C2005/5133, Transcript of Proceedings [2005] AIRCTrans 2244 (27 October 2005)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 13180-1
13182-1
13183-1

COMMISSIONER RAFFAELLI

C2005/5133 C2005/5137 C2005/5138

MARITIME UNION OF AUSTRALIA, THE
AND
AUSTRALIAN AMALGAMATED TERMINALS P&O PORTS LIMITED PATRICK STEVEDORES HOLDINGS PTY LIMITED
s.99 - Notification of an industrial dispute
(C2005/5133)

P&O PORTS LIMITED
AND
MARITIME UNION OF AUSTRALIA, THE
s.99 - Notification of an industrial dispute
(C2005/5137)

P&O PORTS LIMITED
AND
MARITIME UNION OF AUSTRALIA, THE
s.127(2) - Appln to stop or prevent industrial action
(C2005/5138)

SYDNEY

2.28PM, FRIDAY, 14 OCTOBER 2005

Hearing continuing

PN1

THE COMMISSIONER: Yes. I have called all the matters. I won’t necessarily join them but perhaps if we start with the appearances. Mr Fox?

PN2

MR J FOX: I seek leave to appear on behalf of the P&O Ports Limited in each of the matters listed before the Commission this afternoon.

PN3

MR D SLOAN: I seek leave to appear on behalf of Australian Amalgamated Terminals in respect of matter 5133 of 2005.

PN4

MR L SMITH: I am from Patrick Corporation appearing for Patrick Stevedores Holdings Pty Ltd in matter 5133.

PN5

MR A SLEVIN: I appear for the union in all three matters - I seek leave to appear for the union. There’s no objection to legal representation from our part.

PN6

MR C RAPER: I seek leave to appear on behalf of the New South Wales Government.

PN7

THE COMMISSIONER: Right. Well, leave is granted to lawyers - sorry.

PN8

MS A HUGHES: I appear for the Unions New South Wales and I seek leave to intervene in this matter on behalf of .....

PN9

THE COMMISSIONER: Yes, okay. What’s the attitude of the employer parties first, either individually or together to the Premier’s Department and to Unions New South Wales’ appearances?

PN10

MR FOX: We have no objection for today’s purposes.

PN11

MR SLOAN: That is also our position.

PN12

THE COMMISSIONER: Mr Slevin?

PN13

MR SLEVIN: Yes, no objection to any of the applications.

PN14

THE COMMISSIONER: Okay. Well, leave is granted to Mr Raper and Ms Hughes. Yes, Mr Fox - yes.

PN15

MR FOX: Thank you, Commissioner. Commissioner, perhaps I can outline the background to the section 99 application and the section 127 application by P&O Ports. At the Glebe Island Terminal in Sydney the company provides stevedoring services associated with the discharge of imported motor vehicles from vessels. The terms and conditions of employment of the employees at the site are governed by a certified agreement made by this Commission and the Stevedoring Industry Award 1999.

PN16

Commissioner, at about 5 am this morning, employees rostered to work at the Glebe Island Terminal commenced indefinite industrial action. From discussions with officials of the MUA, the company understands that the industrial action is being brought in response to a news release issued by the New South Wales State Government earlier this week in which the New South Wales Premier announced that the continued use of the Glebe Island Terminal for its present purposes would discontinue and car imports would be relocated to Port Kembla from late 2008.

PN17

Commissioner, the company will suffer significant loss and damages as a result of the industrial action taking place today. The employees should be unloading a vessel called the Sapphire Highway from 5 am today. If the employees had worked in accordance with their contracts of employment and their industrial instruments, the ship would have been unloaded today and would have been on its way to Melbourne to unload motor vehicles at West Swanston Dock. As you’d appreciate, Commissioner, the unloading of the vehicles has not yet commenced and the company is presently having difficulties obtaining labour for it to be unloaded over the next 24 hours or so.

PN18

The damages suffered by the company include up to a $60,000 penalty for its failure to unload the vessel today, likely increased labour costs in relation to unloading of the vessel and significant damage to its reputation with its customers. If the vessel misses its unloading window at the West Swanston Dock in Melbourne further significant damages could be incurred.

PN19

As the company understands it, the industrial action is being undertaken as a protest against the decision of the New South Wales State Government over which the company has absolutely no control. The MUA has acknowledged as much in its decisions with the company. The MUA gave the company no notice of the proposed industrial action and contravene the agreed disputes resolution procedures in the relevant certified agreement. In the circumstances, the company regards the industrial action as being illegitimate and irresponsible.

