C2005/5171, Transcript of Proceedings [2005] AIRCTrans 2285 (4 November 2005)

TRANSCRIPT OF PROCEEDINGS

---

Workplace Relations Act 1996 13234-1

COMMISSIONER RICHARDS

C2005/5171

CLYDE BABCOCK HITACHI (AUSTRALIA) PTY LTD
AND
THE AUSTRALIAN WORKERS’ UNION AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION
s.127(2) - Appln to stop or prevent industrial action
(C2005/5171)

BRISBANE

9.05AM, THURSDAY, 20 OCTOBER 2005

PN1

MR D PRATT: I appear on behalf of Clyde Babcock Hitachi, the applicant in this matter for the Australian Industry Group, industrial organisation of employers.

PN2

MS K ALLEN: I appear on behalf of the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union. With me today is
MR D FYFFE, who is the State organisation with my union. He will not be making any appearances, Commissioner.

PN3

MR D BROANDA: I appear on behalf of the Australian Workers' Union.

PN4

THE COMMISSIONER: Thank you. I think it's a common understanding that we're dealing at least at this stage of the proceedings with both the applications in C2005/5175 and C2005/5171. Mr Pratt.

PN5

MR PRATT: Thank you, Commissioner. I note for the record, before we get under way, I have present in the gallery today two persons who we propose to bring evidence in this matter. The first is Mr K Gebers, that is G-e-b-e-r-s and, of course, Mr Gary Ruoso, R-u-o-s-o. It's certainly not up to me. I might throw to my friends to see whether or not they have any objection to us proceeding while those people who might give evidence are still here, before we get under way with submissions.

PN6

THE COMMISSIONER: Are they critical to instructions?

PN7

MR PRATT: They're not critical to instructions, no, Commissioner. Mr Barrett is also with me. Mr Barrett is issuing instructions.

PN8

THE COMMISSIONER: On that basis, the Commission would prefer that they remained outside.

PN9

MR PRATT: Very well, Commissioner.

PN10

MS ALLEN: Commissioner, can I just get a point of clarification? The two statements we have is one from Mr Gary Ruoso, the other one is from Mr Peter McKee. Is that not one of the individuals that we're talking about today?

PN11

MR PRATT: I beg your pardon, Commissioner. My friend is quite right. I have misunderstood the nature of the evidence. Mr McKee is the other witness who will be bringing evidence. Mr Gebers is not going to give evidence, so it is simply Mr Ruoso who will be giving evidence and at this point, on the Commission's earlier instructions, we might ask Mr Ruoso to leave the room.

PN12

THE COMMISSIONER: Just two matters at the outset or one matter at the outset. Mr Pratt, as you open your submissions, I am just wondering whether you might provide some context for the record as to the work that's undertaken at the respective sites and related matters and come into your submissions from there?

PN13

MR PRATT: I may need to seek some instructions, Commissioner. The work is maintenance work on specifically shutdowns and repair work. It involves employees whose work is captured by the agreement noted in there which is AG25101. I will just see if that brief summary is sufficient, Commissioner. Specifically, Commissioner, the work relates to maintenance overhauls of power station boilers. Might I ask the Commission before I move on if that's sufficient?

PN14

THE COMMISSIONER: Yes, that's fine. Thanks.

PN15

MR PRATT: Thank you, Commissioner. Well, Commissioner, obviously we have two separate applications. The reason for that is although the strikes are, of course, related, there are two separate processes afoot. We seek two separate orders because the strikes did occur at different times. In outline, Commissioner, both applications have both been filed and served, attached to them a statement of evidence.

PN16

The first in the process was, of course, what we from now on would refer to as the Tarong application and that if I might say is where the matter had its genesis. As the grounds in the application say, I won't labour them too much, but I might just before I do seek to amend the application. Of course, yesterday's events saw us apply to have the second matter, the Gladstone matter brought on and that caused a delay and we sought that the matters might be heard today.

PN17

That was at our request and we're grateful to the Commission for obliging in that sense. It seemed rather futile to proceed yesterday when there was another matter that was almost identical in terms which might be needed to be heard today, so in that sense, Commissioner, we would seek to amend not only the application which seeks an order with a term and date of effect from yesterday, we would amend that to, of course, 5 pm today, being 20 October.

PN18

That appears at clause 7 of the terms sought within the application and, of course, in the draft order correspondingly we would seek to amend that term and effect. We don't seek the order to be effectively retrospective, of course, Commissioner. We would simply seek to amend that. The nature of the strike is this, Commissioner, that - - -

PN19

THE COMMISSIONER: Just before you get your rhythm going there, can I just ask perhaps the union parties today, without wanting to peel back the argument in its entirety, but are the circumstances altered in any fundamental way currently?

PN20

MR BROANDA: Commissioner, my instructions this morning are that we are where we were yesterday.

PN21

THE COMMISSIONER: Okay, that is a nice anodyne way of putting it for the time being.

PN22

MS ALLEN: Yes, that's my instructions as well, Commissioner.

PN23

THE COMMISSIONER: Thank you.

PN24

MR PRATT: Thank you, Commissioner. A very pertinent point to raise, because as often is the case, we get here and things have changed substantially. Members might be back at work. That is certainly our instructions, that the employees are still out on strike. It's also relevant to point out, Commissioner, that our instructions are that the strike is intended to proceed until with respect to the night shift, tonight's night shift and with respect to the day shift, tomorrow morning's day shift, those are the two times that the workers have proposed they will come back to work.

PN25

THE COMMISSIONER: Just so I keep track of you here, we're only dealing at the moment with the submission in relation to the Tarong - - -

PN26

MR PRATT: Tarong, Yes.

PN27

THE COMMISSIONER: Okay. Can you just take me back a step and tell me precisely when the alleged industrial action commenced and with which shift, at what time, so we can get some sequence, your view of the history of the matter?

PN28

MR PRATT: Absolutely, Commissioner. If the Commission turns to the statement of Mr Gary Ruoso which is attached to the Tarong application, there is in that a chronology of events that leads us effectively to the day the statement was made, the lead-up of discussions with regard to disparity in rates between members employed by our member, members of the union, that is, employed by our member and employees of subcontractors who were engaged by our member, resulted in a vote and I think the most relevant clause there is the Tuesday, 18 October.

PN29

THE COMMISSIONER: Yes, I don't want you to go through all of this. I just want you to start at that date, so we're really looking at the conclusion of the mass meeting at 8 pm on the 19th.

PN30

MR PRATT: Correct, Commissioner, on page 5 of Mr Ruoso's statement and what happened there, of course, the lead of the strike was through the night shift and, of course, by the time the day shift was due to start the following morning, the word had spread and the day shift was also on strike. There was no mass meeting effectively of the day shift.

PN31

The word was advised back to our member that it was a 48-hour strike which as far as Tarong is concerned would mean that the night shift would take that shift and another out, meaning it would resume this evening and as far as the day shift was concerned, it would take the following day shift and, of course, today's day shift out and would resume tomorrow morning, so that's effectively where we are today.

PN32

THE COMMISSIONER: Sorry, today's day shift goes out?

PN33

MR PRATT: Yes, today's day shift is out and is not due to recommence work until tomorrow morning.

PN34

THE COMMISSIONER: What is the start of shift tomorrow morning?

