C2005/1993, Transcript of Proceedings [2005] AIRCTrans 565 (8 March 2005)

1800 534 258

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 10680

DEPUTY PRESIDENT BLAIN

C2005/1993

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

Fremantle Port Authority
and
Maritime Union of Australia, The
(C2005/1993)

PERTH

7.37PM, FRIDAY, 25 FEBRUARY 2005

PN1

MS SARACENI: I seek leave to appear on behalf of Fremantle Port Authority.

PN2

MR CAIN: I appear on behalf of the Maritime Union of Australia.

PN3

THE DEPUTY PRESIDENT: Thank you. Is there any objection to leave being granted to Ms Saraceni?

PN4

MR CAIN: No objection.

PN5

THE DEPUTY PRESIDENT: Leave is granted to Ms Saraceni.

PN6

MS SARACENI: Thank you, sir.

PN7

THE DEPUTY PRESIDENT: Please commence.

PN8

MS SARACENI: Sir, to start with, I thank the Commission for sitting at this unusual hour to hear the matter. The papers that have been filed is the application. At the time the application was filed, the orders that were being proposed and the timing of the orders was envisaging that what would take place would be in the afternoon, but those times would need to be amended if the Commission were minded to make the order, given that it is now past 7.30.

PN9

The situation, sir, is that this morning at about 9 o'clock, the employees at Fremantle port involved in the maintenance side of operations there stopped working and spent most of the day in the workshop. These employees, sir, are covered, their terms and conditions of employment are covered by a registered certified agreement which is called the Fremantle Ports Operations and Services Agreement 2002. It was registered on 14 February 2002 and is current. The nominal expiry date has not yet lapsed. Do you have a copy of that agreement, sir, because I do have a spare copy if you wish?

PN10

THE DEPUTY PRESIDENT: I have an agreement called the Fremantle Ports Operations and Services Agreement 2002 which is dated 4 February 2003. Is that the correct agreement?

PN11

MS SARACENI: I understand it is, sir. I have the print number. I don't know if you have that print number.

PN12

THE DEPUTY PRESIDENT: Indeed.

PN13

MS SARACENI: PR927310.

PN14

THE DEPUTY PRESIDENT: Indeed. I think the date that I read out was different from the date you mentioned. Is that correct?

PN15

MS SARACENI: Yes, sir, it was.

PN16

THE DEPUTY PRESIDENT: But it is the same agreement.

PN17

MS SARACENI: Thank you very much, sir. That is the agreement that governs the terms and conditions of employment of the employees in question. As I said, it is a current agreement. If I could take you, sir, to clause 17(d) just to start with.

PN18

THE DEPUTY PRESIDENT: Perhaps before going into the detail of your submissions, if perhaps you might just give me an overview and then I will seek an overview from the respondent and the matter can proceed from that point on.

PN19

MS SARACENI: Yes, sir. The position of Fremantle Ports is that from
9 o'clock this morning, industrial action has been taken by this sector of employees. The position changed somewhat later this afternoon, following the filing of the section 127 application in that it appears that the section of work that they do which involves clearing quarantine rubbish, that section of the work was the ban was lifted and some of that work was being done, so that is one change since the application was filed, sir, but otherwise you have a situation where the employees are responsible not only for the quarantine rubbish, the removal of it, but also for cleaning the public amenities, those being the amenities at Victoria Quay that service the Fremantle Maritime Museum, the Rottnest ferry departures area, et cetera. There are also the public amenities at the common user berths which this section of employees looks after and those berths are where commercial ships come and go to onload and offload cargo and there are also public amenities at the various malls which are usually used by fishermen and sometimes they unfortunately clean their fish there.

PN20

In relation to the second done with the common user berths, you have a situation, sir, that currently there is a ship in berth. The stevedores are meant to be working on that ship. There is another ship due to come in. There is a fender, for example, that is something that needs to be removed before the ship tomorrow morning, the next ship comes in and that has not been done. You have a situation where a different section of employees, being the port services group of employees and this is based on what Fremantle Ports understands to be the position, have decided, sir, after having consulted with the MUA, that they will not use the crane or truck that is needed to remove that fender to allow the ship to berth tomorrow morning, which causes a problem for what is occurring there tomorrow morning, so it has spread to another section of the workforce and that really needs to be done by 9 o'clock to allow that ship to arrive safely.

