C2005/4820, Transcript of Proceedings [2005] AIRCTrans 2090 (7 October 2005)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 12948-1

COMMISSIONER EAMES

C2005/4820 C2005/4824

TECHNIP OCEANIA PTY LTD
AND
CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION
s.99 - Notification of an industrial dispute
(C2005/4820)

VETCO AIBEL AUSTRALIA PTY LTD
AND
CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION THE AUSTRALIAN WORKERS’ UNION COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA-ELECTRICAL DIVISION SOUTHERN STATES DIVISIONAL BRANCH CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION- CONSTRUCTION AND GENERAL DIVISION, VICTORIAN FEDFA DIVISIONAL BRANCH
s.99 - Notification of an industrial dispute
(C2005/4824)

MELBOURNE

2.02PM, MONDAY, 26 SEPTEMBER 2005

Hearing continuing

PN1

MR R LEVIN: I seek leave to appear on behalf of the applicant, Vetco.

PN2

MR R MATHIESON: I appear for Technip Oceania Pty Ltd.

PN3

MR M SOLLEY: I appear for the AMWU.

PN4

MR G BORENSTEIN: I appear for the CEPU along with MR GRAY, an organiser for the CEPU and we just wish to reserve our right to object to
Mr Levin.

PN5

THE COMMISSIONER: Yes, we are going to get to that in a minute, keep your powder dry, you're right.

PN6

MS E WALTERS: I appear for the CFMEU and with me is MR C STEWART.

PN7

MR C WINTER: I appear on behalf of the AWU.

PN8

THE COMMISSIONER: Is there any objection to the appearance of Mr Levin?

PN9

MR BORENSTEIN: I will reserve my right. I don't wish to take it any further at the moment but I understand it's just going to be some preliminary points made and I've got no objection to that but if it's taken further - - -

PN10

THE COMMISSIONER: I hear you, Mr Borenstein.

PN11

MR BORENSTEIN: Thank you.

PN12

THE COMMISSIONER: Mr Levin.

PN13

MR LEVIN: If the Commission pleases. Yes, I have said to my friend that at this point that I will give you a background rather than submissions and then the parties I think intend to go into conference with your permission.

PN14

THE COMMISSIONER: I think that's a good idea, yes.

PN15

MR LEVIN: Where we're at with this matter, I might hand up three documents, the certified agreement binding Vetco and the five - well, the unions, the letter of offer from Vetco to employees and a note dated 2 September 2005 which is headed Otway Gas Plant Construction Project 2005 Site Agreement which is what this is about.

PN16

THE COMMISSIONER: All right. Can I also ask at the outset, I take it from the applications that they're both related, is there any objection to them being formally joined together so that we deal with them as one issue?

PN17

MR LEVIN: I think it would be a good idea if there's no objection.

PN18

THE COMMISSIONER: All right. If there's no objection then I will formally join the two matters. In relation to the agreement I won't mark that as such because it is a Commission document.

EXHIBIT #L1 LETTER OF OFFER
EXHIBIT #L2 NOTICE TO CONTRACTORS

PN19

MR LEVIN: Thank you, sir. Where we're going with this is that there's two issues, there are some overtime bans in place which out of today we would like either agreed with my friends to be lifted or if not recommended be lifted by yourself, and secondly, to seek your assistance in implementing the agreement in L2 which just to give you a short context was an agreement that was agreed upon between all of the five organisers and the three delegates and the employers subject to a couple of details and those details I think will occupy your time in conference.

PN20

This is a construction of a gas plant, sir. It started build in November 04. Its planned completion is February 06 and it's currently running a few months behind. Vetco employs 96 direct employees, give or take one or two, and does the mechanical and electrical installation work. Vetco subcontracts to companies who in turn have approximately 100 employees doing civil works and earthmoving works mainly. Vetco is contracted by Technip, the builder, and Technip is in turn contracted by Woodside. Technip has no direct employees but has subcontractors other than Vetco with approximately 70 employees.

PN21

So other than Vetco's employees the next biggest employer is probably Negri which is the earthmoving company. It has approximately 25 employees, so Vetco about 100, Negri about 25. The EBA was certified in April 05 and expires on
30 June 06 and the parties to that are Vetco and the various unions that are represented here today including the CEPU - I beg your pardon, the plumbing and electrical divisions of the CEPU, also the AMWU, AWU and AMWU. The ETU delegate Graham Dunsmuir is employed by Vetco and Vetco also employs Paul Abrahams, the AMWU and the other rep on site, the CFMEU delegate is Mick Laidlaw who is employed by Negri and the five organisers who are all present. That's relevant because of the discussions that led to the agreement in L2.

PN22

The representatives here by way of explanation is we have got the Technip group here and also the site managers and the IR managers for both of those organisations. Now, there's been a range of EBA and other condition issues that have been bubbling around the site. Most are claims seeking additional benefits for employees some of which are argued by some of the employees to be entitlements that are already in existence under the EBA and others are ones which are not disputed as being things that the EBA doesn't give. Vetco's position was that it then sat down and worked out a range of issues including one thing it wanted in particular which is a different calendar for RDOs and that's a central issue in the matter.