PN20

In these circumstances, the company seeks undertakings from the MUA, its officers and members that they will take no further industrial action in relation to this issue at either the Glebe Island Terminal or its Darling Harbour Terminal. Secondly, that it will comply with the dispute resolution procedure in the agreement in relation to any further matters arising in relation to this issue.

PN21

Finally, Commissioner, the company regards the union’s behaviour in this dispute as being at best disingenuous. The union notified a dispute to the Commission yesterday which the company received very late yesterday, about the issue in relation to the State Government’s announcement which, as I understand, it was originally listed for Monday afternoon. That notice to the commission advised that no industrial action was presently being undertaken, and yet less than 12 hours later the union’s organisers were at the company site encouraging employees to take industrial action. Thank you, Commissioner.

PN22

THE COMMISSIONER: And what do you seek?

PN23

MR FOX: There have been some discussions, Commissioner, between the parties. I think, as I understand it, Mr Slevin has some positions to put in relation to the union and that may help advance the matter.

PN24

THE COMMISSIONER: Yes.

PN25

MR FOX: Subject to what comes from Mr Slevin this afternoon it may be that we don’t press our 127 application at this stage but I ask for it to be stood over.

PN26

THE COMMISSIONER: Yes. Okay. Mr Sloan, do you have anything to add? I know you’re not affected by the industrial action but you’re certainly affected by the section 99 - - -

PN27

MR SLOAN: We are, Commissioner, but I think at this stage we would just reserve our position. I don’t think there’s much that we can add to what Mr Fox has put to you this afternoon.

PN28

THE COMMISSIONER: Yes, Mr Smith?

PN29

MR SMITH: Commissioner, I’d just like to perhaps put on the record that Patrick companies have been affected by the industrial action today. Patrick Autocare transport operators have been turned away from picket lines from picking up vehicles from Glebe Island Terminal.

PN30

THE COMMISSIONER: I see.

PN31

MR SMITH: Also Patrick Stevedores, Patrick General Stevedoring have a vessel due to commence working at Glebe Island at 6 am tomorrow morning. So ..... there’s some outcome that gives us some certainty about the working arrangements.

PN32

THE COMMISSIONER: Yes, thank you, Mr Smith. Yes, Mr Slevin?

PN33

MR SLEVIN: Thank you, Commissioner. Commissioner, my instructions don’t extend to the point where I can confirm the matters and facts said by Mr Fox. My instructions do extend to the point where I can take issue with a couple of the matters said by Mr Fox. This issue, Commissioner, arises because a very important decision was made about the working lives of the members of the union at the Glebe Island Terminal and that decision was made without any consultation with the workers or any consultation with the MUA.

PN34

In terms of the response that has been taken, it’s been taken in circumstances that the union believes is understandable, the comments made by Mr Fox, we believe, about the MUA being disingenuous are unwarranted in the circumstances where such an important decision was taken without consultation. The response of the union was, from the union’s point of view, understandable and in a sense measured. Having said that though, Commissioner, we have lodged the section 99 application that has been listed with these other two matters, the section 127 and the section 99. In the recitations contained in the section 99 application, the circumstances are set out and the belief of the union is that consultation provisions in the P&O agreement and the Patricks agreement have not been followed in these circumstances.

PN35

So that’s the claim made in the section 99 by the MUA. The assertion that the companies had no say in the decision by the Government we doubt, Commissioner. We think such an important decision must have been made in consultation with the companies and Commissioner, you’ll be aware that this is a joint venture between P&O and Patricks and so we believe that it cannot be genuinely said that Patricks, P&O and AAT didn’t know the decision was being made and the decision had been made and would have such an effect on MUA members.

PN36

So by way of background, Commissioner, I’ll leave my comments at that. Mr Fox has told you that there have been some discussions and there have been discussions between the parties about what has occurred. There has been a protest at the terminal today. Arising from that protest there have been some discussions with a number of interested parties and those parties are represented here today, including Unions NSW, including representatives of the New South Wales Government as well as the discussions with company representatives as well, in particular P&O and given the circumstances of the day.

PN37

Those discussions have come to a point, Commissioner, where it is agreed that there will be consultation and that consultation will involve the State Government representatives, the Minister for Ports, we understand that gives - and that can be confirmed by my friend from the New South Wales Government - the Minister for Ports gives an undertaking that the Government will be involved in having discussions with the union. Unions New South Wales will be involved in those discussions as well, Commissioner.

