C2005/1661, Transcript of Proceedings [2005] AIRCTrans 203 (31 January 2005)

1800 534 258

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 10083

COMMISSIONER MANSFIELD

C2005/1661

s.170LW - application for settlement of dispute (certification of agreement)

SPI PowerNet
and
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
(C2005/1661)
SPI PowerNet/ Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia Enterprise Bargaining Agreement 2004

MELBOURNE

3.00PM, MONDAY, 17 JANUARY 2005

PN1

MS L RUSSELL: I seek leave to appear for SPI PowerNet and appearing with me is MR G BROOMFIELD.

PN2

MR W HAYES: I appear on behalf of the CEPU Electrical Division and behind me is the delegate, MR M. DELANEY.

PN3

THE COMMISSIONER: Thank you, Mr Hayes. Any applications for intervention at all other than the immediate parties? No, good. Well it's an unexpected pleasure to see you both here on the first day that I am back. Could I wish everybody a happy new year and hope the year goes well for all concerned. Now, Ms Russell, it's your application.

PN4

MS RUSSELL: Yes, Commissioner.

PN5

THE COMMISSIONER: Is there any objection Ms Russell appearing, Mr Hayes?

PN6

MR HAYES: No.

PN7

THE COMMISSIONER: I take that there isn't.

PN8

MR HAYES: No objection, but I will be advising the Commission that I will be seeking an adjournment. I can do that now or I can wait to hear what
evidence - - -

PN9

THE COMMISSIONER: I think we will wait until Ms Russell gets her position on the record. Ms Russell, what I was proposing to do was to allow each of the parties to put an outline of the situation on the record and then propose to go into conference, if that is acceptable to the parties, and we will take it from there.

PN10

MS RUSSELL: Yes, Commissioner. The situation has probably changed slightly since - well, it's changed significantly from when we first notified this matter so it may well be that - - -

PN11

THE COMMISSIONER: For the better Ms Russell?

PN12

MS RUSSELL: For the better at the moment, Commissioner.

PN13

THE COMMISSIONER: Good.

PN14

MS RUSSELL: Which is always good, but it may well be that given Mr Hayes's indication of an adjournment, that might actually suit both parties, but perhaps I should just explain what was the situation at the time we made the application on Friday and what appears to be the situation today. First of all, Commissioner, thanks very much for listing this matter at short notice and on your first day back and a happy new year.

PN15

THE COMMISSIONER: An unexpected pleasure, Ms Russell.

PN16

MS RUSSELL: Commissioner, yes, as I said to Mr Hayes, I had thought with the certification of the agreement perhaps I wouldn't get to see you so early in the new year, but these are the way these things work. Commissioner, the reason that we notified this matter to you on Friday was that SPI has engaged Silcar to perform some highly specialised work at its Port Melbourne terminal facility. Silcar is a contractor that SPI has used on a number of occasions previously. The work that's being undertaken at West Melbourne, not only is it highly specialised, but also it is time critical in that the West Melbourne terminal station actually provides about 70 per cent of the load for the Melbourne CBD.

PN17

That means obviously that when work such as this is being done down there, the terminal itself, there has to be an outage and obviously because of the area that it services, and because we are in the summer period, the timing of that work needs to be carefully managed to ensure obviously that there is no disruption. Now, Commissioner at the time that we notified the matter to you, the indications from the CEPU were that if this work commenced today, that there was likely to be a picket and that the contractors would not be able to perform that work. Now, Commissioner, you would understand that had that occurred, and fortunately it hasn't, that would have been a matter of very serious concern to SPI.

PN18

SPI had difficulty understanding what the problem was with Silcar given that, as I said, it's an existing contractor, who has performed work for SPI in the past and also, I understand that Silcar had in fact reached an agreement and a memorandum of understanding with the ETU with respect to its own employees. Statutory declarations had actually been filled in, but that the matter was delayed while the parties considered the impact of Electrolux. I understand and Mr Hayes is probably in a better position than me to confirm this, but what then happened was rather than the parties then moving forward, perhaps similar to the way SPI and other parties have in terms of trying to see what they needed to do with the agreement in order to have it certified, that there was then a new demand made on Silcar which was for what I think has colloquially been called the five year ETU agreement.

PN19

So Commissioner, in terms of when we made the notification, SPI understood that it was likely to have a situation where the contractor may not be able to perform work because of the picket. As I have said, fortunately that hasn't occurred and the work has commenced around lunch time today. Obviously, SPIs hope is that that will continue to be the situation and the work will be performed and completed. I understand the work itself should only take about one to two days and then there's a further period of about a week while commissioning takes place. So Commissioner, in terms of - - -

PN20

THE COMMISSIONER: Does that follow on immediately after the one to two days?

PN21

MS RUSSELL: I will just get - yes, Commissioner.

PN22

THE COMMISSIONER: And Silcar employees will be on site undertaking that commissioning?