PN35

MR PRATT: 7 o'clock, I am instructed, Commissioner, so, Commissioner, at the risk of confusing things, if I might just now step over to the state of play with regard to Gladstone. Because it followed on a little bit later, it's important to point out there is a subtle difference with respect to the duration of the strike there. The Gladstone employees, if one turns to the statement of Mr Peter McKee, one will see that the night shift won't resume there tonight as it will in the Tarong situation because, of course, Tarong started effectively now two shifts ago. The Gladstone day shift will resume tomorrow morning and the Gladstone night shift will resume tomorrow night, being Friday, 21 October.

PN36

THE COMMISSIONER: Is that a seven am start?

PN37

MR PRATT: Six am, Commissioner.

PN38

THE COMMISSIONER: So if the respective periods of alleged industrial action are completed, there will be a resumption of work tomorrow morning at Tarong at seven am and a resumption of work at Gladstone at six am?

PN39

MR PRATT: That's correct, Commissioner, yes.

PN40

THE COMMISSIONER: That is assuming the alleged industrial action continues until - is that how I see it? So, actually, Gladstone goes back an hour earlier?

PN41

MR PRATT: I beg your pardon, Commissioner, the Tarong night shift would commence tonight, given it's now had last night and the night before out on strike, so for its purposes, it's taken its 48 hours and will resume tonight.

PN42

THE COMMISSIONER: Okay, I understand, and is that 8 pm?

PN43

MR PRATT: 7 pm, Commissioner.

PN44

THE COMMISSIONER: But Gladstone, there won't be a resumption until six am, start of shift tomorrow morning?

PN45

MR PRATT: Correct. In fact, it's the day shift that took the first strike from Gladstone meaning the day shift will commence tomorrow and the night shift won't commence until after that, so the heart of the issue as we're all no doubt aware, but for the purposes of formality, is encapsulated in both the statements of Mr Ruoso and Mr McKee and that is the question of the parity of the rates of pay between or a disparity of the rates of pay between employees employed directly by our member and employees employed by subcontractors engaged by our member.

PN46

The reason for that, as one will find on considering those statements, is that there is no exception here as to what is being suffered around the country as far as a skills shortage is concerned. To service its obligations, contractually our member has had to outsource and find labour elsewhere at, of course, an increased cost. It begs the question and I will answer it in advance, because I am sure it will come from my learned friends, we would, of course, have found and used local labour if we could have.

PN47

Purely from a commercial point of view, if one looks at it in the hardest possible light, why on earth would we have sought a greater expense and inconvenience and difficulty an outsourcing of employees when we could have found them locally if we could and engaged them quicker and at better rates in accordance with the agreement? We simply couldn't - - -

PN48

THE COMMISSIONER: Better is a relative term, isn't it?

PN49

MR PRATT: Well, I - and I am still speaking in the context of the hardest light of our actions. Purely from a commercial point of view, it would be better for us commercially to hire the labour in a local context in accordance with the agreement. However, that said, that is me speaking here in Brisbane. The situation on site is that the employees see it in a very different light as has risen to the surface through discussions with them, with our member and through their representatives of the union.

PN50

The employees appear to see it as an inequity and I think it's fair to say on the evidence before you that they have voted with their feet in terms of a claim sought to narrow what they perceive as the terms of the inequity which has been distilled down to for simple purposes $5 an hour. Now, of course, it needs to be said, it is in the application and in the statements I think, but it needs to be said that the agreement is in term until 31 March next year.

PN51

It is a properly certified agreement of this Commission and caters for adequately the rates and classifications of the employees who are now on strike and propose to be so until this evening and tomorrow. Again, not for the purposes of educating anyone in this room, but simply for the purposes of thoroughness, it is of course industrial action. It is not protected industrial action. There is no bargaining period in place.

PN52

It is, of course, a claim that is made for wages which is extraneous to the terms of the agreement. It is industrial action that is in breach of the Workplace Relations Act and most importantly, it is, of course, industrial action that is in breach of the Building and Construction Industry Improvement Act. That is of great concern to us because we cannot entertain the question of providing the additional $5 that is the subject of an illegitimate claim and illegitimate industrial action.

PN53

For the purposes of argument, we say it is illegitimate industrial action of the sort that was referred to by the Full Bench in Coal and Allied. It is, of course, on top of that action which is not protected action.

PN54

THE COMMISSIONER: Can I just take you to your certified agreement? I will ask the union parties for any submissions in relation to this as well and under part B1 of the agreement, B1(c), there are provisions there in relation to the circumstances in which the work regulated by the relevant agreement is subject to the wages and conditions struck in the bargain that constitutes this agreement and there are provisions there for some exceptionality, or some exceptions.

PN55

There's a no claims clause that applies and there's prescribed the circumstances in which those rates don't apply and it appears on a plain reading subject to submissions of the parties that the circumstances on which these rates were struck within this bargain don't apply where a specific site agreement applies, where a specific contractors' agreement applies and, (d), the noted exception is in respect of any electrical classifications that are subsequently employed at higher rates for the purposes of the work covered by that agreement which is basically an all deals off type clause, it sounds like.

PN56

MR PRATT: Thank you, Commissioner. We certainly would like to address that point. Of course, the Commission is obviously alive as to the nature of the questions, to the term directly employ electrical classifications. The nature of the people, or the employees that are the subject of the dispute and when I say subject, I mean, the employees engaged by the subcontractor are, of course, not directly employed by our member. Were it the case that they were directly employed by our member, then we wouldn't be here.

PN57

THE COMMISSIONER: Sorry, the logical next question I wanted to ask was what is the nature of the - who are the contractors and what work are they doing of the same sort that falls under this agreement?

PN58

MR PRATT: If I might take some instructions for a moment, Commissioner. Commissioner, they are a Victorian subcontractor who are doing a lump sum payment contract for a portion or a parcel of work, welding work specifically on an item of plant known as a super heater element, so specifically they have been brought in for a particular task, welding in nature, employed by that subcontractor in Melbourne.

PN59

THE COMMISSIONER: Good, thanks.

PN60

MR PRATT: So, Commissioner, before we turn to the evidence of Mr Ruoso and Mr McKee, unless the Commission is minded to hear from the respondents prior to that, I am in your hands there, I am happy to proceed, but just completing our ground work as it were on the issue of jurisdiction, we say that the industrial action is certainly happening, it is certainly occurring at present. We're not seeking very lengthy orders.

PN61

We're not suggesting that further action is probable, although, of course, anything can happen, but we're not heading down that path. We are here today where action is happening, so we say that that element is satisfied and will be amply satisfied once the evidence is taken or the statements are admitted. The other element, of course, is whether or not it is protected industrial action and our submission is there, of course, that in consideration of the evidence, it is in our respectful submission almost a certainty that the Commission if it's minded to, would decide that it is not protected industrial action and therefore is a form of action that breaches the Act or both of those Acts effectively.

PN62

The industrial action is, of course, we say within the terms of the definition of industrial action. It is a ban or a limitation or restriction on the performance of work as is found in subsection 4(b) of the Workplace Relations Act and, of course, again not for the purposes of educating anyone here, but for thoroughness, it is not a type of action which is exempt within the terms of the Act. It is not a safety dispute.