PN38

P&O to date, on my instructions, have agreed they will be involved I those discussions. We would like AAT and Patricks to also be involved in those discussions. We haven’t had confirmation of that and these arrangements have been made in the last half an hour, Commissioner, so I make no criticism of those two parties but what the union seeks is for those discussions to occur on the basis that there are undertakings from all the parties that they will be involved in those discussions, I can report, your Honour, that the union is willing to lift any bans arising from today.

PN39

The union is also willing to give an undertaking to P&O that - or a commitment to cooperate with them to insure that - or to assist in getting labour to unload the ship that’s currently docked at Glebe Island and, Commissioner, we ask for the assistance of the Commission in providing us with a report back for the timeframe for these discussions has been set at 3 weeks. We would appreciate the indulgence of the Commission of having a report back in three weeks time so that we can let you know how we dealt with these issues.

PN40

In those circumstances, while the discussions are occurring between now and that report back, the union is also willing to give an undertaking that there’ll be no further bans on this issue.

PN41

THE COMMISSIONER: Yes.

PN42

MR SLEVIN: That’s the proposed resolution of the matter, Commissioner. We understand that P&O accept that resolution. I think it’s for the other parties at the table to confirm their position so that the matter can be finalised. If the Commission pleases.

PN43

THE COMMISSIONER: Yes. Well, Ms Hughes, Unions New South Wales was mentioned in all of that so what do you say about your participation?

PN44

MS HUGHES: In regards to that participation the Ministers are both happy to be involved in consultation with the MUA and the Government as well as the respective employer bodies. Other than that I have nothing further to add in support of the submissions made by Mr Slevin.

PN45

THE COMMISSIONER: Before I turn to Mr Sloan, Mr Smith, Mr Raper, what do you wish to say because the Government was also mentioned.

PN46

MR RAPER: Yes, it’s ..... in this matter, your Honour, very recently. But I think I have got to say that the Government is disappointed that industrial action has taken place. The issues at the heart of this dispute have been on the agenda for some years and the announcement by the Premier earlier in the week was a substantial investment in Port Kembla of some $140 million. And as I understand it, he has in fact this morning announced a further $500 million in Port Botany.

PN47

So the Government recognises that these are major investments, they’re a major structural adjustment and is committed to working through with the MUA and the relevant employer organisations as well as the ports authority, the Sydney Port Authority and the Port Kembla Authority and the Maritime Authority. All of the issues that are involved in such a major investment and program of investment and major structural adjustment in the industry.

PN48

We recognise that there will be difficulties but we rely on the goodwill of the parties to insure that those investments on behalf of the community of New South Wales and the workforce within the maritime industry are brought to fruition as speedily and as efficiently as possible. So I’m happy to confirm that the Minister for Ports is happy to meet as early as next week or at a time when it suits the convenience of the parties, to commence that consultation or to continue that consultation process until such time as we get an acceptable resolution of the matters. Obviously the parties at the table are very, very relevant to the issues as well as the port authorities and the Maritime Authority ..... So that is in fact the Government’s position. Those discussions can start next week or as early as the parties are available.

PN49

THE COMMISSIONER: Yes, thank you. Yes, Mr Sloan or Mr Smith?

PN50

MR SLOAN: Commissioner, AATs position is that if it is required as part of the process of resolving this to be a part of discussions it will take part, noting that it has two employees who are affected by this current dispute and both of whom have been - with both of whom the employer has had discussions already. So it’s not as if we are going to be, I would imagine, a large player in these discussions.

PN51

THE COMMISSIONER: Are your two employees executives or clerks?

PN52

MR SLOAN: Clerks. Yes.

PN53

THE COMMISSIONER: So you’re affected by the dispute but you’re not determining it?

PN54

MR SLOAN: I would imagine that our part would be very much as a passenger, Commissioner, because as I say, AAT is happy to take part if the parties require it.

PN55

THE COMMISSIONER: For the record and based on information in the MUAs dispute notification, AAT is a joint venture between Patricks and P&O, am I right in that?

PN56

MR SLOAN: That is largely correct.

PN57

THE COMMISSIONER: Yes, okay. Yes, thank you, Mr Sloan. Yes, Mr Smith?

PN58

MR SMITH: Commissioner, to the extent that the MUAs notification of the matter 5133 relates to requirements to consult under the Patricks General Stevedoring Certified Agreement, the company is more than willing to consult with its employees about the likely effects of the Glebe Island Terminal closure as it’s now foreshadowed for 2008, bearing in mind that is some 3 years away, and the impact on the employees at Patricks Stevedores Holdings in Sydney will be determined by our client’s response to that closure and also the already foreshadowed and discussed closure of Glebe Island - sorry, the Darling Harbour facility where the employees are basically based and perform some work at Glebe Island on car vessels that are stevedored at that facility.

