C2005/30, Transcript of Proceedings [2005] AIRCTrans 476 (24 February 2005)

1800 534 258

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 10423

DEPUTY PRESIDENT MCCARTHY

C2005/30

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

Downer Engineering Power Pty Ltd United KG Pty Ltd O'Donnell Griffin Pty Ltd
and
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia-Plumbing Division Western Australian Divisional Branch
(C2005/30)

C2005/32

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

United KG Pty Ltd
and
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
(C2005/32)

PERTH

12.59PM, TUESDAY, 08 FEBRUARY 2005

PN1

MS L GIBBS: I seek leave to appear on behalf of the applicant.

PN2

MR I GILL: I seek leave to appear.

PN3

THE DEPUTY PRESIDENT: Yes, leave is granted. Yes, Ms Gibbs.

PN4

MS GIBBS: Thank you, sir. You have before you two applications in relation to industrial action currently being taken at the Alinta Co-generation project and the Alcoa Pinjarra efficiency upgrade and the local service contracts all at the site in Pinjarra. We are advised that at the moment we have approximately 85 to 90 employees on strike or members we understand or we believe with the CEPU are certainly all employees covered by the five agreements listed in the two applications.

PN5

The employees departed from site approximately 10, 10.30 yesterday morning and we were advised by Mr Gill from the CEPU the reason that the employees have withdrawn their labour is due to a lack of respect shown to the ETU flag and also a refusal to allow ETU flags to be flown at the site of these projects in Pinjarra. The employees are currently still out on strike. As far as we are aware, there is a report back meeting scheduled tomorrow morning, some time late morning.

PN6

We are unaware as to whether or not the employees intend to return to work at that time. Sir, if I can go into a brief history at the site and as to what has happened in relation to this particular dispute. All of the five agreements referred to in these two applications provide for dispute resolution procedures. Those procedures have not been followed and we say that this is industrial action in breach of the agreements and are therefore seeking section 127 orders for the employees to return to site.

PN7

We are seeking orders that will last for approximately 11 months, until the majority of this project will be complete, but we are seeking them only in relation to this issue of flags being flown on site, so it is not a broader order, it is quite narrow in terms of the industrial action that we seek to prevent in future. Sir, these agreements aren't very old at all that you have before you. The oldest one of them was registered in May last year which is the United KG Pty Limited Alcoa Electrical Contracting Certified Agreement 2004.

PN8

There was a dispute on the site in July of 2004, last year, as a result of which seven days were lost. That was in relation I believe to the negotiation of the Pinjarra efficiency upgrade agreement that is now one of the agreements under this application. We lost around six and a half to seven days of United KG staff being out then, then we had further industrial action in August. There was another dispute in relation to the negotiations.

PN9

We lost another four days, four and a bit days in relation to that dispute at the time. An application was brought before you on behalf of United KG and another contractor on the site. An order was issued that the employees return to work at that time, then on 6 December 2004 there was a one day strike in relation to these employees covered by agreements. At that point in time, the Alinta Co-generation Project Pinjarra Downer Engineering Agreement and the Pinjarra Efficiency Upgrade Downer Engineering Power Agreement were less than a month old and the Pinjarra Efficiency Upgrade Agreement was I believe just slightly over a month old at that period of time.

PN10

There was an authorised meeting conducted by the CEPU on site. Because that was an unauthorised meeting, the employees were subject to loss of their project completion payments. As a result, they went out on strike for 24 hours. There were approximately 100 employees out on strike at that time of United and Downer, then on 12 January this year we had another 24 hour stoppage. It was in relation to the United KG staff.

PN11

We had 38 of them, all people covered under these agreements, go out on strike due to non-arrival of gift vouchers which actually arrived just as they were all leaving the site in any event, so there was another day lost there. That is the history up until this point in time. Certainly this dispute and the last dispute we say aren't over very serious matters at all. The situation here is this issue of the CEPU being able to fly the ETU flag on site.

PN12

Mr Gill from the ETU I am instructed has previously raised this issue with Alcoa directly and then has raised it with the contractors on site. It has been made quite clear to Mr Gill that there is a policy in place, that the only flags to be flown on site are flags of the Government, Federal and State Government and also the flag of Alcoa, who has that site. There is no ability for any of the contractors to fly flags or of the unions also.

