C2004/6501, Transcript of Proceedings [2005] AIRCTrans 371 (15 February 2005)

1800 534 258

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 10314

COMMISSIONER HARRISON

C2004/6501

s.127(2) - appln to stop or prevent industrial action

McConnell Dowell Barclay Mowlem Joint Venture
and
Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union
(C2004/6501)
Dampier Port Upgrade McConnell Dowell Barclay Mowlem Joint Venture Metal Trades Certified Agreement 2004

PERTH

9.34AM, WEDNESDAY, 02 FEBRUARY 2005

Continued from 21/1/2005

PN86

MR S HARBEN: I seek leave to appear on behalf of the applicants in these proceedings.

PN87

MR L EDMONDS: I appear on behalf of the Australian Manufacturing Workers' Union. I note that Mr Harben seeks leave. For the purposes of the Act we don't consent, so Mr Harben needs to satisfy the Commission as to why he should remain, sir.

PN88

THE COMMISSIONER: Mr Harben?

PN89

MR HARBEN: Sir, the matter is both factually complex and raises complex legal issues under the Act with respect to the genuineness of industrial action, whether or not there is actual safety issues occurring on the site. We have been on record in these proceedings since December, sir. It is appropriate for us to continue to act on behalf of the applicants and all key employees. That is my submission.

PN90

THE COMMISSIONER: Thank you. Mr Edmonds?

PN91

MR EDMONDS: If the Commission is satisfied sir, that it was directed under section 42 of the Act, sir, we certainly don't take it any further other than to say that we don't consent.

PN92

THE COMMISSIONER: All right. For the purposes of consistency, at least I will grant leave for Mr Harben to appear. Mr Harben?

PN93

MR HARBEN: Thank you, sir. I understand that this matter was listed before the Commission for a report back. As it transpired, industrial action commenced occurring yesterday at approximately 10 am on the site, which is the subject to these proceedings. We say the industrial action was unlawful and that given that the matter was before the Commission, it was appropriate for an application to be raised for an interim order pursuant to section 127(3)(a) of the Act. Our position is that we would seek to press the application for an interim order pursuant to section 127(3)(a) given that this morning, there was no listing for such an order. I am in the Commission's hands with respect to whether or not you are prepared to entertain that application.

PN94

THE COMMISSIONER: Yes. What is the current situation now? Is the action continuing?

PN95

MR HARBEN: I am instructed that the employees returned to work this morning.

PN96

THE COMMISSIONER: Is that unconditional or was there any other detail?

PN97

MR HARBEN: I understand that when the industrial action was initially taken, it was taken on the basis that the employees would return to work without the need for a further report back meeting. Now, I have no instructions whether or not there was a report back meeting this morning before return to work, but I certainly understand that the employees have returned to work.

PN98

THE COMMISSIONER: All right, thank you. Perhaps Mr Edmonds might be able to reveal some more.

PN99

MR EDMONDS: Yes, I suppose the first issue I need to address is this application. It seems almost a fairly abusive process sir, in that we have got an application that has been hanging around since December with particulars substantially different to the situation we find ourselves in today, in which a previous interim order has been issued on this matter by DP McCarthy. The dispute that was at issue when this application was lodged has now been resolved I suppose, and it seems to me that the applicant is just intending to keep it alive, I suppose, indefinitely in order to ensure that they have always got an application on foot. That is certainly not the proper use of a section 127 Application. In these circumstances, to come here in February after this application was lodged on 7 December, it certainly doesn't appear appropriate and it certainly doesn't accord with the principles of the Act, which is that a section 127 application should be dealt with promptly.

PN100

Now the dealing with a section 127 application promptly is not simply a device that suits the applicant. It is also in the respondent's interests to have these sort of applications dealt with promptly and this one has been hanging around for some three months. The particulars of this particular application or the particulars at this point of time are different than the particulars or the grounds in support of this application when it was lodged. Quite frankly, sir, we would say that the application itself is stale I suppose, and should not be entertained, and certainly an interim order should not be entertained in circumstances where the application is two months old and the applicant has failed to properly progress that application within the last two months.

