C2005/1928, Transcript of Proceedings [2005] AIRCTrans 531 (3 March 2005)

1800 534 258

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 10605
10607
10608
10609
10611

COMMISSIONER BLAIR

C2005/1928, C2005/1930, C2005/1931, C2005/1932, C2005/1933

s.99 - notification of an industrial dispute

Keppel Prince Engineering Pty Ltd
and
Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union The Australian Workers' Union
(C2005/1928)
Metal, Engineering and Associated Industries Award 1998

Kelcar Materials Management Pty Ltd
and
The Australian Workers' Union
(C2005/1930)
Kelcar Materials Management Certified Agreement 2004

Keppel Prince Engineering Pty Ltd National Fleet Network Pty Ltd
and
Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union
(C2005/1931)
Metal, Engineering and Associated Industries Award 1998

Robertson Civil Services Pty Ltd
and
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
(C2005/1932)
Metal, Engineering and Associated Industries Award 1998

ECL Services Pty Ltd
and
Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union The Australian Workers' Union Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
(C2005/1933)
Metal, Engineering and Associated Industries Award 1998

MELBOURNE

9.43AM, TUESDAY, 22 FEBRUARY 2005

PN1

MR P SHELL: I seek leave to appear on behalf of the Australian Industry Group. I also represent the member companies, Keppel Prince Engineering, ECL Pty Ltd, Kelcar Materials Management, Robertson Civil Services and National Fleet Network Pty Ltd. With me is MR HOCKING from Keppel Prince Engineering.

PN2

MR D McCLUSKEY: I appear on behalf of the CEPU Plumbing Division.

PN3

MS E WALTERS: I appear on behalf of the Australian Workers' Union.

PN4

MS C CHEW: I appear on behalf of the Australian Manufacturing Workers Union.

PN5

THE COMMISSIONER: Thanks. Yes, Mr Shell?

PN6

MR SHELL: Commissioner, the details of the '99 notification are quite detailed within the notification. I am advised by parties that there are other issues touching upon this that were before the Commission yesterday afternoon or last night where - - -

PN7

THE COMMISSIONER: Before SDP Lacy, I think.

PN8

MR SHELL: Yes. I am made aware that early reports are coming through from the site this morning that there has been a series of site meetings and various employees have resumed work. Where they threatened to be out on strike until tomorrow, I can report that, as I understand it, Keppel Prince's employees went back to work at approximately 8.30 this morning. I have no other reports from the other contractors as of this morning, that I represent, but certainly as of time of notification yesterday afternoon, effectively, as I understood it, there were some 500 Portland direct employees and some 200 employees of contractors out on strike, following a mass meeting at the project. And the mass meeting was addressed by representatives of the AMWU, Mr Solley, and the AWU, Mr Ken Gadstone.

PN9

I understand that the issue goes to the cleaning contractor employed at the site, a contractor known as Skyway Group was put into voluntary liquidation, and there were some 20 employees who the union - - -

PN10

THE COMMISSIONER: Voluntary liquidation or voluntary administration? There is a big difference.

PN11

MR SHELL: Administration. I stand to be corrected, Commissioner. And there were some 20 employees that the unions were pursuing, allegedly outstanding wage entitlements, on behalf of those people. That's basically my understanding of the present situation, perhaps the unions can explain their understanding. However, following that, Commissioner, I am aware that there are various enterprise bargaining agreements in place, particularly, Keppel Prince Engineering was subject of this section 127 notification handled by yourself last year, and my understanding from the company is that that notice expired in December last year, and my thoughts are that perhaps there is a need to rekindle such an application to protect itself in the future, because it appears to me that the dispute settling procedure for my companies that I represent, and the attendant consultative committee procedures, are clearly not working, that it appears that, as a first resort, we turn to a mass meeting led by a walkout, which must actually cost the company, our client, millions of dollars in lost revenue, whereas my company has a registered enterprise agreement which does not expire until
March 2006.

PN12

I believe that we need to not simply accept reports from people involved that this matter is, effectively, off the boiling point at the present, but address ourselves to the future, because the way I see it, there can be no guarantees that the unions involved are going to behave and follow the dictates of the enterprise bargaining agreement. And I would like, once we get past the report stage, to put a bit of discussion into how we assure ourself for the future, be that by way of some order or be that by way of, I would suggest, a further conference of the parties to re-explore the consultative committee procedures because I, quite frankly, don't see the necessity for 700 people to walk off the site over a matter that, clearly, my members have got absolutely no control over, and no influence over, and it's totally outside their enterprise bargaining agreement. If the Commission pleases.