PN13

I am instructed there are approximately 50 contractors on the site, so if everyone was allowed to fly their flag, it would be quite a ridiculous situation. I am instructed that prior to Christmas, an ETU flag had been placed on the side of a storeroom and that was either removed or removed by the employees after being instructed to do so, but subsequently Mr Gill has requested again that the issue of a flag be discussed and that has been discussed.

PN14

Despite that, Mr Gill keeps raising it. Last week, Mr Gill advised us that he wanted to come and speak to the contractor about issues. He advised us late last week that one of the issues that he wanted to discuss was the ability to fly the ETU flag on site. The meeting was scheduled for Monday morning, so the contractors were aware that this was an issue that was going to be discussed with them on Monday, then on Saturday, during the night shift, we had on the Downer Alinta co-generation project part of the site, we had two electrical trades employees on the shift that night and overnight appeared an ETU flag on a makeshift flagpole.

PN15

My instructions are that the flag was on an approximately four metre pole which had been made out of a piece of steel conduit. It had been attached to the highest part of the building. It had been attached via U-clamps to a handrail. The U-clamps had been bent so they couldn't be removed by simply undoing them and one would have to bring in tools to actually remove them. It was erected over an area where the grid mesh had been removed.

PN16

It was an unsafe area. It had been barricaded off so that no-one could actually enter into that unsafe area. Nevertheless, someone has entered in there overnight, during that night shift and put up the flagpole and the ETU flag. When Downer saw this on Sunday, they instructed that it be removed, which it was. I understand that because of the way it was rigged up at that time, the only way to remove it was actually to cut the flag down and then to bring someone else in to remove the flagpole afterwards, which was done. The flagpole was removed yesterday, I am instructed.

PN17

Mr Gill arrived on site yesterday morning, met with the contractors' representatives. He said that he wanted to raise the issue of being able to fly the ETU flag on site, didn't raise the issue of the flag having been in place over the weekend and then removed by Downer. It was again explained to Mr Gill that it is policy that only flags of the Government and Alcoa be flown on the site. He said that he would speak to the union members about it.

PN18

He then met with the union members as outlined in our applications. The first meeting was with United KG at approximately 10 am yesterday morning and at the conclusion of that meeting, the employees of United KG returned to work, then approximately five minutes after that meeting, Mr Gill then met with the employees of Downer Engineering and the employees of Downer immediately left site after that meeting.

PN19

My instructions are that Mr Gill informed Mr Wayne Carey, the site manager for Downer and also CCIs on site representative, Mr Glen Turkington, that the reason for the strike was a lack of respect shown to the ETU flag and that he understood it had been cut down and also over the issue of being unable to fly the ETU flag on site. I understand then Mr Gill went and spoke again with the United KG employees and the O'Donnell Griffin employees and they all withdrew their labour at the conclusion of that meeting. So in a nutshell we say that this is not protected industrial action. It is industrial action that is occurring at this point in time. We say that there is jurisdiction for the Commission to make an order that these employees return to work.

PN20

THE DEPUTY PRESIDENT: Is there any contractual direction or limitation on the contractors with their contract with Alcoa, I take it?

PN21

MS GIBBS: Sir, I might just clarify that, if you don't mind.

PN22

THE DEPUTY PRESIDENT: Well, perhaps I will hear from Mr Gill or Mr McLaughlan and you can advise me later.

PN23

MS GIBBS: Certainly, sir.

PN24

THE DEPUTY PRESIDENT: Thank you.

PN25

MR GILL: Thank you, sir. Certainly with regards to the orders being sought, sir, it was mentioned by my friend that they were just seeking orders with regard to the issue of the flag. However, the letter that they are asking for to be sent out also has a paragraph stating that the order also prohibits the CEPU from authorising, directing, organising or encouraging any industrial action, so it is a separate paragraph that seems to be flying alongside the issue of the flag, which is in the paragraph above, which is in the application, paragraph 4.4.

PN26

THE DEPUTY PRESIDENT: Yes.

PN27

MR GILL: Sir, I just bring that to your Honour attention.

PN28

THE DEPUTY PRESIDENT: Yes. Thank you.