PN101

Leaving all that aside sir, which is a procedural issue I suppose or a question of procedural fairness, what I can say is that the workers returned to work this morning. There was no report back meeting from what I understand. The substance of the disputes, I suppose, which occurred yesterday, there is three of them.

PN102

The first issue is that there was a ship tied up at the Dampier port sir, which had a large amount of steel that needed to be unloaded. I don't have the name of the ship but I understand it is from Croatia and the workers' project were compelled to unload that particular ship, which we say that outside the scope of their certified agreement, there is no provision in that certified agreement for the unloading of ships. That was work that is properly done by a stevedore or by stevedores, sir and not by construction workers.

PN103

So we would say, sir in the first instance, the workers have been instructed to undertake work which is unsafe and for which they are not properly trained. There is also work I suppose that is in conflict with agreements which the ship owners themselves have with the International Transport Federation sir, which is that any work taken on the unloading of ships shall be done by the Maritime Union of Australia sir, from what I understand.

PN104

So that was the first issue, sir, the second issue was there was a safety issue on site. From what I understand, a six tonne steel girder was dropped on the project. I understand it has been dropped into the ocean, sir and I am not sure if it is going to be or able to actually be recovered. It was in the process of being installed onto the port or onto the upgrade itself, sir, in the construction process and it was essentially knocked off, from what I understand, sir, by another part of the project. There was an uncontrolled fall, I suppose, into the ocean sir. Unfortunately no one was injured sir, but the potential was indeed there for someone to be injured in that particular accident.

PN105

Following that accident sir, I understand Mr Curry attempted to affect entry onto the site to investigate the circumstances of that accident and was denied entry by the applicant to the site, which we say is a breach of the agreement, a breach of the Act or a breach of the Mine Safety Inspection Act. So we would say in those circumstances, sir, the workers took action sir, but we would say certainly, the action that occurred yesterday, we would certainly say sir, it falls into the category of action, I suppose sir, which is in response to a breach of the agreement by the employer. In those circumstances, sir, we would say that that is a relevant consideration, that the employer had breached the certified agreement and had breached the Act. In those circumstances, sir, we would say it is open for the Commission not to use or to use their discretion to not issue an order in those particular circumstances.

PN106

I understand that there is no ongoing action in relation to those issues but issues of this kind are certainly a concern for the union. Issues in relation to the applicant breaching the certified agreement and breaching the relevant safety provisions on the site are a concern. At this point, sir, there is no further action threatened, impending or probable in relation to those particular issues. So we would say, sir, that there is no grounds, I suppose sir, for an interim order to issue. There is no action occurring at the moment. There is none that is threatened, impending or probable. Those issues that led to the industrial action which occurred yesterday are unlikely to occur again, so in those circumstances, we would say that - well, we would certainly hope that they are unlikely occur to again. So we would say, sir, in those circumstances there is no grounds for arguing that industrial action is threatened, impending or probable and we would say, sir, again that this application 6501 of 2004 is not the proper application or is not the proper advice in which to advance the claim today for an interim order.

PN107

THE COMMISSIONER: Thank you. I should say, I did list this matter for report as distinct from hearing an application for orders. I did receive correspondence from Mr Willox of Freehills in which he said that the issues which were the matters before me on 22 January had been resolved, but to quote:

PN108

The joint venture doesn't press for an interim order at this stage, however the joint venture requests that its application for a section 127 order be listed by the Commission in Perth for one day as soon as possible on the basis of threatened and probable industrial action.

PN109

I took the similar view to Mr Edmonds, the original notification or application of December had really ran its course and I listed this matter for report simply for it to be updated. It seems, coincidentally though that further industrial action did take place yesterday, after Mr Willox forwarded his correspondence.