PN21

As to the main section of workers, they also do some emergency repairs and maintenance, sir, on the weekend if there is a breakdown in any of the facilities, that they are the ones that are called in first to try and assist, rather than Fremantle Ports bring in outside contractors and Fremantle Port, with a view to making some contingency plans for the weekend, has considered the possibility of using outside contractors, but it has been advised by the MUA that if that is done, that the industrial action will become more widespread.

PN22

Now, as for the purpose for which the industrial action is taken, Fremantle Ports has been advised, sir, as the application states, that there is one particular person, an employee by the name of Theo Bader, he is not an employee of Fremantle Ports, he is actually employed by the labour hire company, Adecco Industrial Pty Limited. He has been assigned to and has undertaken work at Fremantle Ports for a period of months.

PN23

He has been advised that his services, as has his employer, that his services are no longer required at Fremantle Ports and we understand that Adecco has put him on another assignment, ready to work elsewhere on Monday. Now, as far as Fremantle Ports is concerned, the industrial action they have been told is because Fremantle Ports refuses to continue using the services of this labour hire gentleman, Theo Bader.

PN24

Now, insofar as that is the issue and that is the only issue that my clients have been advised of, we say that the industrial action is illegitimate and doesn't warrant anything other than an order returning the employees to work, because what they are doing is actually unlawful. There is no suggestion at all that the action is protected. As I said, the agreement is current and is valid. Clause 17(d) of the agreement which I took you to very briefly, sir, states:

PN25

It is a fundamental term of the agreement that no industrial action be undertaken during its currency.

PN26

So what is occurring is in breach of a specific clause in the agreement and as you would be well versed, sir, one of the objects of the Act under section 3E is to provide a framework of rights and responsibilities for employees and employers and their organisations which support fair and effective agreement making and ensures that they abide by the awards and agreements applying to them and that is just not what has been done. That is a very brief overview, sir. I do have other submissions. Would you like me to continue?

PN27

THE DEPUTY PRESIDENT: At this point, that is sufficient. I would simply ask you if, in fact, the direction in relation to service was complied with.

PN28

MS SARACENI: The union, sir, was served with the application at about 2.45 this afternoon.

PN29

THE DEPUTY PRESIDENT: Thank you.

PN30

MS SARACENI: I have the facsimile transmission sheet, if you require, sir.

PN31

THE DEPUTY PRESIDENT: At this stage it is not required.

PN32

MS SARACENI: Thank you, sir.

PN33

THE DEPUTY PRESIDENT: Thank you for that overview, Ms Saraceni. I will now seek from Mr Cain similarly an overview and noting that there was also a direction to the respondent.

PN34

MR CAIN: Sir, thank you. To go back to the issue, the 3 month clause, I want to take you back, to just give you a bit of background of what has happened. We have had a number of safety concerns, not only with the Fremantle Ports Authority maintenance section, but also with the wharfies down there in the areas of P and O, Patrick's, so in fact I sent a letter to the port authority on I think it was last week, indicating that these concerns, safety issues, are to be fixed up and that included amenities, it included running hot water and cold water, it included tables, chairs in respect to amenities where workers could sit down in a safe and proper manner and have their smoko breaks.

PN35

It included a number of issues around their health and safety or lack of on behalf of the port authority in respect to the areas of work. What has transpired since last week is, to me, could have been fixed without - I beg your pardon,
Mr Commissioner, coming here today. We have sought Theo, as Ms Saraceni has said, he has been working for Fremantle Port Authority for 8 months. We have an agreement, whether in writing, I am not sure, in respect that they would not pick up labour hire company's personnel for the port authority long-term.

PN36

We consider 8 months long-term. Now, in this area of work, this bloke is down at the port, in the teams, he is part of a team, very co-operative bloke, very quiet bloke and he was told this week he is being finished up and there is no more work for him. Everyone down there and I was addressed - they came to me, about four or five delegates rang me about this issue last week, but I was in the Pilbara over another matter which you are probably aware of and I couldn't get down here to sort the issue out.