PN63

There is no hint of a safety issue at all in any of this and there never has been. It is purely an industrial dispute. It is industrial action as is defined and it is for the purposes of negotiating or within the terms of the work captured within the agreement, so section 127 requires that there be an application made by a party to the dispute. We, of course, have made application on behalf of the employer who is a party to that dispute, so in that sense, Commissioner, our submissions are that we're on all fours with the requirements of the Act from a jurisdictional point of view.

PN64

That only leaves the question which we may turn to after evidence as to whether or not the Commission might exercise its discretion which, of course, is a discretionary power to grant the orders of the sort that we asked for in our amended form. I am in your hands, Commissioner, whether or not you want us to turn to the evidence now or hear from the applicants before we proceed or, in fact, if you have any further questions of me.

PN65

THE COMMISSIONER: Respondents.

PN66

MR PRATT: I beg your pardon, respondents.

PN67

THE COMMISSIONER: I would prefer to go straight to evidence unless the respondents have something that they're pressing to say at this moment. Can I ask add that regarding the statements that I've received, I would also seek any evidence that is able to be provided by a witness under oath as to the impact or consequences of the alleged industrial action as well?

PN68

MR PRATT: Very well, Commissioner, in that sense might I seek leave to - I think both statements make a reference to it, although Mr McKee's on examination doesn't appear to. I might seek leave, if the Commission pleases, to ask those questions.

PN69

THE COMMISSIONER: You can do that in evidence in chief.

PN70

MR PRATT: Yes. Given that, then, Commissioner, we might seek to bring
Mr Gary Ruoso who is with us today to the stand.

PN71

MR BROANDA: May it please the Commission, just before Mr Ruoso comes in, in Mr Ruoso's affidavit at page 5 - I apologise, they all appear to be page 5, the date Monday, 17/10, makes reference to attachments which the AWU doesn't have. I am not sure of the metalworkers' position on this. I unfortunately haven't had a chance to discuss this with them, but I would suggest that either the attachments would need to be provided or the reference removed. May it please.

PN72

MS ALLEN: We agree, Commissioner. We haven't received any of the attachments.

PN73

THE COMMISSIONER: This is the second bullet point on Monday, the 17th?

PN74

MR BROANDA: That's correct, Commissioner. It's a minor point, but there's a reference there which - - -

PN75

THE COMMISSIONER: No, no, it is - - -

PN76

MR PRATT: Commissioner, we're conscious of the need to be careful here with regard to the Building and Construction Industry Improvement Act and various bits of evidence that might come to the surface. We're not minded to see any great value in tendering copies of the emails. I think if it's worth anything, it might be simply that we concede there was a demand made, but, of course, we're happy if the Commission exercises its discretion there and requires the production of a copy of those emails, then we will.

PN77

THE COMMISSIONER: Well, the issue really is, I think, as Mr Broanda put it and that is if you want to rely on that particular evidence, as you've stated it exists, then it needs to be brought forward and examined and be subject to scrutiny, but other than that, it's an assertion that another email was received and that's all it can be. I think Mr Broanda's point is well put and that is simply if you want to rely on it other than it just as an assertion, then it needs to be presented and examined, but if you don't wish to rely on it or if you - there are really three scenarios. You can rely on it, but it will only have the status of an assertion in evidence, or you can just strike out the complete clause, so it is up to you.

PN78

MR PRATT: I think we will rely on it, only in the sense that it's a statement from our witness that says he has received an email and - - -

PN79

THE COMMISSIONER: It's no more than an assertion in that regard.

PN80

MS ALLEN: And, Commissioner, we agree. Our position is that if the company doesn't wish to rely upon it, then that part of the statement should be struck out, but certainly if it's not, we would be saying that it's an untested assertion.

PN81

MR PRATT: Thank you, Commissioner. The evidence is, our view of it is and we will concede this, that at the moment as it stands, Mr Ruoso simply makes a statement that he's received an email, he makes a statement that the email contained a demand.

PN82

THE COMMISSIONER: You will amend the witness statement to remove the words in parenthesis.

PN83

MR PRATT: See attachments, yes, of course, we will simply delete that, Commissioner.

PN84

THE COMMISSIONER: Well, you can do that in evidence in chief as well, because it's someone else's witness statement.

PN85

MR PRATT: Yes, of course. Well, if the Commission pleases, we might call to the witness box Mr Ruoso.

<GARY JAMES RUOSO, SWORN [9.35AM]
<EXAMINATION-IN-CHIEF BY MR PRATT

PN86

MR PRATT: Witness, can I ask you to state your full name and residential address for the record, please?---Gary James Ruoso, (address supplied).

PN87

Mr Ruoso, you've prepared a statement of evidence in these events. Do you have a copy with you?---No. I do have a folder.

PN88

I will pass a copy of that which was faxed out as an attachment to the application. Is that your statement?---Yes, it is.

PN89

Do you swear that that is true and correct?---Yes, I do.

PN90

Can I ask you to turn to the third page of that statement? Appearing about the middle of the page is the bolded heading, Monday, 17/10. That is, of course, the date 17 October 2005, is it?---Yes.

PN91

There is, the second bullet point there, the words:

PN92

Another email received asking for a response by close of business (see attachment).

PN93

The question has been raised that there are no attachments to the statement. We're just wondering whether or not there is a need to have the words see attachments in brackets, given you've made a statement that you received the email. Are you happy to have the words see attachments removed?---Yes.

PN94

With those amendments, Commissioner, we would seek to tender the statement as an exhibit, may it please.

PN95

THE COMMISSIONER: Now, are you satisfied that the content of the witness statement vis a vis the impact of the alleged industrial action?

PN96

MR PRATT: Well, I was going to ask, Commissioner - I am happy to do it one of two ways.

PN97

THE COMMISSIONER: You're going to come to that?

PN98

MR PRATT: Yes.

EXHIBIT #A1 STATEMENT OF GARY JAMES RUOSO

**** GARY JAMES RUOSO XN MR PRATT
PN99

MR PRATT: Thank you, Commissioner. That said, we simply ask, Mr Ruoso, what evidence can you bring to assist the Commission with regard to the costs that have been incurred by your employer as a result of this industrial action?---I've formulated some documents there. Clyde Babcock Hitachi is subject to KPIs on completion of work. It's part of the alliance document. Part of our profit is subject to loss if we don't meet certain dates, completion of the work. On top of that we've got the cost of keeping our subcontractors, labour employed at this point, but not being able to access the site and the cost of our supervisors who are currently on site.

PN100

And do you have any idea what numerical value might be attached to those costs? What sort of costs are we talking about, do you know?---Approximately 160,000 at this point.

PN101

Commissioner, I have no further questions. I pass the witness to the respondents and the Commission for further examination, if it pleases.

PN102

THE COMMISSIONER: Thank you.

<CROSS-EXAMINATION BY MS ALLEN [9.39AM]

PN103

MS ALLEN: Hello, Mr Ruoso. My name is Kaitlyn Allen. I am a research officer with the AMWU. I've just got a couple of questions for you today. The first is can you just go to the first page of your statement? In the heading part it talks about Kafer Integrated Services Pty Ltd. We're just wondering if Kafer Integrated Services actually have anything to do with this dispute and if not, why they're actually mentioned in your witness statement?---It was the pro forma that we had.

PN104

So you can categorically say that Kafer Integrated Services Pty Ltd has nothing to do with this matter?---It should read Clyde Babcock Hitachi.