PN110

I do concur generally with the view that an application for a 127 order ought to be on the basis of current action, maybe the company did have some whiff of threatened and probable industrial action which did in fact occur yesterday, but we are now beyond that again and they are not the grounds that currently exist given Mr Edmonds' submission that there is no action threatened, impending or probable in the future. I doubt whether or not it would be a proper use of the Commission's procedures to simply leave an application lodged in December sitting there for possibly or potentially action at some time into the future.

PN111

MR HARBEN: Sir, perhaps I may be able to persuade you. That original application filed in December was filed with respect to the AMWU and its members. That application was in the nature of seeking an order for a pattern of behaviour or a pattern of conduct type one section 127 order in that there had been, and sir, you have no doubt reviewed the chronology, but there had been much industrial action during the early life of that certified agreement.

PN112

The particular issues that are particularized in that application were the subject of proceedings before McCarthy DP just prior to Christmas where the parties agreed to accept a recommendation to endeavor to resolve the issues that were currently live between the parties. Notwithstanding at that time, the applicant reserved its right to press for the pattern of behaviour order with respect to the foregoing industrial action. What occurs on 18 January is further industrial action and then again on 1 January, there is further industrial action, so what we would say is, is that the 127 order before the Commission certainly isn't stale.

PN113

We accept that perhaps the particulars within the application require some form of enlargement to add that additional industrial action, which we would say would support the making of an order that there had been a pattern of conduct, and that matter is, the application itself may be the subject of hearing at some point in the future, but certainly in the interim, whilst the matter is pending hearing, there has been two further episodes of industrial action in January and in February. What we would say is, is that until the matter is finally heard, it is appropriate for an interim order to be issued so that the applicant in these proceedings suffers no further damage or loss pending the final outcome of the 127 application which has been made.

PN114

It is not true, in my submission, that those matters within the original 127 application had been resolved by the parties. There are matters which, on my instructions, are still outstanding. There were additional matters raised by my friend when we were before Deputy President McCarthy which weren't the subject of the particulars of the application which subsequently became the genesis of the dispute and which the parties endeavored to resolve, and those matters related to working hours on the job.

PN115

There is now the two further episodes of industrial action which we say, when looked at in totality, discloses a pattern of behaviour by the union of failing to comply with the disputes settlement procedure in the agreement. Notwithstanding that, undertakings have been given by the union to exercise its best endeavors to resolve matters without taking industrial action. Certainly, based on the submissions made by Mr Edmonds this morning, he has acknowledged that there was a dispute. He failed to make a positive submission that there was any attempt by the union to pursue the disputes settlement procedure in the agreement. He has got up and said that the company has breached the certified agreement, which we would deny.

PN116

If the company had breached the certified agreement, the appropriate response for the union would have been to initiate a dispute under the disputes settlement procedure, but it failed to do that and it can't come to the Commission and say this morning, well you breached the agreement so we breached it back. That would be inappropriate.

PN117

It is our submission that the real reason for the dispute relates to the ship which was, until recently at the services wharf at the Dampier port. It was a Singaporean vessel with a Croatian crew, with a flag of convenience. It was attempting to offload steel. The manner in which the steel is offloaded from the ship is that the ship's crew who are trained, offload the steel onto the back of trucks. There is a contractor on the job who delivers the truck to the appropriate place on site.

PN118

There is a dispute, perhaps between the MUA and the ship and what we would say is, is that the MUA have enlisted the support of the employees on the site. They have taken industrial action in support of the MUA's claims that stevedores should be engaged in unload the ship, that our client, the applicant has been caught in the crossfire, that there is probable industrial action and there is probable industrial action for this reason. The ship has moved from the services wharf to another wharf on site or adjacent to the site which is colloquially known as the MOF wharf. There will be an issue when the steel is attempted to be removed off the ship onto the MOF wharf, potentially with respect to the MUA and how that is to occur - - -

PN119

THE COMMISSIONER: What is it called? The MOF - - -

PN120

MR HARBEN: MOF, sir, I understand it is an abbreviation, I'm not sure for what, but it is universally known as the MOF wharf. Then there is an issue of how the steel will be transported from the MOF wharf back onto the site to where it is required to be used on the project. There are a number of ways which that can occur, by road freight or by sea through the use of barges.