PN29

MR GILL: Sir, basically I have been in quite a bit of discussions with CCI on site. Matt Riordan is the normal chap down there that looks after CCIs and the contractors' issues. It is only Mr Glen Turkington I have met with just recently while Mr Riordan was on holidays and it certainly has been raised that we wish to meet with Alcoa and have discussions.

PN30

That, however, didn't happen until any such time as yesterday due to people being busy and otherwise, but certainly I have been sending e-mails to Mr Glen Greenhall from Downer's and Phil Evans from United KG who I never actually got to meet. There seemed to be a lot of problems with communications on UKGs part and it wasn't until Helen Spencer came along, we started actively having some decent communications with UKG and Callum McKenzie also.

PN31

So there has been some to-ing and fro-ing of e-mails and discussions about the flag issue and numerous other issues on site and certainly the list of disputes and alleged disputes to have happened certainly haven't happened to the level that has been portrayed because there has been quite a few disputes down on that job with the ETU that the CEPU has not had involvement in and I would have to say that it is only by the good work of our representatives on the job, our stewards and delegates, that we have remained out of quite a few of those disputes that have popped up, so I guess the issue falls around obviously the flag and what has actually happened is I have no knowledge of the flag being placed up.

PN32

The flag obviously has gone up some time over the weekend. Everyone has known I have been coming down on site on Monday for a meeting and the fact that the flag went up and was ripped down was brought to my attention when I got there on Monday and knowing, given the fact that the companies have found the flag flying and then ripped it down, knowing that I am coming down on the Monday, just highlights to me a provocation of the whole issue.

PN33

Rather than perhaps letting it fly there for the meantime and having some meaningful discussions which we were coming down for seems like provocation to me. I have never seen anything in writing, any company policy or Alcoa policy prohibiting of flying the flag. No-one has shown me anything at any time. No-one has forwarded any e-mails about Alcoa's policy. It has just been told to me as of yesterday by the representative down for Alcoa.

PN34

That is the first time I was actually told and the blokes were incensed at the fact that it was ripped down and obviously I have got it here because it has been taken. Rather than cut down, I would suggest it has been ripped down and the guys have a lot of pride in this flag and the eyelets are still missing. They cost more than $100 each and the fact that it was just torn down willy-nilly I would suggest is a case for provocation for the blokes.

PN35

We have been talking long and hard about trying to get some sort of agreement on having a flag fly up there, sir, and at the end of the day, when they saw this thing ripped down and just thrown in a corner, I got it off Mr Wayne Carey earlier, he is the new boss for Downer's on the project and I don't know who took it down and no-one has said who has taken it down or ripped it down. It has certainly been ripped down. It hasn't been cut down and when the blokes saw that, they naturally wanted to have a discussion about it, so from our point of view, sir, for the members it has been seen as an attack on the pride of the union.

PN36

Everyone there is unionised, they are on a union agreement, they have got union rates of pay, they have got the stickers on their hats and they proudly wear those as well, because they take pride in the union and the conditions that we fight for on their behalf and they were incensed at the provocation. Now, given the fact that, as I said earlier, I was down there having a meeting with the contractors and they knew I was coming, to me it just seems like a clear provocation.

PN37

THE DEPUTY PRESIDENT: You are not disputing that there is jurisdiction to issue an order, Mr Gill?

PN38

MR GILL: Well, sir, I would rather see us adjourn and go into a conference and have some discussions about it.

PN39

THE DEPUTY PRESIDENT: I know what you would rather see. Are you disputing that there is jurisdiction to issue an order? Whether an order issues or not is quite another issue and whether we go into conference or not is another issue. What I want to ascertain is whether you challenge that there is jurisdiction.

PN40

MR GILL: No, sir, I don't challenge that, but I would like to - - -

PN41

THE DEPUTY PRESIDENT: Can I ask you - sorry, I interrupted you.

PN42

MR GILL: That is fine, sir. I can follow up.

PN43

THE DEPUTY PRESIDENT: If the employees are out on strike at the moment, is there any intention for a meeting to be held or any plans for a meeting?

PN44

MR GILL: Yes, sir, it was mentioned it was going to be late morning and that is correct. It is actually 11 o'clock.

