C2005/5124, Transcript of Proceedings [2005] AIRCTrans 2324 (9 November 2005)

TRANSCRIPT OF PROCEEDINGS

---

Workplace Relations Act 1996 13338-1

COMMISSIONER REDMOND

C2005/5124

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION
AND
SHERRIN HIRE PTY LIMITED BOOM LOGISTICS LTD CARRINGTON STEEL PTY LTD
s.99 - Notification of an industrial dispute
(C2005/5124)

SYDNEY

10.07AM, THURSDAY, 27 OCTOBER 2005

PN1

MS L CHARLSON: I'm from the CFMEU and with me is MS P RODNEY and MR R CUNNINGHAM of the CFMEU.

PN2

MR M SANT: I seek leave to appear in respect of matter 5124 of 2005 and in relation to those proceedings I would be acting for Sherrin Hire Pty Ltd and Boom Logistics Ltd. Commissioner, I understand that in that dispute notification the company, Carrington Steel Pty Ltd, is also listed as a respondent, I don't appear on behalf of that company. That company has no connection whatsoever to Boom Logistics Ltd and Sherrin Hire Pty Ltd. In fact, it was the company that used to run the Carrington business before that business was acquired by Boom Logistics Ltd.

PN3

THE COMMISSIONER: Yes, thank you. Are you appearing in the other matter?

PN4

MR S GOULDING: Yes, I appear on behalf of Sherrin Hire.

PN5

THE COMMISSIONER: Thank you.

PN6

MR SANT: Commissioner, if you just excuse me, I should have mentioned that Mr Apthorpe, A - p - t - h- o - r - p - e, is here as well. He's instructing me on behalf of Boom Logistics Pty Ltd.

PN7

THE COMMISSIONER: Yes. Any objections?

PN8

MS CHARLSON: No objection.

PN9

THE COMMISSIONER: Leave is granted.

PN10

MR SANT: Thank you, Commissioner.

PN11

MS CHARLSON: Thank you, Commissioner. You'll recall that this matter was last before you ten days ago on 17 October of this year. On that occasion the union raised a number of matters of concern to us which were also set out in our dispute notification and they include the ongoing failure by Sherrin Hire to comply with its certified agreements, the failure by Sherrin Hire to produce documents in accordance with a summons issued by the Commission on 18 May, and also the intention expressed by Sherrin Hire and Boom Logistics to move employees around, employees presently employed by Sherrin Hire to become employed by Boom Logistics, and vice versa, and for those employees to change in their coverage in terms of the enterprise bargaining agreement.

PN12

The union is concerned, we still believe the company is placing pressure on employees to induce them into agreeing to the new arrangement. The union is also extremely concerned about the respondent's delay in addressing the ongoing issues of lack of compliance with the enterprise bargaining agreements and also the issue of the failure to produce records. The union has written to the company on a number of occasions asking them to fully comply with the summons issued by Commissioner Harrison on 18 May.

PN13

Commissioner, you'll recall that on the last occasion you directed that the parties meet to discuss the matters in dispute. Unfortunately, three days after the last occasion the union received a letter from the company's representatives attempting to place a number of conditions on that meeting and those conditions were not acceptable to the union. Of particular concern was the respondent's stated intention to refuse to discuss the company's lack of compliance with its current agreements and the consequent wage claim and this is, as we've said, an issue that's been in dispute between the parties since 2004.

PN14

The union's members are naturally concerned that they're not prepared to enter into negotiations to change their current terms and conditions of employment when their current employer is not complying with its obligations under the existing enterprise bargaining agreements and refuses even to discuss that lack of compliance. Commissioner, there has been one further development since the last occasion and that is on Saturday 22 October, last Saturday, the respondents required a 100 tonne crane from Carrington yard to be operated. Instead of following the usual procedure, they asked someone from the Sherrin yard to operate that Carrington crane. The person refused, but nevertheless Commissioner we consider that that's an indication the company is attempting to move ahead with its proposal to move employees from one yard to the other and to have employees operating the plant from the other yard.

PN15

Commissioner, on your suggestion, we've asked that both of these matters be listed before you, in order that you can deal with the failure of the company to comply with the summons. On the last occasion, Mr Goulding, we understood gave an undertaking that he would produce the outstanding records to
Mr Cunningham on the meeting that was foreshadowed on that occasion. We still haven't received those documents, so that's our major concern.

PN16

THE COMMISSIONER: That may be because the meeting didn't go ahead.

PN17

MS CHARLSON: Yes, Commissioner. The meeting was to go ahead today, but it didn't go ahead. We asked Mr Goulding whether he had those documents here today and he has said no. Ms Rodney of the CFMEUs wage claim department is here if necessary to go into more detail about what the records sought are and the underpayments the CFMEU alleges have occurred and are occurring. I've got a copy of our letter of 11 August to hand up to the Commission if that's convenient, setting out the alleged underpayments and the issues about which I'm discussing and also the documents that remain outstanding under that summons.

PN18

Commissioner, what I would suggest, if Mr Sant's agreeable, is that it might benefit the parties to go off record to discuss some of these matters. What we would propose in terms of trying to resolve the matter today is that a meeting be organised to take place within one week at which all of the outstanding matters in dispute be discussed by the company and the union. Commissioner, we'd also seek undertakings from the company that in the intervening time the company still does not intend to move people from one company to another, either from Sherrin to Boom or Boom to Sherrin.

PN19

Commissioner, there is one further issue I should just flag and that's in relation to payment of delegates who attended before you on the last occasion. I understand that there was some difficulty for those delegates in getting paid. They've finally been paid today I understand, after the intervention of the union, and I understand there's an obligation under the enterprise bargaining agreement that they be paid for attendance at the Commission. So, Commissioner, we'd ask that you direct the company to comply with that obligation in respect of the delegates present here today and there are five delegates present here today.