PN121

Depending on the way in which that steel is moved, we say there is potential for the MUA to become involved again, to agitate issues on the site and for further industrial action to occur. Given the manner with which the unions on site have conducted themselves with respect to disputes, it is highly likely that if the MUA are not happy with the way in which the steel is moved, that there will be a dispute and the response to that dispute by the unions will be to take industrial action.

PN122

The submissions here this morning would be this. That you have a discretion that you can exercise in terms of granting an interim order. We would invite you to exercise that discretion in granting the interim order. There clearly appears to be some serious issues here which need to be addressed through a full hearing. We would say the convenience is in favour of the applicant in having the order issues because it is the applicant that is suffering loss and damage by the ongoing industrial action.

PN123

In considering how the exercise of your discretion is used, that this project is significant, both to the state of Western Australia and the national economy and that is a fact that the Commission should take into account when considering the issue of exercising a discretion.

PN124

The basis upon which we would seek the order, is that the interim order be made pending the final hearing of this matter. The matter has been ready to be heard before the Commission previously and through going into conference, that was avoided. By and large the preparation of the matter should be a matter which is in the hands of both the unions and certainly from my perspective, with the applicant. It is a matter that could be listed for hearing for one or perhaps two days, given the expansion of the issues and pending a final determination, an order issues or the interim order discharged and the application dismissed.

PN125

There certainly has been nothing said by my friend this morning, to indicate to you that there is any intention of the unions to utilise the disputes settlement procedure under the agreement. There is certainly no history on the project of that ever happening and in those circumstances, we would say that is probable, that if there is another dispute on the job, that the response from the union and its members would be to take further industrial action.

PN126

The agreement is some 95 days old, 90 days old. There has been some 10 episodes of industrial action, so on average that is industrial action every 9.5 days. That sort of strike rate is not acceptable for this sort of project, when the unions negotiated a certified agreement only some three months ago. In all these circumstances, sir, we would say that it is appropriate at this point now for the order to issue on an interim basis and for orders to issue against both the AMWU and the CFMEU who are not present this morning.

PN127

THE COMMISSIONER: Thank you. Mr Edmonds?

PN128

MR EDMONDS: Yes, sir, thank you sir. I suppose the first issue that I would draw the Commission's attention, is that the applicant has actually presented no evidence to you today that any of these things are indeed true. All they have done is made assertions from the bar table that industrial action is threatened, impending or probable. They have made assertions from the bar table that there has been a history of industrial action on the site. But that is not evidence.

PN129

We certainly don't concede there has been any history of industrial action, except that there has been a history of industrial action perpetuated by the employer. The employer, earlier on these proceedings, earlier on this application, the employer consistently breached the certified agreement. Those were the submissions that we made to DP McCarthy. We stand by those submissions that the employer was acting contrary to the agreement and was compelling the workers to act contrary to the agreement. We say that the history of industrial action is indeed a history of industrial action, a history of breaches of the agreement and breaches of the Act perpetuated by the employer and not by the employees.

PN130

We say, sir, that in response to that, to those consistent breaches of the certified agreement and of the Act, the employer has forced the employees to certainly engage in some action, sir, and we say, sir, that in those circumstances, it is not appropriate that a final order should issue and it is not appropriate that an interim order should issue. We certainly don't concede there has been a substantial history of industrial action, there has been a few isolated incidents and there is certainly nothing to establish a pattern or certainly nothing to satisfy the Commission that industrial action is probable and that the failure to follow the certified agreement is probable.

PN131

We say that we have followed the certified agreement, we have followed the disputes procedure over a number of issues. If you recall, sir, or perhaps previously in front of DP McCarthy, there was a list of outstanding issues that were presented, I believe some 25 to 30 items long, sir, which I believe that most of those issues have been resolved through the use of the disputes resolution procedure, so it is simply untrue for Mr Harben to stand up and say, well there is no history of the disputes procedure being followed, because the history is indeed that the disputes procedure has been followed.