PN37

I spoke to Daniel Lee on the phone, asking him to leave this matter over, employ the bloke for another week and we were prepared to resolve the issue in a conference with the port authority and have an independent person sit there as a mediator and we are still prepared to do that, to try and resolve the issue around this bloke.

PN38

We had assurances from the port authority that they would not be putting in Skilled Engineering, Integrated Workforce, Adecco, all these labour hire mobs, they would be phasing them out and be putting people on permanent if required and we have had occasions now over the last 18 months where we have had people in there 2 and 3 years and have actually taken the port authority to the Equal Opportunity Tribunal because they work consistently over 35 hours a week and they had been, to put it bluntly, there is evidence and I will say quite clearly from our members that if you are a member of the MUA and the port authority find out, then you were dismissed, as a casual or if you have been there for a period of time, if you speak up that you are a member of a union and this has been a problem, an ongoing problem with management and it has now come to the attention where the blokes were sick to death of it.

PN39

Also, we are not having any industrial action at the moment. We have a lot of major safety concerns. As you are aware and Ms Saraceni has addressed you to say quite clearly that after the meeting this morning, I indicated to the blokes that we should be talking to the port authority in a consultative manner and your representatives and myself will go up and see Mr Lee or Ms Sanderson or whoever we had to do, to basically come to an agreement in respect to how this worker - would he leave the company?

PN40

We put to the company as late as this afternoon to say that we were prepared to get everyone back on track, where we get the quarantine back working, because that in itself is a safety issue, we have to get the ship under way and we have fixed that up. We have complied with that. We have sent the workers back to do that part of it. We have asserted and we are prepared to sit with you around a table in a consultative manner next week, to talk about the issue and to leave this bloke employed there for a week, not 4 months, 5 months or 6 months, so that if we could come to a conclusion about the numbers safety wise to the area of work, because my members are indicating to me that they are going to get rid of this bloke today or this evening - I think they have done that - and then on Monday bring three or four people into that area of work, which then leaves a hole where this worker should be working.

PN41

This has been an ongoing problem, a safety problem and an issue that our members have had a gutful of, to be quite honest. I actually was told off by my membership this afternoon, late as this afternoon, for getting them to take our safety concerns and make them go back to work in order to try and get the show on the road and get some sanity in this.

PN42

It hasn't escalated as far as we are concerned. We still have issues around the quarantine where they had one man drive a truck, whereby they go out to all kinds of other areas of work, whereby they need to and if he is in sometimes isolated areas of work, where a bloke could have a heart attack or could fall off his truck, which has happened on a number of occasions and whereby people could be injured without getting any evacuation procedures in place or whatever is needed to get himself to hospital.

PN43

We believe that there should be two people in a truck in the quarantine, even though we are now still doing it with one and I have indicated to the Commission and to the company that that truck is back out working, going around doing what it should be doing. In respect to the bloke at hand, we had assurances and I say again from the Fremantle Port Authority that where there is long-term work for employees, they would endeavour to employ them directly through the port authority, through their payroll and it is only the first instance, this Theo and I wouldn't now him personally, he has been working there 8 months for the port authority and yet he seems to now be working for Adecco Labour Hire, when we had assurances that wouldn't happen.

PN44

We have concerns and it is not just with the port authority over this worker. We have concerns over the numbers down there working unsafely, the hours of work, the fatigue and then we have a moral issue about recruitments, which we were prepared to talk about in a consultative manner. I spoke to everyone I could possibly speak to, including the Minister on this issue just before I came in here this evening, to try and get some resolve and some sanity into this.

PN45

There is no industrial action in respect to what had gone on. We have sent the truck back to work. We have had a meeting this morning and the members were irate and they didn't go back to work, because they were irate over the safety concerns if they did go back to work, so to me, I believe the jurisdiction around this issue is resolved and we are prepared to sit down in a consultative manner to try and resolve this.

