BP2005/1210, Transcript of Proceedings [2005] AIRCTrans 2530 (19 December 2005)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 13608-1

DEPUTY PRESIDENT MCCARTHY

BP2005/1210

CBI CONSTRUCTORS PTY LTD PACIFIC INDUSTRIAL COMPANY (WA) PTY LTD MONADELPHOUS ENGINEERING PTY LTD OTTOWAY ENGINEERING PTY LTD AUSCLAD GROUP OF COMPANIES LIMITED
AND
AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION
s.170MW(8A) - Power of the Commission to suspend or terminate bargaining period
(BP2005/1210)

PERTH

2.36PM, THURSDAY, 01 DECEMBER 2005

PN1

MR A LUCEV: I seek leave to appear with MS D McCONNELL on behalf of the applicants.

PN2

MR C SAUNDERS: I appear on behalf of the AMWU with MR D McLANE

PN3

THE DEPUTY PRESIDENT: Yes, thank you, Mr Saunders. I should advise the parties I have received just a few moments ago a letter from BHP Billiton. I don't know whether either of the parties has got a copy of that. In case they haven't I'll provide it to them. I'm not sure what to make of it because it doesn't appear that there's any seeking of participation in these proceedings and I'm not quite sure what's actually being requested in that letter anyway. I will leave the parties to address me on that letter if they wish to. Yes, leave is granted, Mr Lucev.

PN4

MR LUCEV: Thank you, your Honour. Perhaps I can just open by giving you a very quick opening in relation to the project itself, the course of the negotiations which have left the making of the 170MW application and then what we suggest you might do in the circumstances of today before I seek to call Mr Zorzi. Your Honour's probably already aware that this project involves the construction of an open pit nickel mine and treatment plant including processing of ore from the mine. The progress of the construction is such that what I'll describe as the basic civil works are complete or almost so and work has moved on to the building of various structures including commencing in June 2005 the then ..... plant, various steel work and asset and power plant.

PN5

As your Honour will be aware from a prior life, that latter work involves significant metal trades involvement on a project such as this. The project is one which presently engages, your Honour, about 690 workers. Presently about 250 of those are metal trades employees and because of the ramping up of that metal trades type work over the next six months it's envisaged that a further 10 metal trades contractors will mobilise over about the next six months, so in brief terms that's where the project itself is at. In terms of negotiations in respect of industrial instruments, those negotiations on my instructions began in December 2004 so effectively some 11 to 12 months ago and it is the case that by July of this year, 2005, agreement had been reached with the CFMEU in respect of the terms and conditions to apply to their members who are engaged on the site both what I've described as the basic civil works but also in the structural work which follows that.

PN6

So since July 2005 and again your Honour will probably be more aware of this than I, there have been various certified agreements ratified by this Commission in respect of the site for the CFMEU to which the CFMEU are a party. The employees who have been working on the project have been working, as I understand it, essentially in accordance with what's described as a four and seven roster, seven days leave for every four weeks service since May 2005 and that's all employees on the site irrespective of whether the CFMEU agreements apply to them or not.

PN7

The course of the negotiations involving the AMWU have included an array of negotiations over the last nine months but for practical purposes beginning
March 2005 with a produced by the AMWU, and you will see this in the evidence, that it's on the basis of that document, an AMWU document, that the negotiations proceeded and it's that base document with some amendments obviously as the parties discussed these things and came to agreement which formed the shell if you like for the CFMEU delegates which have been registered. The negotiations proceeded after March and through to about the end of April 2005 and there were various issues in dispute at that stage with the AMWU. They included the four and seven roster, the AMWU wanting a four and nine, various allowances including site allowance and welding allowance and as I say, those negotiations were continuing, but eventually the AMWUs position was that they would hold off on the negotiations until such time as they had sufficient membership on site to actually put any form of deal to those members.

PN8

Our evidence will indicate, your Honour, that in October 2005 there were meetings between representatives of the applicants, Mr Ferguson who you know as the State Secretary of the AMWU and Mr McCartney who is a well known organiser with the AMWU, and at that time, in October 2005, the position put to the applicants was firstly that there were no complaints from the site about the draft agreement that was then in existence that had been negotiated to that point and the only issue, apart from a couple of individual contractor issues which weren't site wide issues, was the question of the rest day and in particular what day of the week the rest day would occur.