PN45

THE DEPUTY PRESIDENT: What, tomorrow?

PN46

MR GILL: Tomorrow morning, yes, with full intentions to reconvene. Obviously, now that this application for a 127 order has come on, sir, and given that they are looking for - it is a little bit more wide-sweeping than over the flag issue, as I raised earlier, in fact they are asking for an order until the end of the year.

PN47

THE DEPUTY PRESIDENT: On the flag issue?

PN48

MR GILL: Well, on the flag issue, but the actual letter they are being asked to send out, sir - - -

PN49

THE DEPUTY PRESIDENT: Yes, but I think it is made fairly clear from the submissions that have been made that the order that is being sought is confined to the flag issue for that term. That is my understanding.

PN50

MR GILL: Okay, sir, I take that on board.

PN51

THE DEPUTY PRESIDENT: And if there were sought to be a wider order for any other issues or issue, then there would obviously need to be more substantive argument and if not evidence to be put for me to be satisfied that there is a case for that to occur, but it is not being sought as I understand it.

PN52

MR GILL: Sir, so tomorrow morning we would be meeting at 11 o'clock to discuss the issue. Obviously the goal posts have moved to some degree, given there is an application for a 127 order be placed over this issue, the flag issue and in all normal instances, we have been looking to meet with the guys and have them return to work.

PN53

THE DEPUTY PRESIDENT: Yes, thank you.

PN54

MR GILL: Sir, I would just like to add if I could, with Alcoa I think there was a fairly belligerent stance there made at our meeting yesterday. There was sort of no intention of really having the discussion over it and I guess that doesn't help matters a great deal. The guys see themselves as working on site, in particular the co-generation site which is a stand alone part of the site and it certainly wouldn't be handed over to Alcoa and the blokes just want to see a flag flying on that job or off their container or outside the building or somewhere that they can rally behind and obviously work with a higher level of morale than what they are probably going to be going back in with tomorrow, so I will leave it at that for the moment, sir.

PN55

THE DEPUTY PRESIDENT: Thank you, Mr Gill. Yes, Mr McLaughlan.

PN56

MR McLAUGHLAN: Yes, just to add one particular thing. We are disappointed in the way that this matter was dealt with. There clearly was a notification given that Mr Gill was coming on site and whilst it has been said that dispute procedures don't appear to have been followed, we would have thought that the appropriate way of dealing with this matter was to address that issue with Mr Gill in the morning and it may well have been that they would have been able to show that there is some company from overseas or some project policies and it may well have been then appropriate for the employers to request that the union members remove their flag and if they failed to remove their flag, then it may well have been pointed out that the flag would still be removed.

PN57

I think what has led to this flare up which is unfortunate was the fact that the workforce were aware that that was property damage that was destroyed. It was thrown down and treated with contempt. We would say that that protest was made there in the way the company over reacted to the fact that a flag was flying and the fact that our official was there within probably a matter of an hour. I think he was actually there at seven o'clock in the morning, 6.30 in the morning, so they were able to open up those discussions right away.

PN58

I would say, sir, that I think the workforce have made a protest. They felt very strong about it, but the protest was over and will be over tomorrow and I don't think that it would help the position for the company to pursue a 127 order on this issue. I think what may have been more appropriate is to say that they seek discussions to clarify their position and show the policy. I would also point out that there has been a number of projects where flags have been allowed to fly and it has never been raised with us that there is a policy preventing it and, in fact, one of the last major projects, being Worsley, the union was contacted and asked to supply a flag because they had all of the unions flying a flag as part of a recognition that it was a joint effort, the construction project, so we are willing to have those discussions. We think that it is by far an over reaction to the fact that the workforce were annoyed and upset that their flag was just ripped down and thrown in the corner.

PN59

THE DEPUTY PRESIDENT: Thank you, Mr McLaughlan. Yes, Ms Gibbs.

PN60

MS GIBBS: Thank you, sir. You asked if there is any terms in the contractors' contracts that they abide by policies, etcetera, I think, of the client, Alcoa, and I am instructed that that is in fact the case. The contractors are bound by their contracts to abide by the policies and procedures that Alcoa have in place and my instructions are that that is a worldwide policy of Alcoa.