PN13

THE COMMISSIONER: Yes, Mr Shell. Who would like to lead off from the union? Ms Walters, you have the privilege.

PN14

MS WALTERS: Indeed. Commissioner, my instructions are that there was a mass meeting of all the contractors on site this morning at 8 am and at that meeting, the employees and members of the various unions resolved to return to work and, if I can just basically go through - in terms of the background, Commissioner, as I understand it, the contractors withdrew their labour at 12 lunch time yesterday, and that was following some discussions with Alcoa. My instructions in relation to this matter are quite limited. It's safe to say that my instructions are the employees have gone back to work.

PN15

In relation to Mr Shell's submissions with respect to the sections referred to as section 127 orders which expired in December last year, whilst I am not familiar with those proceedings, we would submit, as opposed to the issuing of further orders as a result of this disputation, it would be appropriate in the circumstances, if the Commission was so minded, to convene a compulsory conference of the parties, so that those discussions could occur, in relation to the consultative committee and the dispute resolution procedure, and that Mr Gadstone be available to attend such a conference. My instructions are that, in relation to this dispute, the matter has been resolved, and it is not a matter which will give rise to ongoing disputation. If the Commission pleases.

PN16

THE COMMISSIONER: Thank you. Mr McCluskey?

PN17

MR McCLUSKEY: It is my understanding that all of Robertson's plumbers have returned to work as of starting time this morning. I would just like to clarify a point on the 127, Mr Shell, that all the contractors had a 127 placed upon them. I am certainly not aware of Robertson's plumbing and the union having a 127 on the smelter site.

PN18

THE COMMISSIONER: I think it was mainly Keppel Prince.

PN19

MR McCLUSKEY: Okay. And I am quite confident that no further action will take place in regard to Robertson's plumbers, our members. If the Commission pleases.

PN20

THE COMMISSIONER: Thank you. Ms Chew?

PN21

MS CHEW: Thank you, Commissioner. The background ,as Ms Walters explained, is substantially similar to the background that have outlined, so I don't want to go through it again. Suffice it to say that after discussions with during the course of the 127 application last night, we were in discussions with the union organisers down there, and the organisers agreed that the union's position would be to encourage the workers to return to work and they were to directly recommend that they return to work at the mass meetings held at 8 pm last night, whereupon day shift and night shift workers were instructed so. I just had a phone call from Mr Solley himself at quarter to ten, minutes before we commenced, to say that, yes, all the contractors have returned to work. Now, I, personally, am not aware of the 127 application that Mr Shell refers to. I am aware that there was a previous127 application at some stage last year and I can get the dates of that, but just suffice to say that both Ms Walters and I gave undertakings to the Senior Deputy President Lacy that we would be advising our organisers strongly to follow this resolution procedure.

PN22

Now, if the company is minded to have further negotiations about how that is to occur, we would certainly be happy with that course of action. I recall that, Commissioner, you were once invited down to Portland, I am not sure if you actually attended, but it is certainly something that I could discuss with the organiser and facilitate if that remains a concern for Mr Shell.

PN23

THE COMMISSIONER: What is the make up of the consultative committee, does it include all contractors as well as management of the smelter direct?

PN24

MS CHEW: No. Unfortunately, I am not aware of the composition of that, I have to take instructions from Mr Shell.

PN25

THE COMMISSIONER: Mr Shell?

PN26

MR SHELL: In relation to Keppel Prince Engineering, we have our own internal consultative committee and clearly, on this occasion, the procedures were not followed. We would press our suggestion that there would be a conference of the parties to discuss how the procedures are to be followed in the future, but I am now aware that there probably would appear to be two members of the Commission handling similar aspects of this dispute, and I wonder if that poses a problem. But if the parties are not minded to take up the offer of further negotiations, which seems to be amenable to the unions involved, then my instructions would be to turn this section 99 into a section 127 application, and cause further grief for everybody concerned because, clearly, the procedures are not being followed.

PN27

THE COMMISSIONER: Well, Ms Walters has suggested a compulsory conference and I am not fussed whether it's a compulsory conference or whether it's a conference, I expect people to be there. Where is the best place for that to occur?

PN28

MR SHELL: I believe the best place for that to occur would be in Portland, Commissioner. I believe that we should involve ourselves with the local community and the local officials, and that is where the majority of the people are located. If the Commission pleases.

PN29

THE COMMISSIONER: Yes. Ms Walters.