PN23

The RDO calendar, there will be reference to calendar A and calendar B and calendar A, my understanding is, is a calendar that is the AMWU - CFMEU, I beg your pardon, CFMEU calendar, and the calendar B is the one prepared by the company and on which it believed it had agreement. In short, the deal has a number of elements and there was meetings on the 1st and 2 September this year, sir. When it was presented by the delegates to a mass meeting of employees of all of the subcontractors the package was voted down and was a very narrow vote. The meeting was authorised so there was no industrial action involved in that meeting as such, but there were a number of motions that came out of that.

PN24

The company had hoped that it would simply be that the agreement reached between the organisers, the three delegates and the company would be voted up. I'm instructed it was so close a vote that they actually had to do a hand count, but some people felt strongly and obviously voted against it. And the position put was that the calendar B be rejected by the employees, that was the majority, that the site work 56 hours per week as per the union calendar and no RDOs and no working on union lockdowns and in relation to the Christmas break everyone finish as per the union calendar, ie. 22 December and return 15 January and that's a critical issue in this, the Christmas break, is it the three weeks as per the CFMEU calendar or not.

PN25

The third was that management should agree to and pay all of the items which some of the employees felt were outstanding which the employers say are not entitlements. With those resolutions, in accordance with instructions from their members there were discussions from those representatives and the company and the company said that it would come back tomorrow, but unfortunately on Wednesday last week that was when the votes took place and there was a walk out, after 11.30 on the Wednesday when the company wouldn't agree to the matters that were put to it and the employees returned to work on Thursday They are still at work but the overtime ban is still in place.

PN26

I am instructed to recognise the efforts of the delegates and of the organisers to get the agreement voted up. Vetco believes that it has a deal. Some of the detail apparently needs to be worked out and it wants the industrial action limited - I beg your pardon, lifted and to formalise the deal. The matters that are before you, if I might just without going into any detail because I'm sure there will be discussions, if you could look at the document L2, the ultimate calendar is the calendar B. The arrangement of working hours is something which I am instructed is of mutual benefit to the parties to differing extent but both parties have something to gain out of that I'm instructed.

PN27

The issue of the third point, the crib time, could be characterised as a claim being made by employees which the employer considered not to be a valid claim under this agreement is just simply recognition that it's not being pursued, it's being dropped. But the night shift, currently the award penalties are at various levels but certainly none of them are at 100 per cent and that is the give which is a significant cost give by the employer to get the calendar up. That is 100 per cent loading rather than the award loadings.

PN28

The fifth item, site allowance, I am instructed is also a significant cost give by the employer. Clause 22 of the certified agreement references the site allowance and the demand is instead of for it being - well, it's not all purpose in the agreement and the proposal is it be made all purpose and backdated to approximately, I'm instructed, April. Fares and travel is a provision in the certified agreement in clause 10 and it doesn't provide - it's a flat rate the amounts put in there, but the $50.30 for travel over 40 kilometres has no percentage increase and under this agreement there would be the increases of 2.5 per cent each six months and that's, I'm instructed, also a significant cost for the company but part of the deal.

PN29

The next item is a tool allowance, I'm instructed the $22.50 in the EBA in clause 20 is not all purpose and this is a demand for it to be all purpose. The next item, pressure welders, some disagreement about who is to be classed as a pressure welder and when and the end result be that simply all of the welding be at 110 per cent. I'm instructed under the contract there is no pressure welding that is part of my client's work but again as part of the exchange to get the calendar B up and in item 9 there was a claim for a trades certificate allowance. The AMWU has such an allowance but under the EBA clause 20(a)(1) specifically says that all allowances are absorbed and clause 9 is recognition of that claim not being pursued.

PN30

With that summary, unless my friends want to say anything on record, we would like to go into conference. If the Commission pleases.

PN31

THE COMMISSIONER: All right, thank you. I am going to hear from you people, what do you think about that proposal?

PN32

MR SOLLEY: If the Commission pleases, some of the things that has been said we don't quite agree with. Firstly, the issue that when we did have the mass meeting there last week, last Wednesday I think it was, that the members requested to know a number of things and what was decided was that the delegates go and approach the company to get a response in relation to a number of these things and basically we were told that there wasn't going to be a response until Monday. So obviously that led to the issue getting inflamed and also a number of those things that were brought up in relation to things like the site allowance, the excess travel, et cetera, et cetera, we believe that we had a clear understanding in relation to those issues, primarily because when we sat down and negotiated the agreement it was going to be based on a previous project that was built just last year, that being the ..... Project Gas Plant.

PN33

Basically at those negotiations said that they wanted basically to mirror that and these things like the site allowance, et cetera, were actually paid as all purpose,
et cetera. We acknowledge that they probably could have been worded better in the agreement but we had a clear understanding of what it was actually to apply.