PN59

So I’m not sure to what extent a consultative processes that have been proposed today actually go to the issues in the MUAs application. But the impact of the closure at Glebe Island on our employees will obviously be an issue for them and an issue for Patrick in terms of how it manages that situation. But it’s something that will occur someway down the track and I’m just not sure what the intended approach is of the discussions next week that requires the industrial action today and to the approach of commitment for the company to be involved in discussions next week, given that the consultation requirements under our certified agreement go to the impact in relation to decisions that have been made by the company in relation to its employees.

PN60

And those decisions we’re not in a position to make or even start to articulate to our employees until we have had the opportunity to discuss with the clients that are working at Glebe Island; you know, what sort of timeframe, how would we ..... until we have a better understanding of what’s happening in terms of the timeframe of developments in Port Kembla, all of which are some way off.

PN61

THE COMMISSIONER: Yes. Well, that’s all very nice but what are you saying? You’re not happy to participate in any discussions with P&O, the unions and the State Government and Unions New South Wales?

PN62

MR SMITH: Well, it’s - perhaps I’m not really seeing the direct relevance to Patrick at this stage.

PN63

THE COMMISSIONER: Well, the relevance is that you said to me that a ship’s coming in this evening. It may have relevance to you then but I just don’t propose to list section 127 hearings every second day if we can get the parties together. You know, you are just a user of a berth owned by somebody else. If the parties can get together and if the Commission can act to pre-empt difficulties arising, it should do so, shouldn’t it? You’re not suggesting that you just - we do nothing until we actually have perhaps a dispute or disagreement?

PN64

MR SMITH: No, I’m not necessarily suggesting that, sir, but I’m also not suggesting that the MUA should be in a position where it’s threatening or engaging in industrial action that’s contrary to - - -

PN65

THE COMMISSIONER: I know that. But we have got before us a section 99 notification from Mr Gibbons representing the MUA seeking the assistance of the Commission. Now, what am I supposed to do? Formally drag Patricks along and issue recommendations that you meet or do we just go along in cooperative aspects without the Commission but with the parties, all of the parties, owners of the premises as well as users, to try to resolve - perhaps - I know that we’re three years out, maybe even more than that, but nonetheless better sooner rather than later, isn’t it?

PN66

MR SMITH: Well, possibly, sir, but given that timeframe there is plenty of opportunity for discussions to occur and for the union to put to Patrick in perhaps a more appropriate way why these issues should be settled involving Patrick in discussions that have - as opposed to the discussions that they have sought under the notification which really go to issues of consultation under the certified agreement.

PN67

THE COMMISSIONER: Yes. Yes, thank you, Mr Smith. Yes, Mr Fox?

PN68

MR FOX: Commissioner, perhaps if I could raise a couple of points in that regard. I wonder whether it might not be helpful to perhaps adjourn for 15 or 20 minutes so that the parties can have a better understanding of what the unions actually have in mind, having regard to what - I’m looking at my friend on my left - and that may also be useful from our point of view because we may need to get some instructions about just one aspect as well.

PN69

THE COMMISSIONER: Yes, okay. We’ll adjourn for 15 minutes.

<SHORT ADJOURNMENT [2.51PM]
<RESUMED [3.26PM]

PN70

THE COMMISSIONER: Yes, Mr Fox?

PN71

MR FOX: Thank you, Commissioner, for the adjournment. Commissioner, P&Os position is that it does agree to participate in discussions in relation to dispute 5133 up until the next report back, which I think the union in our discussions has suggested perhaps happening in about three weeks.

PN72

In relation to the commitments given by the union in relation to further industrial action, and particularly those commitments arising in the context of the dispute notification by Patricks in 5137 of 2005, that’s the one that was filed today, we would request, Commissioner, that we have the assistance of the Commission for some conciliation in relation to that matter after we have dealt with the matter 5133, in terms of a program for discussion - sorry, P&O. Sorry, in the matter - - -

PN73

THE COMMISSIONER: I’m not sure I follow you.

PN74

MR FOX: Commissioner, in terms of the dispute notification made by the union in matter - - -

PN75

THE COMMISSIONER: Yes.

PN76

MR FOX: - - - 5133, there has been some discussions before you, Commissioner, about having - or the union have proposed having some discussions with the various parties in relation to issues which arise in relation to the government announcement. My instructions are that P&O are happy to participate in those discussions up until the next report back. As a completely separate matter, as you’re aware, Commissioner, we filed a dispute notification in matter 5137 about the industrial action that’s continuing today.

PN77

THE COMMISSIONER: Yes.