PN30

MS WALTERS: Commissioner, might I just be heard in relation to the compulsory conference. I think, Commissioner, in relation to that conference, it may be in the circumstances, appropriate that there be a request that the relevant individual or manager from Alcoa be present at that conference. It seems to me, as touched on by Mr Shell, that the subject matter of this dispute has been before Senior Deputy President Lacy yesterday evening and, in fact, early this morning and is also now before you.

PN31

And, whilst there is no argument as to the employer in these circumstances, and the existence of the relevant certified agreements, in relation to dealing with these matters in the future, it may be appropriate that the parties consider the current formation of the consultative committee which exists pursuant to the Keppel Prince certified agreement, that as we find ourselves today, there are, in fact, a number of contractors on site, and the nature of the community and the Portland Aluminium Smelter itself, is that various matters tend to affect and be at issue with both contractors and employees of Alcoa Portland Aluminium itself. So the submission would be, Commissioner, that we would request that the relevant - and I am not sure whether that is Mr Osborne of Alcoa, or, I believe Alcoa has a contractor officer, who, in fact is responsible for the relations between Portland Aluminium itself and all of the contractors, that is their sole role, be available to attend that conference. And that that conference be convened, not merely with Keppel Prince, but in fact with all the contractors.

PN32

THE COMMISSIONER: Mr Shell, do you know whether there is in fact an officer directly employed by Portland smelter that has responsibility for contractors?

PN33

MR SHELL: I would have to be advised by Mr Hocking on that, Commissioner.

PN34

THE COMMISSIONER: I would be surprised if there wasn't some - - -

PN35

MR SHELL: Yes. I would be most surprised from a manager's point of view if there wasn't an appropriate Alcoa person at a proper level that would be available for such talks. That would be a pretty standard procedure and we would use our influence as an industry organisation, and through our contractors, to ensure the appropriate person was in attendance. I also believe that it shouldn't be confined to just Keppel Prince but certainly on behalf of the people that I represent, all of the companies, because they are all affected.

PN36

THE COMMISSIONER: I hear what AIG says on behalf of a number of its clients, and in regards to the 127 orders, they were issued because the Commission was, not to put too fine a point on it, totally peeved off that there is a disputes procedure in place and it simply was not adhered to at any stage, and the disputes procedure is there in order to prevent unnecessary industrial action. Again, the Commission asked why was it a requirement for employees to walk off the job when, in fact, they could have easily notified the Commission of a dispute regarding this matter and it would have listed it at the same time as it has listed these notifications. And the sooner the unions and their members come to grips with the fact that the Commission as currently constituted is not going to tolerate a breach of the disputes procedure by any party, then the sooner we can get some harmony within the workplace and we can get some proper processes to ensure we deal with matters quickly and as effectively as possible.

PN37

So, I am happy to call a compulsory conference in Portland. What I would require is the name of each of the contractor companies that supplies services to Portland Smelter, the name of the contact officer for Portland Smelter that deals with contractors, the name of each individual union officer, that's a full time officer, whether they are called industrial officer or organiser I am not quite sure, that services the Portland Smelter and its contractors. And we will have a conference to see how best we can ensure that this type of thing doesn't happen again, because if we can't get some assurances and some commitment to abide by procedures, then it may be that the Commission does have to hear an argument to reinstitute 127 orders. So, Mr Shell, you would be in a better position to provide all that to the Commission, I would have thought.

PN38

MR SHELL: Certainly. I will undertake to supply to your associate the name of all the contractors. It might take me a bit of time to get that together, and the name of the appropriate person at Alcoa, but I would think it was incumbent on the unions represented here to supply the names of the union officials within their organisation. Or simply, if that can't be done, I would be quite happy to have people attend the compulsory conference who have probably signed the relevant EBAs with the unions, and I would assume that that would be the secretaries, Mr Oliver and Mr Setches and Mr Shaw, we'd be most happy to see them in Portland. If the Commission pleases.

PN39

THE COMMISSIONER: Right. The unions would provide the name of the contact servicing officers, if they would. Can we just go off transcript for a minute. Thanks.

<SHORT ADJOURNMENT [10.03AM]
<RESUMED [10.07AM]

PN40

THE COMMISSIONER: All right. Thanks for that. The Commission will adjourn and we will convene by way of compulsory conference in Portland on Thursday, 10 March at 9.30 am, and the parties are required along with the Commission to set the day aside to address the issues to ensure that we can move forward. Thank you. The Commission will stand adjourned.

<ADJOURNED UNTIL THURSDAY, 10 MARCH 2005 [10.08AM]