PN20

THE COMMISSIONER: Yes. Yes, Mr Sant?

PN21

MR SANT: Commissioner, it seems to me - - -

PN22

THE COMMISSIONER: Just before you start, you might address me on this, when I gave the direction last time this matter was before me for the parties to meet and confer - and I've seen no evidence to the fact of what the union has just referred to, that is, that the company put conditions on what that meeting would talk about - I made no such recommendations that either side would put conditions on that meeting. I told the parties that they should meet and confer and discuss all the problems. I'm surprised to hear that the company attempted to put some restrictions on it. Now, you might have a different slant on that. Please address me.

PN23

MR SANT: With respect, Commissioner, that's not as the company and the advocate for the company understood the position following the session with you a couple of weeks ago. As I understand our position it is that our client is even prepared today to sit down and have a meeting if the relevant people are here - and I understand not all the relevant people are here from the union's side - to discuss this issue about the restructure of the two operations. That is something the company really wants to do and thinks that should happen as soon as possible.

PN24

The company made an offer during the course of those proceedings on my reading of the transcript that there would be such a meeting and the company wanted to have that meeting to explain to employees and the union the proposal or the arrangements that might apply to a restructure. During the course of those proceedings, as I understand it, the issue of the wage claims or the underpayment claims was raised. The advocate for the companies, Ms Dent, suggested to the Commission and to the other parties that that matter ought be properly dealt with by having the issue referred back, or the matter before Commissioner Harrison relisted for the purposes of determining whether in fact there had been compliance or non-compliance in respect of the summons that he issued.

PN25

Presumably, that is a matter for which has been before Commissioner Harrison on a number of occasions and for which he has some level of understanding of the issues between the parties. As I understand my reading of the transcript, Commissioner, is that you said perhaps that is the right thing to do. Now, it is for those reasons that these unfortunate events have happened, as I understand it. The company's position has been that every time it seeks to engage the union in respect of the restructure issues the discussions are sidetracked unfortunately by the outstanding underpayment issue. The company took the view that the most productive way of progressing the discussions about the restructure was to have the discussions deal with those issues.

PN26

Now, as I understand it, Mr Goulding is more than happy to meet with representatives from the CFMEU to discuss the underpayment issues, the alleged underpayment issues I should say, and the issue of the production of the documents. Those matters do not concern Boom Logistics Ltd. They only concern Sherrin Hire Pty Ltd. Now, it seems to me that for whatever reason, be it good or bad, the union is resistant to sit down and have the discussion about the restructure issues.

PN27

We don't agree, subject to your position, Commissioner, that these issues should be brought together. They are distinct matters. There is an outstanding issue as to whether there has been compliance with the certified agreement. In respect of that matter, there is an outstanding issue as to whether Sherrin Hire Pty Ltd has complied with the summons issued by Commissioner Harrison. There is another issue, an entirely separate issue, involving Boom Logistics Pty Ltd and a restructure of its operations within the group.

PN28

I think the suggestion that we go off record, Commissioner, to have a chat and see whether we can work out a plan to progress it is a great suggestion by my colleague and I would be supportive of that approach.

PN29

THE COMMISSIONER: Yes. Anyone else want to add anything. Do you want to respond to anything?

PN30

MS CHARLSON: Commissioner, just very briefly before we go off record, I noted that you said that you hadn't seen any evidence of the conditions that the company had attempted to impose on the meeting. I'm just wondering whether you didn't receive the full amount of the correspondence forwarded by the union to the Commission. We sent a letter to the Commission, we sent it to Commissioner Harrison, given his background in this matter - - -

PN31

THE COMMISSIONER: Yes. It's now in the file. I haven't read it.

PN32

MS CHARLSON: Yes, right. Our letter refers to the letters that were sent. The relevant letter in which the company attempted to impose its conditions is the letter dated 20 October 2005. It's about the fourth document or the fourth page in the pile of documents that we forwarded to you. That's the document in which the company said and I quote:

PN33

Our clients will not be entering into any discussions in relation to the wage claim particularly as the wage claim ...(reads)... current dispute, was not the subject of our invitation to meet, and subsequently the Commission's order.

PN34

That was the main concern of the union in respect of that letter. There are some other matters also of concern, but that was the outstanding matter, Commissioner.

PN35

Commissioner, Mr Sant has made some similar comments today about it being the sole concern of Sherrin Hire, the wage claim, not the concern of Boom. The unions take an issue with that approach in our correspondence with the companies and we've pointed out that the companies are closely related. The fact that the companies are attempting to redeploy workers from one to the other shows the closeness of that relationship and we believe that the wage claim and the lack of compliance with the current EBAs is relevant in any discussion which change the employment conditions that employees will work for either of those companies under, Commissioner.

PN36

In terms of the union's apparent reluctance to engage in negotiations in discussions, the union has been more than keen to discuss these matters. The union has in fact been directed by its members to resolve the matter of the wage claim. We're concerned to resolve that matter as well as these other issues that have been raised more recently by the companies.

PN37

THE COMMISSIONER: Well, for the record, before I adjourn into private conference to see if I can assist the parties, I've accepted this file at short notice again from Commissioner Harrison. Commissioner Harrison will be on leave for the next week or so and I don't intend to make any recommendations or make any decisions in respect of the summons he issued. As to the compliance or non-compliance of that, that is a document issued by him, thought about by him, and will be dealt with by him when he returns from leave if there still is a party by the parties; however, I am prepared to assist the parties in the other dispute if I can assist them. The Commission stands adjourned and I'll go into private conference, anyone not having anything to do with this matter please leave the room.

<NO FURTHER PROCEEDINGS RECORDED