PN23

MS RUSSELL: That's right. That's correct, Commissioner. So, the situation at the moment is that that work is taking place. As I said, it's certainly SPIs hope that that will continue to be the position. In that situation, Commissioner, we don't see that at this stage whether there's anything that we would be seeking from the Commission other than that if the threats that have been made do manifest themselves then obviously we would be seeking to have this matter re-listed at short notice, but at the moment the work is being done and, as I say, we hope that continues to be the situation. If the Commission pleases.

PN24

THE COMMISSIONER: Good. Thank you, Ms Russell. Mr Hayes, Ms Russell has made the point that there is no picket currently seeking to prevent Silcar employees from engaging in their contract work with SPI. Can you inform the Commission about whether that situation is likely to change in the immediate future? Also, Ms Russell has mentioned that there in an in principle agreement between Silcar and the ETU. Is that in principle agreement, with exception perhaps of this three year, five year issue, a problem that is likely to become a major concern to the parties in the immediate future?

PN25

MR HAYES: Commissioner, just a couple of issues the company are relying on here which aren't correct. The issue about the picket line is based upon my understanding that Silcar do not have an enterprise agreement with this union which we would say ought to be the - and quoting out of the use of contractors clause, employee relations practices and policies. They don't have, in my eyes, an enterprise agreement that allows them to undertake work at the terminal station that's been mentioned by Ms Russell.

PN26

THE COMMISSIONER: Which is?

PN27

MR HAYES: Port Melbourne. In the CBD.

PN28

THE COMMISSIONER: In the CBD.

PN29

MR HAYES: They have negotiated, my understanding, an agreement that covers them in the Morwell workshops and the scope of that agreement and the application of that agreement and the parties bound to that agreement reflect that. It's not an agreement that we would see as I said is the practices and policies that we would rely upon to allow this contractor to be on an agreed list between ourselves and SPI which is what's required under the use of contractors. The agreement in the Morwell workshop to my understanding (a) is not certified, (b) is not signed by the State Secretary of our organisation or someone of similar authority and I exclude organisers from that.

PN30

THE COMMISSIONER: Yes, but the Morwell workshop agreement, Mr Hayes, you're not disputing that there has been an agreement reached on at an principle level at least for the Morwell workshop, but you're saying that that doesn't apply to contract work say in the CBD area?

PN31

MR HAYES: I am disputing it insofar as I would have to get further instructions off the local organiser.

PN32

THE COMMISSIONER: Ye, as to where that is. So you're not disputing it in the sense that you know that what Ms Russell has said is wrong, you simply haven't got the required information at this stage from your local people?

PN33

MR HAYES: That's correct, but having said that, from what I see of the document, it does not include works undertaken outside of Morwell workshop which leaves Silcar, the company, without an enterprise agreement as far as I'm concerned.

PN34

THE COMMISSIONER: Are there serious shortcomings in the draft or in principle document that you're aware of?

PN35

MR HAYES: Commissioner, I haven't been able to look through it in that great a detail to see that, but certainly the scope application parties bound, I have grave concerns about on the surface of looking at that agreement only because, as I have said, it's limited to, the way I interpret it, the Morwell workshops, not work undertaken outside of that. So that is a problem and if it is proven, or if Silcar, and I am assuming that Silcar is sitting in the audience, if it is said by Silcar that that agreement applies outside of the Morwell workshops, well, then I need to get Silcar to confirm that in writing to our organisation if that's the case. It doesn't read that way according to the document I have received, hence the issue that I have with Silcar being engaged.

PN36

THE COMMISSIONER: Now, Mr Hayes, last year your organisation and the electrical contractors organisation reached an in principle document which set out the arrangements for contractors working in the industry. Is that the sort of document you are looking for from contractors with SPI?

PN37

MR HAYES: My understanding is the document that was forwarded to Silcar was slightly different to the one which was negotiated within the power industry framework but insofar as it - - -

PN38

THE COMMISSIONER: But given that Silcar wants to work on this particular project for SPI, are you saying that the NECA type agreement is what you would be saying they should be applying?

PN39

MR HAYES: The document that we would be applying would be the document that Silcar requested off us in terms of viewing a document, and we forwarded that document to them last week.

PN40

THE COMMISSIONER: Last week?

PN41

MR HAYES: That's correct. Now, Commissioner, the matter as my understanding is as of Friday was in dispute, hence the application today on behalf of the company. The interpretation by the company of the agreement that they think is applicable in these circumstances, I say is incorrect. For the company to allow Silcar to undertake work is a breach and clearly inconsistent with what the disputes resolution procedure is. As far as I am concerned, the parties are still in dispute. The agreement does stipulate that if the parties agree - if there is a dispute the parties agree the status quo at the time of the commencement of the dispute shall prevail and that is that Silcar should not be on site until this matter is sorted out. This is clause 11 of the existing certified agreement that was talked about certified last, 16 December:

PN42

If a dispute arises in relation to work practices for the entire period until resolution the company will revert to the work practices in place prior to the dispute arising.

PN43

THE COMMISSIONER: So, you are saying, Mr Hayes, that there is a difficulty in relation to Silcar being used as a contractor in this particular job that is being spoken of beyond the Morwell workshops environment?

PN44

MR HAYES: That's correct.