PN46

There is no need for any orders. Just looking at the grounds for this application, parts 1, 2 and 3 is not relevant. We have actually told - well, it is true, but it is not relevant in the case. Part 4, we are saying there was a meeting in the morning to address the safety concerns, not industrial action and we still have safety concerns there. There is a number of safety issues in the inner harbour, on the outer harbour, around the numbers that work.

PN47

We have asked on many occasions to Mr Daniel Lee to sit down and talk in a consultative manner about this. We have had, in fact, a mediator in by the port authority, a consultant called Bob Pierce who the port authority employ to try and get the parties to talk about a range of issues around the EBA and around the safety of the port workers, so we don't believe we have got any industrial action on at the moment.

PN48

We are prepared to sit down next week to talk around this issue. We are prepared with the port authority to come to an impasse to say that we will sit down in a consultative manner and to talk around the issue, as long as they are prepared to do that. As I say, I was told off by my members today for going back and putting that proposal to the port authority and they were very irate this afternoon in respect to that.

PN49

Yes, they have gone home tonight. There is another shift on that are working down there at the moment and there will be another shift tomorrow and there will be people working on the weekend, as far as I am concerned. I am not sure of the extent of that, but we can surely discuss that between the parties. There is no need for what is being said here. We believe part 5 is completely wrong in respect to what we are saying, are people aware they are doing their duties and we believe part 6, as I say, the lack of facilities, showers, cleaning, fresh water, table and chairs, fridges, microwaves and basically on the other side of the port itself, we nearly have the situation by lack of co-operation from the port authority, 100 wharfies were going to walk off the job and I stopped that.

PN50

That was last week and in respect to that, we still have that on the table as well to be resolved. There is a major safety problem. We have three shifts alongside. They have had correspondence from the union over a number of months, telling the port authority of these safety concerns, when you have three shifts alongside. You can't put 100 blokes into one or two sheds with no tables and chairs, when it is up to 30, 40 degrees heat.

PN51

You can't put 100 blokes into a shed whereby there is no facilities for their smoko and their lunch and you can't put 100 blokes onto a ship working right through the night, 24 hours, and then expect them to not have a shower or running water or whatever, so that issue still has to be resolved. The issue at hand at the moment, we are prepared to sit down and talk to the port authority to see if we can, as I say, to fix the issue up.

PN52

It may not be what they want or want to hear, but I have said all the way along to the port authority and Terry Sanderson, we are prepared to talk, to sit down in a consultative manner on Monday morning with the parties and report back to the Commission of an outcome. We don't believe that this should be an order for industrial action, because there isn't any.

PN53

We have a number of safety issues that have been raised time and time again with this port authority and management and it has got to the stage now, never mind the port workers, walking off the job, the wharfies are prepared to go home as well if this continues around the safety of our members and there is not much I can do about that.

PN54

The port authority have an obligation under the Occ Health and Safety Act, section 19 of the Act, duty of care of the employer and the employees and the safety reps on the job and my concern is legitimate. You would be aware that we have had some very hot days over the last couple of weeks, where people, up to 100 people are in a shed where there is no facilities whatsoever. We put in two second hand fridges last week, which is an absolute disgrace and a pie warmer or a microwave.

PN55

THE DEPUTY PRESIDENT: Mr Cain, I just want to at this stage get an overview from you, not all of the details, just a summary of your position and we will take it from there.

PN56

MR CAIN: Well, in summing up, we are prepared to sit down and talk to them. We don't believe that we have done any industrial action in respect to - we have got concerns around safety of the port workers at the moment, but in a longer-term instance, just to give you the background, we have got major concerns with the port authority over the wharfies' facilities as well.

PN57

The passenger ship I believe will be working, that is section 8, point 8, will be working and will be cleaned up tonight. In 7, as I say, there is no industrial action on foot at the moment and 9, as I say, they say something about the ports and terminals. The quarantine services are running back at the moment as far as I am concerned and I have pointed that out to our members. Industrial action in 10, it is not damaging any business because there is no industrial action. We have a number of safety issues. In 11, we say, yes, we will abide by the port services operation agreement, but we also indicate that the port authority are not abiding by that, either, under their duty of care under the Occ Health and Safety Act, so we are prepared to sit down, in summing up, and talk through the issues with a mediator there on Monday morning and I must indicate that we have a mass meeting on Monday morning and I am prepared to recommend that,
Mr Commissioner. Thank you, sir.