PN132

He is saying that there is a range of further particulars that are provided to the Commission that would satisfy the Commission that industrial action is threatened, impending or probable and to be honest, sir, we haven't received a chronology of events which they, I presume, have supplied to the Commission. The last one we received was 17 December 2004, and if there is a further list of events that has been supplied to the Commission sir, and hasn't been supplied to us, then we are not in an opportunity to respond, or we haven't had an opportunity to respond to those particular issues today, sir.

PN133

We further say sir, this application is stale. The particulars that were provided to the 131 workers when the application was lodged on 7 December, has not been subsequently - or those further particulars have not been supplied to those particular workers, who the applicant is seeking to bind by the order as well. We say, sir, in those circumstances, those workers don't have an adequate opportunity to respond. There is simply no basis for the interim order today, sir. There is no evidence in front of you that could lead you to conclude that industrial action is threatened, impending or probable.

PN134

There is some submissions from the bar table, there is chronology of events, all of which are disputed, sir, and there is no evidence from the applicant. It is up to the applicant, sir, to establish the basis for an interim order to issue or indeed to establish a basis for a final order to issue. It isn't a question of balancing up the submissions of the two parties. They actually have to delete some evidence that can lead the Commission to reasonably conclude that there is a basis for issuing an interim order or for issuing a final order, neither of which have been done in these circumstances and on that basis, sir, no order should issue.

PN135

THE COMMISSIONER: What can you tell me about the matter of the unloading of the ship?

PN136

MR EDMONDS: Well, sir, it has been difficult to obtain instructions on those particular issues. We certainly at no stage, concede that this is in any way a campaign to assist the MUA or anything like that, sir. We certainly don't concede that that is the case at all and that is, it is a disputed issue, sir, if I could put it that way, sir. My understanding, sir, is that the ship owners have reached an agreement with the International Transport Federation, that the MUA is to unload that cargo and I understand that that is to occur, that is that the stevedores are to be engaged to do that particular job.

PN137

I do have an email, sir. I am not going to hand it up to the Commission at this point, sir, because it is an email sir, that was copied to Colin Saunders, sir, who is the state president of the organisation from Chris Kane, who is the state secretary of the MUA sir, and I understand the substance of that email to be that the ship owner has reached agreement with the International Transport Federation to use local stevedores to discharge the cargo. That is my understanding, sir, I don't have anything more to advise the Commission of, other than that.

PN138

THE COMMISSIONER: Mr Harben has some instructions that the matter is still a live issue where his client could be affected. What do you say to that?

PN139

MR EDMONDS: Well, I suppose sir, if we had have been provided with those particulars beforehand, we would have had a great opportunity to seek instructions on those particular issues. But those particulars were not provided to us and indeed the correspondence from Mr Willox seeking the re-listing of this matter in the first instance, was not provided to us either. In those circumstances, I can't respond specifically to that issue, other than to say, sir, we don't believe the certified agreement compels our workers to unload the ship or the construction workers to unload the ship. I don't think that is going to occur, and we would certainly say that that is not a breach of the agreement, to not unload the ship.

PN140

Other than that, sir, I can't really say much on those other issues, sir, other than to put to you what I believe which is the case, and that is local stevedores are being engaged to unload the ship. This is a relatively recent email sir, it is dated 1 February 11.45 in the morning, that said in my understanding, I don't have anything more to put to the Commission other than that, but we would dispute that in any way, there is industrial action threatened, impending or probable. Thank you, sir.

PN141

THE COMMISSIONER: Thank you. Mr Harben?