PN45

THE COMMISSIONER: And you also say that you don't believe that the company can rely on the in principle agreement which has been reached. Let me describe it that way, for the Morwell workshop to do this work in the CBD area you would say that instead, as I am hearing you, that a document along the lines of the NECA agreement, which was forwarded to Silcar last week, is what would be necessary and, so you are saying also that the disputes procedure provides that the status quo should be maintained until this matter is resolved adequately.

PN46

MR HAYES: That's correct.

PN47

THE COMMISSIONER: Okay. Now, I understand all that.

PN48

MR HAYES: Commissioner, it's not good enough for SPI to come here today and say we don't have a dispute, or a dispute hasn't occurred when they lodged a dispute application. Nothing has changed since last Friday between myself and this organisation that suggested the dispute is resolved and then in the meantime to go ahead and engage Silcar and allow them to go on site.

PN49

THE COMMISSIONER: Well, they may not have been aware, Mr Hayes, just the detail of the ETU position. I am not sure whether you have advised them of that either verbally or in writing.

PN50

MR HAYES: They were advised Friday in writing that we had a dispute with them engaging Silcar and they responded later on to that basically saying that they acknowledged the dispute and they will lodge a dispute notification with the Commission recommending the matter should be heard on Monday and here we are.

PN51

THE COMMISSIONER: Sure okay. Good. Well I have heard you, Mr Hayes, and I understand your position. I think I understand SPIs. Do you want to put anything else on the record, Ms Russell?

PN52

MS RUSSELL: Well, Commissioner, perhaps just so that we are clear, I don't think I said at any stage that we didn't have a dispute. What I said was that in terms of what we might be seeking from the Commission, in a situation where the work is continuing, that it is not anything that we are seeking, Commissioner. In terms of the status quo, our position is fairly simple on that. Silcar has been performing work for SPI for a number of years. It has been on the list between the ETU and SPI. It has performed work for SPI, as I have said, for a number of years most recently, I understand, in about the middle of last year.

PN53

THE COMMISSIONER: Including work on projects similar to the one that is being spoken about, Ms Russell?

PN54

MS RUSSELL: Yes, Commissioner. I understand at Eildon and also at Hazelwood similar work was done. Commissioner, in terms of the actual - apart from that issue, obviously the clause in the EBA doesn't say anything about contractors having to have enterprise agreements in place. It talks about sound employer relations policies. My understanding is that there is no dispute between Silcar and its employees. There is no suggestion of bargaining periods or protected industrial action or anything else. So in terms of there being any disputation between the employees and their employer, there's no suggestion of any of that occurring and SPIs view is that Silcar has demonstrated that it has good employee relations practices in place.

PN55

As I say, it has been performing work for SPI previously. So just to clarify what our position is, we notified the matter on the basis that we understand that the ETU says that its position is that unless Silcar has the enterprise agreement that it's seeking, and I understand it is, Commissioner, quite a bit different to the one that was reached for the electrical contractors, but it's one that I have seen in other circumstances that's about 200 pages long and has about three parts to it and has some quite different clauses from what I understand the electrical contractors entered into. But, that's probably not - - -

PN56

THE COMMISSIONER: Is that additional detail meant to cover the Electrolux situation, Ms Russell, or is it all additional and new matters?

PN57

MS RUSSELL: Commissioner, -I have only looked at a couple of areas in detail. It definitely has some different provisions which to me would not appear to be necessary for Electrolux, but obviously the ETU might have a different view, but there are some different provisions in that that would not appear to be rewording that the parties have had to undertake as a result of the Electrolux decision, but obviously, I mean it's a matter for Silcar what their attitude to all of that is. From SPIs point of view, we say that we have got a contractor we have used for a number years, we don't see any reason why that contractor can't undertake that work. Obviously, the ETU has an issue with that contractor that no doubt they will try and sort out, but as I say, SPIs concern is obviously getting the work completed.

PN58

THE COMMISSIONER: Just to clarify one thing, Ms Russell. You're saying that the work SPI wants the contractor to do is time sensitive and it is urgent work which needs to be done in the immediate future.

PN59

MS RUSSELL: Yes Commissioner. Because it's live work that requires an outage, it means it has to be carefully programmed because this terminal does supply 70 per cent of the CBD, it's not just a matter of saying okay, we can't do the work today, you know, can we have an outage next week. It's something that has to be pre-planned for a particular period and secondly, because obviously it is much more difficult to take any power off line as we get into, hopefully, from my point of view, the warmer part of summer. As we do move into what is now sort of traditionally the warmer part of summer, it is much more difficult to have that outage.

PN60

So, for those two reasons it's time for - and probably the third reason is, Commissioner, as I understand, this particular equipment that is supplied by Siemens, the work is supervised by Siemens' engineers from Germany and they will be arriving as well to supervise. So for those three reasons the work is time critical, Commissioner.

PN61

THE COMMISSIONER: Good. Thanks Ms Russell. Mr Hayes, I propose to go off the record at this stage if that's okay with you and Ms Russell. Good. We will go off the record and go into conference.

<NO FURTHER PROCEEDINGS RECORDED [3.20PM]