PN58

THE DEPUTY PRESIDENT: Thank you, Mr Cain. Mr Cain, I take it that you did receive the notice of listing of the matter.

PN59

MR CAIN: No. I got this notice of the listing of this matter - I think I spoke to Daniel Lee about 5 o'clock and I was on the job, trying to indicate to my members to resume work effectively so that if there is safety concerns around the quarantine or ships getting out, we have done everything possible to accommodate the port authority, so that isn't an issue here.

PN60

THE DEPUTY PRESIDENT: On the notice of listing, which I trust you have seen now - - -

PN61

MR CAIN: Yes.

PN62

THE DEPUTY PRESIDENT: - - - you will notice that there was a direction to provide to the Commission a written response by five pm today.

PN63

MR CAIN: Yes, I got that off your secretary before and I was on the job, as I say. I had my phone off. I only got the indication I was in the Commission from Daniel Lee about 5 o'clock that we were going to the Commission. By the time I got back to my office, it was 6 o'clock. By the time I got down to the city here, it was seven, by the time I got my delegates organised to come with me, so I just couldn't get any - as I say, I have explained the pros and cons point by point, where we are at and that is all I can do.

PN64

THE DEPUTY PRESIDENT: Yes, I understand that. I am raising it simply because a direction of the Commission, of course, should be complied with in usual circumstances.

PN65

MR CAIN: I am very sorry about that, in respect to that.

PN66

THE DEPUTY PRESIDENT: Yes, thank you. I move on now to confirm my understanding of the submissions that have been put so far by way of overviews of the positions of the parties. As I understand the submission of Ms Saraceni, there is still some industrial action taking place. As I understand the submission of Mr Cain, there is no industrial action that is happening, so I seek the clarification of both sides on that particular point. First, Ms Saraceni, can you confirm that is your position, that industrial action is happening?

PN67

MS SARACENI: It is, sir, but I did concede at the beginning that since I had filed the application earlier this afternoon, that we had been advised that the quarantine refuse service was to be up and running and I understand Mr Cain to have confirmed that here today, so that is one difference that has occurred. In relation to other bans and limitations and restrictions on performance of work, other than for that particular job of quarantine refuse clearance, we say that that is ongoing.

PN68

I understand Mr Cain to be relying on the exemption in the definitions section of the Act as to industrial action. Under section 4(1) there is a very detailed definition of industrial action at points (a) to (d) and we say that what is occurring does fall within that, but there is an exemption there under section (g) which says:

PN69

Action by an employee is not industrial action if the action was based on reasonable concern by the employee about an imminent risk to his or her health or safety.

PN70

And I understand Mr Cain to be seeking to rely on the exemption to that, to say that there is no industrial action, not that there is work actually happening other than for that refuse work. Section 4(1), sir, the definition of industrial action.

PN71

THE DEPUTY PRESIDENT: That is under (g), I take it?

PN72

MS SARACENI: Yes, which is one of the exemptions, (g)(i) is what I understand Mr Cain to be relying on, although I haven't heard him say - and his submissions are not that there is any imminent risk to his or to any employee's health or safety. In fact, Mr Cain has said that there are safety concerns that have been long-standing, not that there is anything - no imminent risk to health or safety.

PN73

THE DEPUTY PRESIDENT: So your position is, Ms Saraceni, that there is industrial action that is happening, is that correct?

PN74

MS SARACENI: Yes, sir, other than for the quarantine refuse work.

PN75

THE DEPUTY PRESIDENT: And can you indicate to me how many employees are involved and the nature of their work?

PN76

MS SARACENI: I understand about 20, sir, but perhaps Mr Lee could address you on the specifics of that.

PN77

THE DEPUTY PRESIDENT: Yes. Mr Lee.