PN61

In relation to the issue of provocation, I think from my client's perspective, the issue of provocation works the other way. We have been told last week that
Mr Gill was coming down and wants to talk about the issue of being able to fly a flag on site and suddenly the flagpole is erected on the weekend and the flag is stuck up just before Mr Gill comes to site, so if there has been any provocation, it would appear to be provocation by the union and its members against the company.

PN62

In relation to the wording under clause 4.4, I don't think we will have an issue with combining the third and fourth paragraphs of the letter to state that it is in relation to the flag, because that is purely what we are seeking. The union has just said that they thought there were more appropriate ways of going about this. I am instructed that in December last year that Mr Gill raised that if they weren't satisfied with the outcome of their request to fly a flag, that they would bring the matter to the Commission.

PN63

If anything is an appropriate way of dealing with it, it would be that. They have got the ability under the agreements to make application to the Commission if they are not satisfied with any negotiations held with the contractors.

PN64

THE DEPUTY PRESIDENT: Well, under the dispute resolution clause of those agreements, I am not so sure about that, Ms Gibbs, because it is only the United KG Alcoa Electrical Contracting Certified Agreement where there has been any empowerment under section 170LW for the Commission to agree to being involved in section 170LW and presumably that is the only means that that sort of matter could come here.

PN65

MS GIBBS: Certainly, sir. Under the other agreements, however, it does state that the parties may refer the matter to the Commission for conciliation, so even though the Commission could make a determination, there is the ability to come here and conciliate in relation to those issues, so they should have followed those agreements.

PN66

THE DEPUTY PRESIDENT: I have raised that very issue when agreements have been certified ad nauseam, Ms Gibbs, and it might be the case that matters can be applied to be dealt with here, but whether they can be within jurisdiction or not is another thing and whether the Commission would be prepared to when quite specifically in the certification of those agreements, the parties have not wanted the Commission to be empowered to deal with issues of disputes arising under the agreement.

PN67

MS GIBBS: Certainly, sir, but the fact remains that the procedure has not been complied with regardless of that one step.

PN68

THE DEPUTY PRESIDENT: What do you say about Mr Gill's request that the matter go into conciliation now, this application, or these applications?

PN69

MS GIBBS: I will just take some instructions on that, sir, but the two final points I wish to make are that the CEPU have had employees on this site I believe for 25 years, have never flown a flag on the site, never requested to prior to these recent times. It has never been an issue previously. The last issue I wish to raise, I was putting to you earlier how recent some of these agreements were. I failed to actually mention, sir, that the O'Donnell Griffin certified agreement was only certified on 31 January, so it was only a couple of days old when we had this industrial action take place.

PN70

THE DEPUTY PRESIDENT: Mr Gill, just while we are waiting for
Mr McLaughlan, just while we are waiting for Ms Gibbs to get some further instructions, I think you, Mr McLaughlan, said that at other sites the CEPU flag had been allowed to fly. I think you mentioned Worsley. Are there any other sites that these particular employers operate at where that is the case?

PN71

MR McLAUGHLAN: Sir, we have had a flag flying up at Telfer in ADGs compound, unless someone has ripped it down in the meantime, but certainly the last time I was there, sir. Sir, just to clarify that also, that is obviously an industrial project, but we also have a lot of commercial projects also where we are flying flags and we have had nothing but co-operation from the employers.

PN72

THE DEPUTY PRESIDENT: These particular employers, that is down at UKG, ODG are involved?

PN73

MR McLAUGHLAN: Certainly from ODG, we have one out at the Mirvac site, at Worsley. The other commercial sites would be in companies that fall under State jurisdiction, their agreements, but certainly from time to time, at any time dammers could come on those sites, if they have work on those sites, they would be under those flags as well. I mean, it is a bit of a reality in commercial that there is more of an acceptance and understanding of the wanting to fly flags
and - - -

PN74

THE DEPUTY PRESIDENT: I don't really need to go into the reasons why. I just wanted to know with your knowledge whether any of these particular employers had flags flying at other sites.

PN75

MR McLAUGHLAN: Certainly the one at Telfer, it is flying on site at Telfer and the dammers are up there and so are O'Donnell Griffin.