PN105

I will now take you to a number of different parts in your statement, Mr Ruoso, firstly paragraph 2 and then going over to the chronology of events that you say have led up to this industrial action. We note in your statement, Mr Ruoso, that on a number of instances this issue has been brought up with the company. I just wanted to ask you, this issue was a site wide issue, is that correct?---A site wide issue?

PN106

It was affecting a number of different groups of employees here?---The original discussion was sent with a group of tube welders. That was the original discussion.

**** GARY JAMES RUOSO XXN MS ALLEN
PN107

But the original discussion about these tube welders was not certainly confined to CBHs directly employed people?---The original discussions that started on that sort of - about a week and a half ago now, was basically with the tube welders. We were approached by about six, approximately six people to discuss an issue on site with subcontractors.

PN108

And who employed these tube welders?---CBH. There's two forms of how we contract people. One is as subcontractors. One or two of those tube welders would have been subcontractors to us and then the rest are employed directly by CBH as wages employees.

PN109

I just take you to page 4 of your statement under the heading Friday, 14/10, which I believe relates to last Friday, 14 October 2005?---Yes.

PN110

Specifically to dot point 4 where you say:

PN111

2.30 mass meeting at the gate with all CBH employees, BMC employees and Valve Pro employees.

PN112

Do you confirm, Mr Ruoso, that there were other employees, that is at least BMC employees and Valve Pro employees at least involved in discussions about this matter?---That was my understanding at the time, yes.

PN113

I will just take you now to paragraph 7 of your statement, Mr Ruoso, which I believe is on the last page where you assert here that an AMWU delegate employed by Tarong Power made a number of comments about Valve Pro employees being covered by the CBH agreement and that they were instructed not to work. Who actually told you about this, Mrs le Corneau?---Rob Devries. He is the AMWU - I asked the - sorry, VRBT, Valve Pro employees, I asked their manager, sort of, what had happened that morning and he told me that they had been sort of spoken to by the AMWU, Rob Devries, the Tarong Energy employee, so I rang Tarong and asked Rob and he said that he had been given instructions that Valve Pro fell under the CBH EBA and that they shouldn't be on site and so they left site from that point. They were actually inside the gate in the crib huts.

PN114

Can you confirm that the Valve Pro employees were involved in the meetings leading up to people leaving site, or at least some?---Some. I am not exactly sure. There was definitely some of them involved in those discussions.

**** GARY JAMES RUOSO XXN MS ALLEN
PN115

So you would say that at the point in time that you alleged that there were discussions about whether or not these people were bound by the certified agreement in question, that these employees were certainly aware and have been involved in the dispute?---I think the employees were under the impression that they were covered by the CBH EBA for some reason and that's why they attended the meetings, but clearly we had been telling them that they weren't.

PN116

We don't have any more questions, Commissioner.

PN117

MR BROANDA: No questions from the AWU.

PN118

MR PRATT: Commissioner, I have one question.

<RE-EXAMINATION BY MR PRATT [9.45AM]

PN119

MR PRATT: Mr Ruoso, do you recall being questioned about the statements of Mr Rob Devries with regard to his instructions about coverage of the agreement or coverage of the Valve Pro employees? Do you recall those questions?---Yes.

PN120

You gave a response that was effectively that Mr Devries was acting himself under instructions. Do you recall that statement?---Yes.

PN121

My question to you is do you know from whom those instructions or whether or not Mr Devries divulged where those instructions came from?---He said they came from Mr Ian McCune.

PN122

Thank you, Commissioner. I have no further questions.

PN123

THE COMMISSIONER: Thanks. The witness can stand down.

<THE WITNESS WITHDREW [9.46AM]

PN124

MR PRATT: Commissioner, given that we're dealing with both matters at the one time and we're dealing in terms of evidence, I wonder whether or not - I am in your hands, Commissioner, whether or not you want some submissions to conclude the Tarong matter for which Mr Ruoso gave evidence before moving on to the Gladstone matter or whether or not we'll simply move on to - - -

PN125

THE COMMISSIONER: We might do the next set of evidence then come back to pull them together at the end of it all, I think.

PN126

MR BROANDA: Commissioner, I wonder if, just before the next witness gave evidence, if the Commission might indulge me with a very short comfort break? May it please the Commission.

PN127

THE COMMISSIONER: Would five minutes be sufficient?

PN128

MR BROANDA: Ample, Commissioner.

PN129

THE COMMISSIONER: We will adjourn for five minutes.

<SHORT ADJOURNMENT [9.47AM]
<RESUMED [9.54AM]

PN130

MR PRATT: May it please the Commission. We call to the stand by way of telephone evidence Mr Peter McKee. Mr McKee has produced a statement and that's been attached to the application and distributed among the parties yesterday. I have spare copies.

THE FOLLOWING EVIDENCE WAS CONDUCTED VIA TELEPHONE CONFERENCE AND RECORDED IN BRISBANE
<PETER ROBERT MCKEE, AFFIRMED [9.55AM]
<EXAMINATION-IN-CHIEF BY MR PRATT

PN131

MR PRATT: Witness, it is Dan Pratt here from the Australian Industry Group. I am going to ask you a few questions and then the parties may have some questions for you, including perhaps the Commission. Can you hear me okay?
---Yes, Dan.

PN132

Can I ask you to state your full name and address for the record, please?---Peter Robert McKee, (address supplied).

PN133

Thank you, Mr McKee. The issue we're dealing with today is, of course, an application for return to work orders with regard to two strikes, one at Tarong and one that I believe you're specifically going to turn to with your statement and your evidence and that's at Gladstone. Have you prepared a statement of your evidence in this matter?---I have.

PN134

Can I ask you do you have a copy of that statement with you?---I do.

PN135

For the purposes of identifying the statement that we have here at the Commission, you've signed the statement we have on 19 October, is that correct?
---That's correct, both pages.

PN136

Okay, it is a two-page statement. There are three numbered paragraphs in it, is that correct?---That's correct.

PN137

And your opening paragraph is:

PN138

I am the manager, Central Queensland -

PN139

and then a text underneath that which commences:

PN140

CBH was today approached -

PN141

?---That's correct.

PN142

Commissioner, if it pleases, I have one question in examination in chief, but prior to that I seek to tender - I beg your pardon. Mr McKee, do you swear that that is a true and correct statement of your evidence in this matter?---I do.

PN143

If it pleases the Commission, I seek to tender Mr McKee's statement as an exhibit.

**** PETER ROBERT MCKEE XN MR PRATT

EXHIBIT #A2 STATEMENT OF PETER ROBERT MCKEE

PN144

MR PRATT: Mr McKee, I have one question for you which deals specifically with regard to the cost that Clyde Babcock Hitachi is and/or will suffer as a result of this action. Do you have any evidence to give in that regard?---With regard to penalties at the completion of the job I assume you mean.

PN145

Yes. I guess the question is how much do you think this strike action will cost Clyde Babcock Hitachi?---Basically lost time due to the two days. We have approximately 45,000 I expect will be penalised due to late completion and that would be it.

PN146

And is that specifically with regard to the Gladstone work?---With regard to the work at NRG power station, yes.

PN147

In Gladstone?---Yes.

PN148

Thank you. Commissioner, I have no further questions. May it please.

PN149

THE COMMISSIONER: Thank you.