PN78

MR LEE: Yes, sir, the section we are talking about is the maintenance and services section of the port authority. There is around about 20 staff employed in that, carrying out a range of tasks. They work on a day work basis, Monday to Friday day work basis, but that at the moment it is after hours. They do work on an overtime basis on a weekend, particularly in relation to quarantine rubbish and also cleaning of amenities.

PN79

The cleaning of amenities is done on a regular basis, on weekends, as well as depending upon whether stevedoring operations are occurring in the common user berths at the port. At the moment, at berths 11 and 12 there is a scrap metal ship by way of example where - I am not sure if it is Patrick's or P & O - is doing stevedoring on that operation. Our role is to clean the amenities on that berth.

PN80

Now, if those amenities aren't kept clean, then you have health and safety issues arising with Patrick's or P & Os employees, not our employees and also potential industrial action arising, stoppages of work arising from that. The other bans and limitations, I was advised late this afternoon by the team over at port services, which is a shift work group that works around the clock, providing services to ships, tying the ships up, preparing to berth the ships and cleaning up after ships leave, that they have been advised by Mr Cain from the MUA that they are not to use cranes or trucks currently located in the transport section which they use for removing and placing bollards for beams, fenders, which they need to protect the wharf when ships arrive, depending upon the nature of the ship.

PN81

One of those jobs is to be done by nine am tomorrow morning and that was to be done this afternoon, but because they were told by the union that there were bans placed on the use of cranes and they were also told there were bans placed on use of the contractors ..... that is still ongoing and an issue over the weekend, as well as obviously the cleaning over the weekend of the maintenance and services areas. That is assuming there is in fact no breakdowns over the weekend.

PN82

THE DEPUTY PRESIDENT: Thank you, Mr Lee. Can you clarify for me, is the industrial action that you are putting to me is occurring, is it happening now or is it impending, to occur tomorrow or on Sunday and, if so, when?

PN83

MR LEE: The cleaning will normally take place early tomorrow morning. It is scheduled to take place early tomorrow morning. The use of the crane and truck should have taken place this afternoon or overnight. It becomes time critical at
9 o'clock tomorrow morning when the ship arrives. It only takes about an hour to do, but it has to be done within that window and I have been advised by Mr Cain that the only industrial action that has been removed is the issue of quarantine rubbish, on health and safety grounds, as he put it.

PN84

THE DEPUTY PRESIDENT: So what you are putting to me, Mr Lee, is that cleaning is due to be undertaken early am - - -

PN85

MR LEE: Tomorrow.

PN86

THE DEPUTY PRESIDENT: Tomorrow?

PN87

MR LEE: Yes, tomorrow and the next day.

PN88

THE DEPUTY PRESIDENT: And on Sunday?

PN89

MR LEE: Yes.

PN90

THE DEPUTY PRESIDENT: And also in relation to an incoming ship you just referred to?

PN91

MR LEE: Yes.

PN92

THE DEPUTY PRESIDENT: If you can just explain that a little further?

PN93

MR LEE: The use of the crane for a large wooden beam weighing around about 2 tonnes, in preparation ..... There is also cleaning, I understand, couriering, and I understand through the - I think it might be Sunday there was more ships arriving in terms of unused berths. So it is a moving ship.

PN94

THE DEPUTY PRESIDENT: Thank you for that. Mr Cain I understand you to put to me that there is no industrial action happening, or - - -

PN95

MR CAIN: Yes, we say quite clearly, when I started the address, we are prepared to sit down, and I have said this to our members as well, which are very irate at the moment with the company, that we are prepared to sit down in a consultative manner on Monday morning and fix the issue in respect to - or talk about it. In respect to industrial action, as I say again, we don't believe we have any industrial action, we believe we have got a lot of safety concerns to be addressed, which they have left till now, and have still not addressed them. Imminent risk to health and safety. I take what Ms Saraceni said quite clearly. We do believe there is imminent risk to our people now actually working on safely, on this quarantine truck, because there is only one person working there, when there should be two. We also believe that there is imminent risk in a number of other areas which my duty of care, as an officer of this union, I cannot accept. I cannot accept, and that means on number 12 deck there, where there is ships there at the moment.