PN142

MR HARBEN: Sir, if there is a dispute about the application of the certified agreement, there are a number of ways for that to be resolved through the disputes settling procedure and the agreement through accessing the Commission via section 170LW of the Act, through accessing the Commission through section 99 of the Act, through making an application to the Federal Court to interpret the certified agreement. It certainly doesn't say anywhere in the Act that to resolve an issue around the interpretation of an agreement, you can take industrial action. It seems that my friend has conceded that action has been taken over that issue. It seems that there is some degree of concert between the MUA and the AMWU through an exchange of an email advising the Metal Workers' Union that the dispute had been resolved. That may be evidence in itself which is sufficient to satisfy the Commission that these parties have been acting on concert and that the real genesis of this dispute is one of the demarcation issue about how work will be performed under the agreement.

PN143

In any event, the only further we have got with respect to Mr Edmonds' submissions is that he continues to fail to make a positive submission that with respect to this dispute, there has been any attempts to pursue the disputes settling procedure in the agreement. My recollection and I am prepared to be corrected on this, is that the 25 to 30 items in a list which were pursued through the disputes settling procedure were pursued following the taking of industrial action by the AMWU and then the parties agreeing to sit down and sort out those issues. Certainly not on the basis of the union contacting the employer and saying, look, we have got a dispute about these issues, but some certainly more akin to taking some industrial action, putting the gun to the head of the employer and saying, right, now we are going to sit down and resolve this after you have taken some pain, and I say I am prepared to be corrected on that, but that is certainly my recollection about how that little episode went along.

PN144

So we would say, in the circumstances, there is a clear pattern of behaviour taken by the AMWU and the CFMEU on this project, that they have failed to say or do anything that would satisfy the Commission that they have in the past followed the disputes settling procedure with respect to disputes. In accordance with how that disputes settling procedure should operate, that there is a likelihood of the re-agitation of issues concerning the movement of that steel, that the AMWU and the MUA are clearly in touch with each other about what is going to happen next and we would say, in all those circumstances, that it is probable that if there is a further dispute on this site, that the response from the unions will be the taking of industrial action.

PN145

Mr Edmonds has said this morning that the issue about who moves steel off ships is the dispute at issue. He certainly has not said anything about that issue being resolved other than to say that as far as Saunders and Kane, the officials are the union are concerned, it has resolved, what we would say is that in all these circumstances, notwithstanding there has been no evidence led this morning, but certainly on the basis of submissions that I have made, which are based on my instructions from my client, that you, through exercise of your discretion, may issue a section 127 order.

PN146

The balance of convenience in issuing that order, certainly would not weigh against the union in any way other than preventing them from taking industrial action. It may be the impetus that is needed to encourage them to use the disputes settling procedure, which is in the certified agreement, which they are a party to, which would have been certified in November of last year. That is all I have to say.

PN147

THE COMMISSIONER: Thank you. When this matter was last before the Commission on 21 January, I indicated that I was prepared to issue an interim order if my directions weren't complied with. Those directions were that there was to be a resumption of work on Saturday 22 January. There was in fact a resumption, so although the clock may have been at one minute to midnight, it stopped ticking.

PN148

We come now to 2 February. The company complains of further industrial action, which I am satisfied has occurred, but normal work has resumed. There is clearly a pattern developing, which has developed but to that extent, I have no formal evidence before me. I am sure all the parties are aware of some precedents in this Commission of decisions related to a pattern of industrial behaviour, Hunter Valley No. 1, Rio Tinto and the CFMEU as one example. The Commission, as currently constituted, is sympathetic to acting to try and halt that pattern.

PN149

However, as it has been pointed out, it is a discretionary matter for the Commission. I am not prepared to exercise the discretion to issue an interim order today, however I repeat what I said on 21 January, and that is that if normal work does not continue, I am sympathetic to the application for an interim order. That order would be interim and on the basis of allowing both parties to formally address the Commission, but I am satisfied to a large extent, that there is a pattern of walking before people talk, walk before you talk, and the disputes settling procedure is being ignored. If that pattern continues, the Commission will at short notice, hear further application for an interim order. On the basis of the material before me today, I am not satisfied that I should do so at this point. If there is nothing further, we will adjourn this matter.

<ADJOURNED INDEFINITELY [10.14AM]