PN9

On the evidence that we propose to lead Mr Ferguson went so far as to say that if the claim for the rest day could be agreed, that the AMWU would probably agree to the rest of the agreement. That was the position in October but that position changed significantly and dramatically on 3 November with the re-emergence of Mr Saunders involvement in this matter and at a meeting with representatives of the applicants on the day Mr Saunders presented a handwritten list of demands and they were tendered as the AMWU claim for Ravensthorpe as at
3 November 2005. Now, your Honour will appreciate that that's some 11 months after negotiations commenced.

PN10

There were a number of claims which had not been discussed during previous negotiation sessions. They included a Ravensthorpe area allowance, some $20 per day, a 12 hour day work paid mid shift meal break and a confined space working in and around tanks allowance of some 50 cents per hour. The claims also included matters upon which the applicants considered that agreement had already been reached and for example, there were substantial increases in the claim for previously agreed items such as travel allowance and base rates and for the notification period for the cancellation of overtime.

PN11

As a consequence of that meeting on 3 November Mr Zorzi who has been leading as it were the negotiations for the applicants, wrote to the AMWU in a letter which I suppose is best put as a mixture of disbelief and outrage that after 11 months of good faith negotiations, after having been told by Ferguson that this was as good as agreed that a new series of claims and demands are put, particularly in circumstances where, as I say, Ferguson had led the employers to believe, the applicants to believe that the deal was as good as done and that the base document for the negotiations which have resulted in CFMEU agreement and which had been the ongoing base for the negotiations with the AMWU was itself an AMWU document which did not include the claims which emerged on 3 November 2005.

PN12

We say inherent in that is the concept that that indicates that the AMWU either were not or are not now genuinely interested in reaching an agreement where such demands are put so far into the negotiations and are so far at variance and at odds with the demands which had previously been put. So that's where the position rested, your Honour, as at 7 November 2005. Since then there have been various bargaining period notices served, various industrial action notices serviced which you will have seen, there has been a 170NA conciliation application served and there have been some discussions pursuant to that I understand here on
16 November before your Honour and between the parties on 18 November.

PN13

Notwithstanding those discussions, industrial action commenced on the site on
21 November on my instructions and continues, so come next Monday it will be a period of some two weeks continuous weeks of industrial action and there are some 190, approximately, metal trades employees on strike. There have been some further discussions between the parties. There has been further discussions between Mr McCartney and Mr Matthews who's, as I understand it, the site representative of the employers in which the claims have been outlined and the new claims, if I can put it that way, and the different claims for those which had, we say, earlier been essentially agreed upon or were pressed by Mr McCartney and there have been discussions involving Mr Saunders and others and Mr Zorzi and others on 23 November.

PN14

In those course of those discussions, your Honour, certainly my instructions indicate that Mr Saunders has indicated that the four and nine is an item which is not negotiable, but also that it's not specifically related to this project but intended to set a precedent for elsewhere. Now, we say that those circumstances certainly activate the provisions of section 170MW(2)(a) and (b) and I don't propose to take you to the law in opening, we can do that later on if it becomes necessary. But certainly where there was, we say, substantial agreement and we say in fact almost complete agreement except on one issue, a set of completely new demands, now a refusal to negotiate on a critical issue, namely, the four and seven, four and nine issue, the use of that issue effectively we say as a lance to open up that condition for other sites in Western Australia and ongoing industrial action would indicate that there is, we say, certainly not now a genuine attempt to try to reach agreement by the AMWU.

PN15

I also note in passing and I'm not sure whether it's simply an accident or whether it's one of those Machiavellian jests you get from a union from time to time but in fact there are two different claims entailed in the bargaining period notices, one company Ottoway Engineering has got quite a different claim in respect of this site to the other four applicant employers and that again would indicate that if that bargaining period notice was seriously intended, that there's no real genuine attempt to reach agreement here because as we all know, in the ordinary course of these things one agrees upon a standard set of conditions in respect of sites such as this.