PN96

Firstly there is Augustus Riddle, the name, where our people are told be using, by the port authority at the moment whereby it is about 80 to 90 years old, where we have done inspections and we got photographs of the facility, where they expect wharfies to use, have a shower, go to the toilet, use the water that is in there, and inspect it as filthy, rotten, and in this day and age of 2005 should not be used. That is another ongoing thing. I am saying to fix the matter at the moment I am prepared to go back to my members - - -

PN97

THE DEPUTY PRESIDENT: Yes, I understand what you have put in that - - -

PN98

MR CAIN: So we haven't got no - - -

PN99

THE DEPUTY PRESIDENT: I understand your proposal. What I am wanting to be very clear about is what you are putting to me in relation to industrial action, and as I understand what you are saying is it is your submission that there is no industrial action occurring by your members, but I wonder if you can clarify for me further whether there is action that they are taking, but that you are in fact putting it to me that the action that they are taking meets the requirements of the Act and therefore is not industrial action. Is that what you are putting?

PN100

MR CAIN: That is, in essence, what I am saying sir.

PN101

THE DEPUTY PRESIDENT: Thank you. That clarifies that. In proceeding to deal with this matter I am bound by the Workplace Relations Act 1996 in that this is an application pursuant to section 127 for an order to stop or prevent industrial action, and if I was of the view that industrial action was happening, or threatening or impending in relation to an industrial dispute, or work regulated via a certified agreement, then I would be bound to hear and determine the application for an order as quickly as practicable. Having heard the submissions that have been put to me in noting that it is contested between the parties as to whether or not there is industrial action occurring, it seems to me that rather than proceeding into a formal hearing for evidence to be adduced by the parties on whether or not in fact industrial action is happening, or is threatened or impending, there may be more value in me proceeding to adjourn into a conciliation conference with the objective of seeing, in a brief period of time, and I would have in mind perhaps 30 minutes would be a maximum, to clarify from the parties informally and around the table as to whether or not a process could be agreed upon whereby the need of the port to carry out the services that it is putting to me it is obligated to carried out can be carried out, yet at the same time the concerns of the employees and of the MUA can be addressed, and some procedure put in place whereby through agreement between the parties both of those considerations can be met.

PN102

Before adjourning into a conference I would like to hear your views further on that proposal that I have put, because I would certainly not wish to waste the valuable time of the Commission and of the parties proceeding down that route if there is strong opposition to it. First Ms Saraceni.

PN103

MS SARACENI: Sir my instructions are that there is not strong opposition, but there are some matters that before we adjourn to a conference that perhaps need to be clarified. There is some matters that Mr Cain has raised which do not deal with issues that in the control of Fremantle Ports, when he referred sir to berths 11 and 12 and the provision of facilities for staff there. Those berths are run by either Patricks or P&O, not Fremantle Ports. So that is an issue that is better raised with those companies, and I understand a letter to Fremantle Ports refers to that. I think Mr Lee is trying to indicate if he could address you sir.

PN104

THE DEPUTY PRESIDENT: Certainly. Mr Lee please clarify that matter.

PN105

MR LEE: By way of clarification, we provide common use of berths to various ..... and we supply the amenities on those berths currently. There is an issue between the Maritime Union and the employers and by implication, us, Fremantle Ports, in terms of we clean and maintain and supply the berths on hire to the stevedoring companies. But the issue in terms of whether or not amenities are substandard and an occupational health and safety issue is an issue between employees of Patricks and P&O and Patricks and P&O. We, if you like, are a third party providing services in terms of cleaning, maintaining and those for a fee from Patricks and P&O.

PN106

In relation to our own employees, other than they - they are the ones who actually do the cleaning, we have our own amenities for our own employees. So what our employees are talking about in terms of that, they are talking about wharfies.

PN107

THE DEPUTY PRESIDENT: Thank you for that clarification Ms Saraceni.