PN78

MR FOX: In relation to that matter, Commissioner, we would appreciate the Commission’s assistance potentially after the other parties in matter 5133 have been - have left the bar table.

PN79

THE COMMISSIONER: Yes, okay.

PN80

MR FOX: Thank you, Commissioner.

PN81

THE COMMISSIONER: Mr Slevin?

PN82

MR SLEVIN: I think Mr Smith might like time before I respond, Commissioner.

PN83

MR SMITH: Thank you, Commissioner. On the basis that there are some sufficient guarantees that there won’t be any industrial action that impacts on the operations of any nature at Glebe Island Terminal in the intervening period and with the reservations that I have noted about our ability to have any precision about the impact of 2008 at this stage on our workforce, we are prepared to participate in the discussions sought by the other party.

PN84

THE COMMISSIONER: Yes, okay. Yes, Mr Slevin, we know what the Unions New South Wales and the Government’s position is.

PN85

MR SLEVIN: Yes, Commissioner, I think it falls this way, that in C number 5133 and when we address on all three matters, but Mr Fox is now keen to carve off his matters.

PN86

In relation to C number 5133 there are to be meetings with the Minister for Ports involving all of the parties and it seems we have the agreement of all parties that they will attend. Mr Sloan said before the adjournment that they will participate if required. The union does require them to participate, Commissioner, if I can put that on the record. So far as that matter is concerned, I think that matter can be adjourned for a report back in three weeks’ time.

PN87

THE COMMISSIONER: And while those discussions are occurring, you’ve given certain undertakings and - - -

PN88

MR SLEVIN: Well, the undertakings in relation to P&O for discussion of the other two matters that Mr Fox wants to carve off, Commissioner.

PN89

THE COMMISSIONER: I see.

PN90

MR SLEVIN: To Patricks the undertaking has been given that while there’s participation in those discussions and before the report back in three weeks time there’ll be no industrial action at the Glebe Island Terminal on those issues.

PN91

THE COMMISSIONER: Right.

PN92

MR SLEVIN: So, I think, Commissioner, we can adjourn C number 5133 and those additional parties who have attended in relation to that matter - we don’t need to trouble them any further this afternoon.

PN93

MR SLOAN: Commissioner, sorry, just one point of clarification. My learned friend just made a comment that Patricks give an undertaking not to engage in any industrial action agreed. I’m assuming that there will be similar undertaking given by AAT.

PN94

MR SLEVIN: Yes, that is the case.

PN95

THE COMMISSIONER: Thank you. Well, on that basis, the Government Union New South Wales and Patricks Stevedore but AAT can leave I think, and we’re adjourning into conference, are we, Mr Fox?

PN96

MR FOX: If it please the Commission.

<SHORT ADJOURNMENT [3.32PM]
<RESUMED [4.05PM]

PN97

THE COMMISSIONER: Yes, thank you. Having considered what has been put both on the record and in conference I note that in respect of the current industrial action the MUA on its behalf and of its members, on the basis of commitments by P&O that it will participate in discussions concerning the future of Glebe Island Terminals together with other interested parties, that industrial action will cease or there will be a cessation of any bans and limitations currently in place and will take steps to insure the availability of necessary labour as soon as practicable.

PN98

It also has given a commitment that over the next 3 weeks, which is envisaged as a discussion period, there is a commitment that no industrial action will also occur. That is welcome as far as it goes in dealing with the current stoppage but I have - I share the apprehension that the company may have as to what is to occur after the 3 weeks of discussions have ended, including after the suggested report back to the Commission.

PN99

In my view, given the relatively long period of time envisaged by the New South Wales in its planned closure of Glebe Island, and notwithstanding my acceptance that it will have a real effect on the lives of persons, workers concerned, it is hoped that the process of consultation and negotiations might still continue without resort to precipitous industrial action even beyond - even should the 3 weeks not prove totally successful.

PN100

In that regard, I remind the union that the provision of the award and in particular of its freely negotiated certified agreement, contains not only benefits but also obligations including the requirement to adhere to disputes procedures and the like. In short, I do not view the end of the discussion period as some kind of green light to act contrary to the award or the agreement.

PN101

On the basis of the undertaking of the union and also noting my comments as to my expectation at the end of that discussion period, I propose to adjourn these proceedings until a report back, probably at 9.30 on Friday, 4 November, which is 3 weeks. If that has to be extended out or brought forward, I’ll leave it to the parties to contact the Commission. On that basis these proceedings are now adjourned.

<ADJOURNED UNTIL FRIDAY 4 NOVEMBER 2005 [4.08PM]