PN16

Before I call Mr Zorzi, your Honour, can I say that as a consequence of discussions with my instructing solicitors I'm cognisant of the fact that there is still an adjourned section 170NA application before the Commission. Certainly from the applicants point of view we would have no objection and given that our position is not so intransigent as to admit of no prospect of agreement being reached here, perhaps with the Commission's assistance we would I think welcome the opportunity to see whether that application can be further utilised in an endeavour to resolve the issues.

PN17

Now, that ought not be interpreted as a sign of any weakness on our part, it's just that I think we all know and certainly aware of various matters in this place which demonstrate that there's more than one way to skin a cat at the end of the day and quite often the use of conciliation together with some direction from the Commission and it's a direction from the Commission in conciliation which I think it's fair to say the Commission has a duty to try to resolve these matters by conciliation before it does much else, we would say that it's appropriate and we would seek to do everything possible to endeavour to achieve an appropriate resolution to this impasse without necessarily having to proceed down the path of suspending or terminating the bargaining period, but if that's necessary then we'd seek to do that.

PN18

If the Commission please, I propose to call Mr Zorzi unless there's anything that arises out of my opening which the Commission wants to pick up on at this particular stage.

PN19

THE DEPUTY PRESIDENT: Perhaps at this point if there's anything
Mr Saunders wishes to say, I will hear from him, particularly in regard to those ending comments I suppose.

PN20

MR SAUNDERS: Yes, we're not opposed to going into conciliation conference to explore whether we can settle or agree to some conditions that are in dispute.

PN21

THE DEPUTY PRESIDENT: Yes. Mr Lucev, I take it what you're in a sense offering is a seeking of adjourning of the 170MW application and that to be in a sense parked whilst the 170NA proceedings are pursued and reactivated if you like?

PN22

MR LUCEV: Yes, I'm cognisant, your Honour, that the union has not long had, for example, Mr Zorzi's statement nor the attachments so in any event they might have sought to have his testimony adjourned to allow them to look at that. I also hasten to add this, that although I agree that for the purposes of the conciliation proceeding it's appropriate to adjourn the section 170MW application. It's certainly the applicant employers desire that we not spend too much time engaged in that process if it's not going to reach some - or doesn't appear to be going to reach some fruitful conclusion and therefore we wouldn't want to see the 170MW drift off into the sunset and we'd certainly like to see, if it's necessary, back in the Commission.

PN23

THE DEPUTY PRESIDENT: Yes.

PN24

MR LUCEV: As early as possible next week.

PN25

THE DEPUTY PRESIDENT: In some sense that's in the hands of the parties that would be involved in any 170MA discussions.

PN26

MR LUCEV: Yes.

PN27

THE DEPUTY PRESIDENT: If either of the parties formed a view that there was no real prospect of an agreement within a reasonable period of time, well, a period of time is a matter of judgment for those parties and if either of them formed that view and pursued and if I agreed then presumably the 170NA proceedings would be at an end and these proceedings would be reactivated as a matter of some urgency I would expect.

PN28

MR LUCEV: That was the point that I was about to make, your Honour, but your understanding of our position in that respect is correct.

PN29

THE DEPUTY PRESIDENT: Yes. Well, that wouldn’t change your circumstances or your attitude to the suggestion I take it, Mr Saunders?

PN30

MR SAUNDERS: No, sir.

PN31

THE DEPUTY PRESIDENT: Before I adjourn the application I take it,
Mr Lucev, that the nature of your application and the nature of your statement you're not relying on 170MW(3)? The reason I raise that is that the letter that you may not have had the opportunity to read from BHP Billiton, while it doesn't state as much, there seems to be some sort of hint, although they're not present in these proceedings or seeking to intervene in them, some hint of 170MW(3), but your instructions at this point I take it are you relying on MW(2)(a) and (b)?

PN32

MR LUCEV: Certainly my instructions from the contractors concerned are to rely on 170MW(2)(a) and (b). One assumes that if BHP Billiton have a view they might seek to appear and bring their point if that's their desire.

PN33

THE DEPUTY PRESIDENT: Yes. Well, I will adjourn these proceedings. I will re-list them upon request of the applicants to the proceedings. We will now go off record.

<ADJOURNED INDEFINITELY [2.58PM]