<CROSS-EXAMINATION BY MR BROANDA [9.59AM]

PN150

MR BROANDA: Commissioner, I just have one question. Something has just arisen while I've just been sitting here.

PN151

Mr McKee, my name is Derek Broanda. I am with the Australian Workers' Union. Mr McKee, you're the manager of Central Queensland for CBH. Do you have knowledge of what the CBHs workforce comprises of, what classifications you currently employ?---Classifications would be pressure welders, boilermakers, fitters, rigger/scaffolders and a couple of labourer trades assistant type people.

PN152

Does CBH do any electrical work at all at the moment?---Only maintenance work within our workshop.

PN153

Do you employ electrical people to do that work?---We do.

PN154

I have no further questions, Commissioner.

PN155

THE COMMISSIONER: Thank you.

**** PETER ROBERT MCKEE XXN MR BROANDA
PN156

MS ALLEN: We don't have any questions, Commissioner.

PN157

MR PRATT: Nothing further arising, Commissioner.

PN158

THE COMMISSIONER: Thank you, Mr McKee. We don't require our attendance any longer, unless you wish to stay on the line?---No worries. Thank you very much.

PN159

Thank you.

<THE WITNESS WITHDREW [10.00AM]

PN160

MR PRATT: Thank you, Commissioner. That completes our evidence. If the Commission is minded, I will turn now to our submissions. You've already heard from us with regard to jurisdiction existing and the elements required for the Commission to arrive at a position where it might consider to exercise its discretion which, of course, exists within the terms of section 127.

PN161

It is a discretionary power and we, of course, seek in both instances with regard to the application for Tarong and the application for Gladstone for the exercise of that discretion in the form of the orders that we've provided to the parties in draft form and to the Commission. The reason for that, of course, turns us to our earlier submissions on the elements of section 127 being made out and that is, of course, there is industrial action as defined.

PN162

It is currently taking place. It is action arising from an industrial dispute, the terms of which are captured in an already certified agreement which is in term and remains in term until 31 March next year. As, of course, we've alluded to already, the definition of industrial action has been met. It is a ban or limitation, it is a strike, of course, and it is a type of industrial action which doesn't at all fit within the terms of the exemption in subsection (g), specifically there's no hint of a safety concern here.

PN163

The references we've already made to Coal and Allied, a decision of the Full Bench with regard to this being not protected industrial action, we simply echo once again with the comment that we have an in term agreement, we have a dispute, we have an illegitimate claim for an additional $5 an hour based on what is a perception among the workforce that people doing similar work to them are paid at a higher rate.

PN164

That is, in fact, as we've demonstrated, not the case. There may be people engaged on similar work at a higher rate, specifically the welders who have been brought in at additional cost and inconvenience to our member so that our member might meet its contractual obligations to provide those skills. Our earlier comments are revisited in the sense that we would not have done that if, of course, we could have found labour locally and employed it directly in accordance with the wages and terms and conditions in the agreement.

PN165

So it is unprotected action, it is illegitimate industrial action and it breaches section 170MN of the Act and it also offends the terms of the Building Construction Industry Improvement Act. It is a claim for additional wages being supported by illegitimate industrial action, the type of which is not provided for in the relevant provision of the agreement.

PN166

The agreement specifically refers to, as the Commission has already noted, at clause B1(d) where employees might be directly employed under electrical classifications, then there might be a right reserved to open the agreement and renegotiate wage rates and allowances for all other classifications. Now, what is clearly in evidence before the Commission is that the source of this dispute is the rates paid to the welders and it might be that the argument comes before you that, look, there might have been electrical employees in that group, there might have been persons employed directly by CBH under electrical classifications and if that's the case, then we're absolutely within our rights to re-open the agreement and renegotiate rates, but not just for them, but for all other classifications and it might be that that is what's going to come before you in the form of this is not an illegitimate industrial action, this is not unprotected industrial action.

PN167

Our comment to that is there is absolutely no evidence at all before you to suggest that there are employees of electrical classifications whose wages are higher than those contained in the agreement and that that was the subject of discussions and the subject of these two unprotected industrial actions. What is before the Commission is very clear evidence that it is the rates of pay paid to the welders, specifically pipe welders or pressure welders, employed by a subcontractor and brought in from Melbourne to work at at least the Tarong site which is the source of the dispute.

PN168

One need only reconsider Mr Ruoso's statement and evidence and one sees very clearly that the discussions from Monday, 10 October, and the visits by the union have focused specifically and expressly on those employees and that class of employees. The only reference to a widening of the issue is on Friday, 14 October and I am reading from Mr Ruoso's statement:

PN169

Geoff Moore informed Gerry Gavanda at 1.30 the rigger/scaffolders were also now involved and a meeting would be held to decide a resolution.

PN170

So the get out clause is not available to either the employees or the unions in this instance or either of these instances. What would have to have occurred for them to be able to rely on that clause is a provision before you of evidence that employees of an electrical classification directly employed by CBH who have been employed on higher wages than those contained in the agreement had occurred.

PN171

That's the evidence that would need to be before the Commission before there would be some decision or could be some decision as to whether or not this was illegitimate industrial action or action that was provided for within the terms of the agreement, so in closing, Commissioner, there is jurisdiction. There is ample evidence before you to show that it is not protected industrial action.

PN172

It is currently occurring, it is in contravention of the Workplace Relations Act and the Building Construction Industry Improvement Act. There is evidence before you that the employee, our member, will have suffered and has already suffered considerable loss as a result of the unprotected action and in terms of the orders sought, in closing, Commissioner, they are very clear in their amended form, of course, seeking introduction from today's date rather than yesterday's date.

PN173

They are very clear about the relevant industrial instrument, they are very clear about the particular type of industrial action and they are very clear about specifically what sort of action mustn't be engaged in. It refers to, of course, refusal to work and, of course, the at work action which might include go slows or bans, overtime bans or any other type of ban.

PN174

It could not possibly be the case that a person in receipt of these orders could be confused as to whether or not they pertain to them or whether or not they pertain to a particular type of action. They are not printed in legalese, they are very clearly set out so that an understanding of them is easily had. Finally, Commissioner, the term of the order we've sought is very reasonable in the circumstances in our submission.

PN175

We are only seeking a week, but we've suffered great loss and we don't use this process or seek to abuse this process as a means of achieving an order that puts a noose around the employees' necks. We're certainly not about doing that. What we want is an order of a short duration to ensure absolutely in the minds of the employees that we are serious about this sort of conduct.

PN176

We will act in relation to this sort of conduct and we will give an undertaking to the Commission now that we will use our best endeavours to ensure that the orders are served for whatever reason as best we can on all of those employees present. We have included within the terms of the order service provision by the unions.

PN177

The unions have been actively involved in this situation. This is not a situation where the employees have simply disregarded the advice of their union and taken action at their own initiative. This is a situation where the union must bear some of the responsibility with regard to service of the orders and it must bear some responsibility with regard to ensuring those orders are met. Commissioner, unless you have any further questions, those are our submissions.

PN178

THE COMMISSIONER: You effectively amended your draft order earlier in respect to the date of operation of the duration of the order as sought. I presume you would as a consequence also wish to amend the title of the order at clause 1 which again refers to 19 October in your draft order and presumably also and particularly so for the respondent's and unions' purposes, the date in respect of subclause 3.3 ought to also be amended so that there isn't any expectation there is some sort of retrospective service obligation and it, too, should read 20 October 2005.

