to - in my language - restricting the rights of unions to effectively operated, I know that I will get some disagreement all around the place, and probably from the Bench on that, but they are a serious step, sir, they do lead to - - -

PN207

THE DEPUTY PRESIDENT: You will not get any disagreement from me that it is a serious step.

PN208

MR McLANE: And for all those reasons, sir, they should not be made in relation to TCC. If they chose to you know, get in the gutter, well fine we are in the gutter with them. That is their choosing, sir, and it is a bit rich to come along here and say, "Please protect us from these evil unions". That concludes my submissions, sir.

PN209

THE DEPUTY PRESIDENT: Yes, Mr Borlase?

PN210

MR BORLASE: Thank you, Your Honour. Your Honour, I would adopt the submissions that were made on behalf of United KG in matter 1229 in respect of this matter. And extremely clearly, obviously, where Western Construction is concerned.

PN211

What I will say in addition to that though in terms of TCC is that what the evidence has shown is that there has been a complete disregard by the union to the formal dispute resolution procedure contained in the registered agreement. Their excuse strikes me as being one that their other actions should be ignored and that it is quite okay for them to be actually carrying out this action and to be drawing in a range of other companies into this whole matter as well.

PN212

But it actually goes further than that, because the evidence that is also clearly before the Commission, is that there are other reasons as well why these people are out. It goes beyond just the scaffolding matter, it continues to be in respect to the Abbey Group matter, as the evidence has been before you. And it continues to be in respect of what is claimed to be higher rates as well for what has been referred to as the liquor burner project. And we say that all of the actions are totally indefensible on the part of the Union and the employees in respect of this matter.

PN213

The major substance of this issue is not being attacked, that it was a genuine safety issue, the urgency of the requirement of the work to be performed has not been lessened in any way, shape or form. It is our submission that the work that needed to be done was work that was very urgent, it was of a safety nature, it had environmental consequences associated with it, as I am instructed, and the time frame and based on the previous experience of the company in terms of actually getting anywhere with this so called gentleman's agreement has proven to be absolutely worthless in the past and not worth following, if it ever existed. So we say for all of those reasons that these orders should issue.

PN214

In respect of those parts of the order which has been submitted by Mr McLane should be struck out, we obviously say that they ought remain, they serve a practical purpose and that is to ensure no uncertain terms for employees who are members of the AMWU as to what they are required to do. The Union is a large union with considerable resources available to it and they ought employ those resources to have the action cease which is quite illegitimate in our view. And so all of those points should remain.

PN215

The points under (h) and (i) are also relevant matters which should remain, because that is a way of ensuring for all concerned that all of the steps have been complied with and that the bona fides of the union are guaranteed in that process. And we say in that instance (h) and (i) of point 3 of the orders sought should remain in place. May it please, Your Honour.

PN216

THE DEPUTY PRESIDENT: Yes. Thank you. With respect to these matters before me, namely C20051230 and C20051232, I am satisfied that the circumstances and jurisdiction exists that allow the Commission to issue orders if the Commission considers it appropriate to issue orders.

PN217

I find that because industrial action I find the evidence establishes is occurring with respect to work covered by certified agreements and it is clear that that industrial action is not protected action. With respect to Western Construction Company, I intend to issue interim orders substantially of the nature that the company of the application, I will make some modifications once I have further - I may make some modification once I have further considered Mr McLane's submissions with respect to some elements of the order.

PN218

I will make a determination with respect to the applications once I have further deliberated on the issues and further considered the evidence and that determination will have the effect of either an order issuing or not issuing, but once that determination is made the interim order will lapse by operation of the Act.

PN219

With respect to Total Corrosion Control, it is not my intention to make an interim order at this time. Whether I make an order at all, whether it be interim or final, I will consider and advise the parties in due course. I should advise that given the matters this morning, Mr Borlase and Mr McLane, that nothing has arisen this afternoon that would cause me to alter my inclination to issue orders with respect to application 1229, C2005/1229 with respect to United KG. I will adopt the same course of action with respect to United KG Pty Limited that I have with respect to Western Construction, namely the issuance of interim orders.

PN220

I will adjourn on that basis, I would request that the union representatives and officials remain behind and it is my intention to have an off the record discussion with them, unless you have got an objection to that Mr Borlase? I will adjourn on that basis.

<ADJOURNED ACCORDINGLY [3.21PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

FLAVIO MOSCIO, SWORN PN13
EXAMINATION-IN-CHIEF BY MR BORLASE PN13
CROSS-EXAMINATION BY MR MCLANE PN55
RE-EXAMINATION BY MR BORLASE PN62
THE WITNESS WITHDREW PN65
BENJAMIN JAMES HARRIS, SWORN PN66
EXAMINATION-IN-CHIEF BY MR BORLASE PN66
CROSS-EXAMINATION BY MR MCLANE PN106
RE-EXAMINATION BY MR BORLASE PN155
THE WITNESS WITHDREW PN160
STEPHEN JAMES MCCARTNEY, AFFIRMED PN169
EXAMINATION-IN-CHIEF BY MR MCLANE PN169
CROSS-EXAMINATION BY MR BORLASE PN177
RE-EXAMINATION BY MC MCLANE PN184
THE WITNESS WITHDREW PN189