PN34

THE COMMISSIONER: Yes, all right. Anyone else?

PN35

MR BORENSTEIN: Commissioner, we support those submissions. We say there was no - the assertions of there being an actual agreements on these issues is not the case. I'm happy to go into more explanation of that conciliation but we certainly dispute most of the things said by Mr Levin and we have a different version of what has occurred.

PN36

THE COMMISSIONER: I shouldn't have got excited there for a minute.

PN37

MR BORENSTEIN: Yes. But we are happy to explore those things in conciliation, Commissioner.

PN38

THE COMMISSIONER: All right. Anyone else want to put anything on the record?

PN39

MS WALTERS: We would support those submissions.

PN40

MR WINTER: We would probably go one step further and say that there are no bans that were complying clearly with the agreement. We are complying with the RDO clause of the agreement and we are complying with the hours clause of the agreement. The hours clause talks about overtime and does talk about reasonable overtime, et cetera, and it talks about ordinary hours and we believe we're complying with that clause.

PN41

THE COMMISSIONER: So there's no overtime ban?

PN42

MR WINTER: Well, if you look at the overtime clause of the agreement it stipulates what gets in relation to overtime, but we would argue that it also stipulates what are ordinary hours and we would argue that there are no provisions there in the agreement that would state that overtime must be worked.

PN43

THE COMMISSIONER: All right. Yes, Mr Levin.

PN44

MR LEVIN: I didn’t want to go there but my friend has. I just refer you then to the definition of industrial action in the Act in section 4 and certainly the ceasing of working of overtime is performance of work in a manner different from that in which it's customarily performed and it's also consistent with the secondary definition of ban, limitation or restriction on the performance of work. The standard Vetco employment contract which I have handed up which is L1 contains a provision states that the employee understands and agrees that overtime will be offered as required and indicates that the employee, quote:

PN45

Agrees to work reasonable overtime as requested by the company from time to time.

PN46

And also the clause refers to the general construction practice of working 36 hours plus overtime of up to 56 hours per week and Vetco employees are specifically asked to acknowledge before accepting the contract that the amount of overtime is reasonable and they do so in writing. The EBA refers to the hours of work provision clause 11 which does refer to the rate and it says that that's to be read in conjunction with the NECA Award, the on site award and that has a provision in clause 26 that says:

PN47

An employer may require an employee to work reasonable overtime at overtime rates.

PN48

So on that basis we say there is industrial action and there is a ban. If the Commission pleases.

PN49

THE COMMISSIONER: All right. Well, in the light of what's been put I think there is some value in us going into a conference at this stage. Depending on the outcome of those discussions should it be thought necessary by any of the parties to put further submissions on the record we can do that in due course. We will adjourn for the time being.

<SHORT ADJOURNMENT [2.21PM]
<RESUMED [3.16PM]

PN50

THE COMMISSIONER: I have convened a conference with the parties related to the two notifications relating to the Otway Gas Plant Construction Project. The notifications indicated that there were a number of issues related to both the work calendar and other issues such as the site allowances, excess travel, tool allowances, RDO calendars and other issues. As a result of the conference much was achieved and agreement around the interpretation of a number of these issues has been reached. However one of the issues, in particular the alternate calendar situation, is still as yet unresolved, although some significant progress has been made in relation to how that might work.

PN51

The union parties to these proceedings have indicated that they wish to have some discussions with their delegates in relation to the matters which have been canvassed this afternoon in conference and Mr Levin on behalf of his clients has indicated the company's desire to also give further consideration to the interpretation of how this alternate calendar proposal might work. The Commission is concerned that there was a report of alleged industrial action that was still taking place on the site. The Commission wishes to indicate that any refusal to work overtime or to place any bans or work in any way contrary to the terms of the current EBA should not occur.

PN52

It is most unnecessary in this particular situation because of the progress that has already been made in relation to these issues. I have agreed to allow the parties to have some further thought and discussion in relation to these issues but in my view it must be settled quickly and to that end I am reconvening the parties at a hearing tomorrow, 27 September, which I will set down for 12.30 pm. Again I trust no further industrial action will take place. The parties have progressed very well in my view in terms of resolving the outstanding issues and I am hopeful that at the report back hearing tomorrow we may be in a position where these issues can be resolved.

PN53

But I do indicate to the parties because of the nature of this project and the fact that in my view it is important for all of the parties concerned that these issues be sorted out sooner rather than later in the mutual interest of all of the parties, that if necessary I will take further submissions and have this matter either determined or for me to issue a recommendation if that was the way seen to go forward in order to have this mater resolved. I wish the parties well in their further discussions and consideration and this Commission will adjourn until 12.30 pm tomorrow.

<ADJOURNED UNTIL TUESDAY, 27 SEPTEMBER 2005 [3.20PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #L1 LETTER OF OFFER PN18
EXHIBIT #L2 NOTICE TO CONTRACTORS PN18