PN76

THE DEPUTY PRESIDENT: Yes, Ms Gibbs, you were getting some instructions.

PN77

MS GIBBS: Sir, I have obtained the instructions. My instructions are that my clients don't see the point of going into conference on this matter. There is very little we can do to rectify this situation. It is a policy of our client. We can't agree to change that or else we will be in breach of our contracts with our client, so I don't see where conciliation is going to, or my clients don't see where conciliation is going to get us on this issue.

PN78

THE DEPUTY PRESIDENT: Yes.

PN79

MR McLAUGHLAN: There was a report back in tomorrow and we would have been recommending - there would have been a return to work, anyway, because it was - - -

PN80

THE DEPUTY PRESIDENT: I understood that from what you said earlier,
Mr McLaughlan.

PN81

MR McLAUGHLAN: Yes, sir, we just point out that we think that any issue of an order will have a more negative impact on the workforce there, given that they feel aggrieved as it is and it may well be that the company will - - -

PN82

THE DEPUTY PRESIDENT: They will think I am provoking them, will they?

PN83

MR McLAUGHLAN: I said I think they will think that the employers, by seeking to use your office to enforce a step back from their pride that they have in their union and they have in their flag. Another point that has some impact on it is that mostly on industrial jobs, people can't wear their normal union shirts because, the usual short sleeved shirts and t-shirts, that there is particular clothing that they have to comply with on those projects and they see flags flying elsewhere, they have come off jobs where flags are flown, some from Telfer and they don't see that it has done any harm to anyone and they are not aware of any reason why it couldn't have flown, other than it just appeared the employers didn't like it.

PN84

THE DEPUTY PRESIDENT: Yes, Mr McLaughlan, the employers here are subject to the contracts they have entered into with the occupier of the site, Alcoa, and it would seem to me if there is a policy of the occupier of the site, the employers here are somewhat the meat in the sandwich of not agreeing to something they can't agree to.

PN85

MR McLAUGHLAN: Sir, I accept that and we weren't aware that there is a contractual thing and we would be happy if the company would rather not fly a flag and put the union emblem on their shirts, as other companies have done as well. Some companies recognise that it is a joint position between the employees and employers on the site and they put the CEPU logo on their shirt, along with the company logo. That may be another way of dealing with it.

PN86

THE DEPUTY PRESIDENT: I will adjourn into conference for a short period, go off record. I want to talk to the unions first. It is probably easier if we organise a room over there.

<SHORT ADJOURNMENT [1.32PM]
<RESUMED [2.00PM]

PN87

THE DEPUTY PRESIDENT: I adjourned into conference. I have had discussions with the parties separately, but not jointly. The applicant has advised me that they wish to pursue the issuance of an order. The union has advised me that they do not wish an order to issue and I should exercise my discretion not to issue an order given the circumstances surrounding the issues of this application.

PN88

I will consider what has been said on record and adjourn the proceedings and deliberate on whether I issue an issue and if I do, the terms of that order. Mr Gill and Mr McLaughlan, I direct you to inform the employees of the employers involved with these applications and these agreements that the disputes resolution procedure in the agreement is there for a purpose. It is in effect compulsory to be complied with and it is expected to be complied with and there is an obligation on not just the union and its officials but the employees to comply with the terms of any issues that arise under the agreement.

PN89

Of course, the obligation does not rest solely with the employees and the union. There is an obligation also on the employer to comply with the dispute resolutions procedure and it is my expectation that for any further progression of this particular issue or any other issues, that the procedure is complied with. Should any of the parties wish the assistance of the Commission, should they not be able to reach resolution of any issues that do arise, of course the Commission is available to provide that assistance in whatever form is appropriate to the circumstances. I will adjourn these proceedings and advise the parties in due course of what my decision is. Yes, Ms Gibbs.

PN90

MS GIBBS: Your Honour, just before we adjourn, I have taken the liberty of redrafting the orders sought, to merge the two orders. It is in two applications and two separate orders. I have provided a copy of that to Mr Gill, so I propose just to hand that up.

PN91

THE DEPUTY PRESIDENT: Yes, thank you. These matters are adjourned.

<ADJOURNED INDEFINITELY [2.04PM]