PN179

MR PRATT: Thank you, Commissioner, yes.

PN180

THE COMMISSIONER: That is in respect of both draft orders?

PN181

MR PRATT: It is, Commissioner, yes.

PN182

THE COMMISSIONER: Thank you. Nothing more?

PN183

MR PRATT: No, thank you, Commissioner.

PN184

THE COMMISSIONER: Thank you.

PN185

MR BROANDA: May it please the Commission. Commissioner, you somewhat stole my thunder there with the terms of the order, raised issues or jurisdiction as it previously stood. Commissioner, as we know there are two hurdles so to speak for the applicant in these proceedings to get over in 127 applications, the first being the jurisdictional matters which, now that Mr Pratt has amended the order in a couple of areas, I don't have any further comment on.

PN186

The other is the discretionary matter that in spite of the fact that the Commission might find jurisdiction, it's still an act of discretion whether the Commission chooses to issue orders. Now, Commissioner, in terms of that, I would submit what is before the Commission is in the worst case, in the worst light, is the employees jumping the gun in terms of the agreement specifically at part B, C and D.

PN187

What in effect has gone on, Commissioner, is the agreement does in fact provide for wages and allowances for employees of CBH under the given classifications. It does in fact provide for no further claims over and above the terms of agreement, with the one trap door so to speak being that all bets are off should the company engage persons in electrical trades over and above that which is provided for in this agreement. Now, the evidence before the Commission is that they do employ electrical classifications.

PN188

Admittedly, there is no evidence before the Commission about what rates and allowances those employees are on. As I say, Commissioner, in the worst case, what is going on here is the employees have jumped the gun. The employees have taken action prior to the relevant paperwork being filed and processed through the Commission, relevant paperwork being bargaining period, initiation of bargaining period notices. Potentially then, if those discussions proved fruitless, notices of protected action, et cetera, all things typically associated with taking action - - -

PN189

THE COMMISSIONER: I just want to clarify your submission there,
Mr Broanda. You're saying that what has happened is that the employees had been seeking to initiate protected industrial action for the purposes of a new agreement given that there were electrical classifications employed that - there were terms and conditions of employment in excess of those in this agreement?

PN190

MR BROANDA: That is my submission. It may be a submission that later proves to be mistaken. Nonetheless, what I am painting, Commissioner, is the worst case scenario that this Commission might find, being that the employees had jumped the gun and it goes to the legitimacy or the illegitimacy of the action that is allegedly being taken in the workplace at the two sites.

PN191

Commissioner, what the best case scenario is is that that door has been opened, that is that the company has employed employees in electrical classifications over and above the wages and allowances provided for in the agreement, again in which case the best case scenario is that the employees have again jumped the gun. In either event, it goes to the legitimacy or the illegitimacy of the action taking place which then lends itself to an argument to the Commission about the discretionary power open to the Commission to in fact issue orders or not.

PN192

We say, Commissioner, the AWU says that in this circumstance that the Commission shouldn't exercise its discretion. By the time that the orders come into effect, the majority of employees are scheduled to be back at work in any event and from the AWU perspective, if orders weren't - well, either way, whether orders are put in place or whether they are not put in place, the AWU will undertake to classify the situation with those electrical employees and in fact see if that door is open or not.

PN193

THE COMMISSIONER: I am just not too sure, you made reference to bargaining periods and so forth, I am just not too sure whether subclause D actually refers to the requirement to remake the agreement in its entirety such that a new bargaining period is necessary or whether it implies that there would be a negotiation followed by a variation to the agreement. I just make that point as a passing observation, if there is something brewing for the future.

PN194

MR BROANDA: Commissioner, and you're quite right, that's probably something that I would need to look further into, into the make up of the agreement and particularly speak to the people who made the agreement, the direct person from the AWU who entered into the agreement, potentially with the representative from the AMWU and the company to ascertain what was in the mind of the agreement makers at the time the agreement was made, particularly in reference to that clause and what the intention was at the time that the clause was written, the point being, though, Commissioner, whatever the situation, be it a requirement for a bargaining period notice and associated paperwork for protected action, et cetera, or simply a case of the agreement makers sitting around the table and talking about what might be achieved as a result of further negotiation, whatever the situation may be, there's a case for further investigation by the respective parties around the room today and coming back to the action that is said to be taking place in the two workplaces at the moment, it comes back to the legitimacy again, Commissioner, or the discretionary power of the Commission in terms of the legitimacy or the illegitimacy of the action taking place.

PN195

Commissioner, in short, the AWU - I have nothing to put to you in terms of the jurisdiction of the Commission. I do note, however, throughout the agreement, those dates which have now been rectified by the exchange between Mr Pratt and yourself, Commissioner. There is one minor matter that appears throughout the document in terms of the fax number of the AWU is incorrect. Where there's a reference to the AWU being 3221 8600, that number should in fact be 8700, rather than 8600. It's a minor issue, Commissioner, but one just to clarify for the record.

PN196

That being the jurisdictional matter which I neither support nor oppose about whether the Commission might find jurisdiction, the AWU submits it's still a discretionary matter and on the basis of what I have put to you, Commissioner, the AWU submits that this is a case where the Commission's discretion should be exercised and the negative being that no orders put in place and that the AWU undertake its best endeavours to return the workforce presumably with the co-operation of the AMWU to return the workers to the workplace without the need for formal orders. May it please the Commission.

PN197

MS ALLEN: Thank you, Commissioner. There's one preliminary matter that I'd like to discuss and that's in relation to the Gladstone application. I've had some discussions before these proceedings today with our assistant State secretary,
Mr Peter Lees, about the situation up in Gladstone. I think that it's important that we put this on the record and I understand that representatives from the company have been alerted to this issue as well.

PN198

Commissioner, there are employees up in Gladstone who are employed by Siemens that we've been instructed were called by the company yesterday, told that they are not to come to work in light of the - and I put this in inverted commas - "strike" that's happening. Commissioner, it's important from our perspective and certainly I am sure from the other unions who represent these employees that we put on the record that if - and I don't have any instructions about whether or not these employees are actually engaging in any legitimate, illegitimate or any other type of industrial action, that they are not subject to these orders.

PN199

There's been no application made on behalf of Siemens and certainly if you are of a mind to issue orders in this matter, these employees are not affected or compelled to comply with the orders. Other than saying what I've already said, Commissioner, I would say that the instructions that I have received is that these employees were actually phoned by their employer and told not to come to work. I just think it's important that we see the delineation between people who are employed by CBH and Siemens for the purposes of orders.

PN200

THE COMMISSIONER: Well, just whilst you're on that, for clarity purposes, Mr Pratt, can there be any inference drawn that your draft order if approved in any way could extend to such other employees?

PN201

MR PRATT: I don't think so, Commissioner. It pertains to with regard to specifically the Gladstone application, the words within it are specifically 2.4:

PN202

The members of the Australian Workers' Union and the AMWU employed by -

PN203

THE COMMISSIONER: Employed by - - -

PN204

MR PRATT: Yes -

PN205

at the employer's undertakings at Gladstone engaged under the agreement.

PN206

For purposes of clarity, Commissioner, and perhaps more out of an abundance of caution, we're happy to formally seek to amend the application and the draft order to make it absolutely clear as to who we're dealing with. How we might do that I am not entirely sure.

PN207

THE COMMISSIONER: If it was in your mind, or if it was your purpose, you could introduce a new subclause 2.5 and simply state for purposes of clarity:

PN208

This order is not to have application to any person other than an employee of CBH.

PN209

MR PRATT: I am happy to make that amendment.

PN210

THE COMMISSIONER: A direct employee of CBH. Ms Allen, does that meet your purposes?

PN211

MS ALLEN: Yes, Commissioner. We were just concerned that there could be confusion and ambiguity if the application stood as it did.

PN212

MR PRATT: So to conclude that issue, Commissioner, we're more than happy to make such an amendment in those terms.

PN213

THE COMMISSIONER: Can I just read out what I've drafted again and see whether the parties agree, so it will be a new subclause 2.5 in relation to - well, let's put it this way. For the purposes of dealing with the issue Ms Allen has raised, the draft order, that is the Clyde Babcock Hitachi Gladstone industrial action order, 19 October 2005, is amended by way of the insertion of a new subclause 2.5 which reads:

PN214

For purposes of clarity, this order shall not have application to any employee other than a direct employee of CBH.

PN215

MR PRATT: We consent to that, Commissioner, yes.

PN216

THE COMMISSIONER: Thank you.

PN217

MS ALLEN: Thank you, Commissioner. I just thought I would raise that in the beginning. This is obviously a 127 matter. We always in the beginning, Commissioner, talk about the Commission's discretion in issuing orders. We say that you should not use your discretion in issuing orders today. In relation to the Tarong matter, Commissioner, I note that the employees have voted to resume work at 7 pm today, or tonight.

PN218

We say that it's not a fruitful exercise to order employees back to work two hours before they have committed to start their shift again. We say that it will not - from a practicality sense, Commissioner, that two hour gap would be people who would be doing afternoon shift - would be day shift workers and certainly it would be not practical from a number of different perspectives for employees to come into work for two hours.

PN219

As I said, there has been a vote that work will resume at seven tonight at start of shift and certainly for the Commission to issue orders for people to start work at
5 pm would not be practicable. We say that the instructions that we've received and our understanding of this dispute is that the employees will be returning at
7 o'clock and therefore there is no reason why the Commission should be ordering these employees back when they have committed to returning to work tonight, anyway.

PN220

THE COMMISSIONER: Can I just ask, Mr Pratt, there is some synchronicity between the two draft orders in respect of their time, the precise time of commencement being 5 pm. Was it your intention that the draft order in respect of the Tarong matter have effect for the purpose of employees who would otherwise be working between 5 pm and 7 pm, the commencement of the night shift?

PN221

MR PRATT: Not necessarily, Commissioner. Our intention was to simply have the orders apply prior to the commencement of the night shift.

PN222

THE COMMISSIONER: In effect you're saying you want the orders issued at that time such that they have application on employees who are commencing work at 7 pm?

PN223

MR PRATT: Yes.

PN224

THE COMMISSIONER: So that the order - - -

PN225

MR PRATT: We don't seek to inadvertently capture, for example, an employee who was scheduled on the day shift or a shift that might be extending beyond
5 pm. That's certainly not our intention. Our intention is simply to have the order in force. Perhaps it could be worded to an extent that it says the first shift commencing after 5 pm.

PN226

THE COMMISSIONER: There is always sort of this conceptual issue here between the commencement of the order itself and the consequence that it has. If the order comes into effect at 5 pm, you're saying that its machinery should only - well, you're saying that, however, it should only have consequence for a certain group of people who would otherwise be commencing work at 7 pm. The issue is you can remove that complexity by having the order come into effect - if the order issues, it comes into effect at 7 pm. I must admit there's some conceptual difficulty in having an order come into existence, its effect only then being triggered some time subsequently.

PN227

MR PRATT: Commissioner, given there are two orders, it might be that with regard to the Gladstone order, the shift is due to commence at 6 pm. We might seek to vary the term and date and effect of that order so that it might read rather than 5 pm, as a time of coming into effect, instead it might read 6 pm which is the time the Gladstone night shift is due to start and with respect to the Tarong application, that might be better amended to read 7 pm which is when the night shift is due to start at Tarong.

PN228

In that sense, Commissioner, there ought not be any inadvertent capturing of employees who are between or betwixt as the case might be 5 pm and the ordinary starting time, but it's certainly on all fours with our intention that the orders simply come into effect and have effect for the commencement of both of those night shifts.

PN229

THE COMMISSIONER: Presumably in circumstances where orders issue, they issue prior to the time of their commencement, so their communication and dissemination occurs at a time usually, but not always, prior to - in this case, this scenario unfolded, the dissemination and communication of any order would be prior to, well prior to the commencement of the order itself, such that you should have no doubt that if the circumstances permit, have its desired effect.

PN230

MR PRATT: That's correct, Commissioner, and not to labour the point, but, of course, if the Commission is minded and we hope it is, to grant orders in those terms, 7 pm and 6 pm would be quite easily obtainable.

PN231

THE COMMISSIONER: Ms Allen.

PN232

MS ALLEN: Thank you, Commissioner. We certainly stand by our submissions that orders should not be issued in relation to these matters. I have just had a discussion with Mr Broanda from the AWU during your exchange with Mr Pratt. As I said, we stand by our position that orders should not be issued in relation to both of these matters. We say that employees have made a commitment that they are going to return to work.

PN233

This isn't a situation where there's open ended action, where the company does not have any certainty in which to rely upon when people are coming back to work. As I said, Tarong and Gladstone have both voted and made commitments to return to work 7 o'clock this evening for Tarong, 6 o'clock in the morning, I believe, for Gladstone.

PN234

Commissioner, in relation to Tarong, I think that it's a fruitless application with respect, that - well, I think that it's a fruitless application and say that it is wrong to press a matter and ask for the Commission to issue orders when employees are going to be back at work. It's certainly in our submission, Commissioner, a fruitless exercise and we would ask that the Commission uses its discretion on both matters to not issue orders.

PN235

We say as I said before that these employees have said that they're going back to work. There is certainly no, from my instructions no planned meetings beforehand. People will be resuming work at those times, so the company can take comfort and certainty that people will be going back to work. Commissioner, if you are of the mind of issuing orders, we would say that as an alternative in issuing an order for people to go back to work at the times at which you and
Mr Pratt have just discussed in his amended order, that I believe that it's not uncommon in this jurisdiction for orders to be issued that actually are held in abeyance and only come into effect if workers don't actually return to work.

PN236

As I said before, Commissioner, we are confident that people will be going back to work at the times on which they have voted, so if you are of the mind in issuing orders in this matter, we respectfully seek orders to be issued only if workers don't return to work at the times on which they have committed and I believe that the AWU would support those submissions as well, Commissioner.

PN237

Commissioner, my instructions are that in both cases there has been a relatively - well, there has been a harmonious employment relationship on site, that this is a dispute that has arisen out of - well, can I just back track for a minute, Commissioner? We say that industrial disputation is not something that is a regular occurrence on these sites. We say that there is a good relationship generally between the employees, the employer and the unions and in that vein, Commissioner, we say that orders aren't appropriate.

PN238

We say that people have said that they're going to go back to work. We're confident that we're going to be able to work through these issues which are in dispute at the moment and that orders aren't going to actually progress or change anything in relation to what's happening on site. Commissioner, we would obviously ask that if you are of the mind of issuing orders, that the order is limited.

PN239

We say that the period of time, while it's not as excessive as some of the applications that are before you, is certainly in light of the harmonious employment relationship history that are on site at Tarong and Gladstone that this is excessive and it should be limited accordingly. Commissioner, that's all we have to say today. If you have any comments or questions, we're happy to answer those. I don't know if Mr Broanda wants to make any further submissions, but we certainly, as I said before, ask that you do not use your discretion and decide not to issue orders in these matters. May it please the Commission.

PN240

THE COMMISSIONER: Thank you.

PN241

MR BROANDA: Commissioner, I wonder if I just - just to reinforce Ms Allen's comments about the AWU position in terms of orders being held in abeyance, just to confirm the AWU would support that avenue should the Commission consider that orders may be necessary.

PN242

THE COMMISSIONER: Thank you, Mr Broanda.

PN243

MR PRATT: Commissioner, just to reply to those additional points. It was specifically raised by the AWU, of course the Commission referred Mr Broanda to the technical difficulties even if the so called get out clause was brought to life or triggered by the situation in Gladstone. It certainly doesn’t seem to have been triggered by the situation in Tarong however even it has no notice has been given of the type provided for in section 170MO and the Commission has already referred to the problem of whether or not a bargaining period might exist. The greatest hurdle of course is 170MN which provides in very clear terms that no industrial action can occur whilst an agreement is in term.

PN244

I am fully aware of the M West arguments that might exist but this not an M West situation. It is a situation which has neither triggered the get out clause nor does it in any way bring the action within the terms provided for in the Act. That said I turn now to one point that I'd wish to reply with regard to Ms Allen's submissions. The question of the futility or suggested futility of issuing orders which might come into operation at a time where employees have in their magnanimity indicated they will come back to work is an old problem and it's a problem that we've born in many past where the action and the requirements for jurisdiction and evidentiary requirements might mean that by the time we get on and bring the matter before the Commissioner there is little time left.

PN245

In our respectful submission that ought to be absolutely no impediment whatsoever to the Commission. That, with respect, is the problem of the parties. What is relevant to the exercise of the discretion is that the action that is currently in progress is illegitimate action, it is in breach of both of those Acts that I've cited. The comment was also made that this is not an open ended action. It is still unresolved. The issue has not moved at all in any way shape or form since the employees took their strike. The only thing that has happened is we have sought orders. We have not and at this stage we make no suggestion at all that we will consider the $5 claim that is made illegitimately when one considers the terms of the agreement and its effect being in term.

PN246

So the comment that the action is not open ended is entirely wrong. The issue still remains unresolved. There is no small amount of friction between the parties arisen as a result of this issue and I'm sure it will continue. Having said that we don’t for one minute suggest that we are bringing our application under the heading of expected and probable action. That is why we've only sought a very short term of the order. We are not seeking a month or three months or to the end of the agreement of 31 March next year. We are not suggesting nor is any of the evidence suggested that there is expected or probable action. However my comment in reply, we take absolutely no comfort whatsoever with the suggestion that there are no planned meeting between now and the indicated resumed work time.

PN247

So we are not seeking a long order. We are not seeking or suggesting to the Commission that the order take the form of expected and probable action however we do wish to rebut the suggestion that the action has brought the matter to a close, it certainly has not. It has simply opened a new chapter in the issue which remains unresolved but those are our submissions in reply may it please.

PN248

THE COMMISSIONER: Good, thank you. In considering the evidence and the submissions today I state the following. It appears to the Commission for the purpose of section 127, it appears to the Commission that industrial action is happening and that industrial action is for the purposes of section 4 of the Act and is not action that is exempt for purposes of that section. There's a state that appears to the Commission that that industrial action is currently happening. For the further jurisdictional preconditions of the Act the Commission is satisfied that the work that is subject to this application is work that is covered by a relevant certified agreement for the Act's purposes and that being the Clyde - they've got Hitachi Australia Pty Ltd Certified Agreement 2003.

PN249

The Commission is also satisfied that the application has been made an appropriate person. In view of those findings and of the evidentiary case and submissions that have been put to the Commission, the Commission is satisfied that the necessary preconditions for making an order have been satisfied. The issue then turns to the exercise of the Commission's discretion that is whether or not it will in fact make an order. I have some regard to a submission that orders shouldn’t be made for redundant purposes particularly in respect to circumstances when there is an imminent and demonstrable intention to return to work but in the circumstances before me today I have no evidentiary case to that end and in any event it is not necessary persuasive in its own right.

PN250

That is that in the circumstances of this case the fact that an order may only operate upon the intended return to work in itself isn’t persuasive that an order should not be made. I am inclined to make an order in the circumstances before me for particular reasons but particularly so for the fact that industrial action has emerged. The industrial action that has emerged has caused and is likely to have caused cost to the employer and not of an insignificant commercial cost and other disruption as well. I should also at this point, point out that I'm talking generically in relation to - I'm drawing findings generically in relation to both applications that are before me.

PN251

I am also aware as a consequence or I'm also of the view as a consequence of submissions and the evidentiary case that it is unlikely that the industrial acting that is happening in the current circumstances at either location is likely to be protected industrial action. I note the certified agreement, the Clyde Babcock Hitachi Australia Pty Ltd Certified Agreement 2003 contained clauses in part (b) which are express in their terms in relation to the application of the agreement in respect of the wages and conditions in that agreement and also contains the relevant clauses for purposes of exceptional circumstances or exceptions clauses.

PN252

It is not my view on the evidentiary case that there is a likelihood that those exception clauses have been triggered in the current circumstances. Generally therefore as I've already implied it is the Commission's intention to make an order in respect to these two applications. The Commission is of the view that the duration of the order is not extended in its terms and that the duration is not onerous or in the circumstances nor creates an unnecessary burden or unreasonable burden on the respondent and employees such that I would perhaps in other circumstances give consideration to.

PN253

In my view the duration of the orders sought are reasonable and appropriate in the circumstances. I've noted the submissions in respect of the altered commencement times for the respective orders. In respect to the Gladstone order the order will have effect at 6 pm tonight. In respect to Tarong the order will have effect at 7 pm tonight. Are there any issues of clarity or certainty that the parties wish to raise with me about the terms of these orders which will issue shortly?

PN254

MR PRATT: No, Commissioner.

PN255

MS ALLEN: No, Commissioner.

PN256

THE COMMISSIONER: Good, thank you very much. We're adjourned.

<ADJOURNED INDEFINITELY [10.44AM]

LIST OF WITNESSES, EXHIBITS AND MFIs

GARY JAMES RUOSO, SWORN PN85
EXAMINATION-IN-CHIEF BY MR PRATT PN85
EXHIBIT #A1 STATEMENT OF GARY JAMES RUOSO PN98
CROSS-EXAMINATION BY MS ALLEN PN102
RE-EXAMINATION BY MR PRATT PN118
THE WITNESS WITHDREW PN123
PETER ROBERT MCKEE, AFFIRMED PN130
EXAMINATION-IN-CHIEF BY MR PRATT PN130
EXHIBIT #A2 STATEMENT OF PETER ROBERT MCKEE PN143
CROSS-EXAMINATION BY MR BROANDA PN149
THE WITNESS WITHDREW PN159