PN108

MS SARACENI: There was just one other matter for clarification. There was some discussion about labour hire and the usage of that that Mr Cain addressed you on, Skilled Engineering, Adecco, et cetera. I am instructed sir that any discussions, or I think Mr Cain referred to an agreement very loosely that was reached, is dealing with the outer harbour port services area, which is a different area of work to the maintenance cleaning persons that we are referring to today. So just to make that clear sir that we are talking about two different things. But otherwise Fremantle Ports is happy to go to a conference.

PN109

THE DEPUTY PRESIDENT: Thank you for those points of clarification. Mr Cain.

PN110

MR CAIN: I don't want to hold the Commission up in respect to what is being said to me, but Ms Saraceni was not present, and one thing we do try to evaluate ourselves, and even though there it isn't in ..... we took the port authority in good will in respect of a number of areas what has just been said. Yes we believe we have an agreement over the labour hire people, and also, yes, we do have safety concerns. Mr Lee has indicated to you clarification. What P&O and Patricks tell me, and I will put it in a quite clear way, if Woodside subcontract were held, or give were held to a subcontractor they have an obligation under the occ health and safety act if someone is injured or maimed they can be taken to court or - as the contractor of that facility. P&O have an obligation according to Patricks - sorry. The Fremantle Port Authority have an obligation according to the other parties concerned, the subcontractors. In this case P&O and Patricks, and possibly Toll, they have an obligation under that Act to make sure them workers, if they are going to use them facilities, and Daniel, Mr Lee has said to me quite clearly they are still in control of that there. They are still in control of them facilities.

PN111

So it wasn't quite correct what he said. But ..... I believe we can sit down and resolve the issue, what the Commission has ordered. We have no problem whatsoever in discussing that issue now, and try and get a resolution to sort this out. Thank you sir.

PN112

THE DEPUTY PRESIDENT: Thank you Mr Cain. Having heard what has been put to me by the parties in response to my proposal that the hearing adjourn into a conciliation conference to address the two goals that I indicated. One to deal with the issue of the Fremantle Port Authority's need for work to occur, as I understand it, from tomorrow morning onwards over the weekend, in relation to its commitments. On the other hand, for the MUA's concerns in relation to the members that are involved in performing this work are satisfied that there should be an adjournment into conciliation for approximately 30 minutes at which time, noting the clarifications that both parties have made to their positions in relation to common user berths, in relation to the contractor and the outer port harbour services area, and in relation to the obligations of all parties, that there should be a discussion for me to hear further the proposals of the parties as to how, by agreement, these two goals can be achieved and a process can be put in place to have the matters which have led to this application being addressed, and dealt with, and it would be my intention at the conclusion of that short conciliation period to return to a hearing to have a confirmation from the parties, on the formal record, of how this matter should proceed from that point on.

PN113

With those considerations in mind I will adjourn for approximately five minutes and we will reconvene in this room, but in a more informal conference format. We will now adjourn.

<SHORT ADJOURNMENT [8.25 PM]
<RESUMED [8.56 PM]

PN114

THE DEPUTY PRESIDENT: We resume back in hearing at the conclusion of a brief informal conference which took less than 30 minutes, in which there was a concise and constructive discussion between the parties as to proposals that might address and resolve the issues which led to the application being lodged. I seek a report back now from each party to confirm the elements that have been the basis of an agreement to allow this matter to conclude tonight. First Ms Saraceni and Mr Lee.

PN115

MS SARACENI: Thank you sir. On my understanding sir the position is that the application, the 2005/1993 be adjourned on the basis that there be discussions between the Fremantle Port Authority and the MUA over a period of two weeks. Those discussions revolving around safety issues with the quarantine trucks, the issue of labour hire, and then the issue of the amenities, that the Fremantle Port Authority being involved or otherwise with those amenities, and that during the discussions tat the MUA has undertaken not to take any industrial action, and that there be a report back to this Commission by noon on Tuesday 15 March.

PN116

THE DEPUTY PRESIDENT: Thank you. Mr Lee did you wish to add any understanding that you may have to that submission of Ms Saraceni?

PN117

MR LEE: Yes sir, in terms of the notification by Mr Cain. He will notify the ..... refer the delegates and the ..... immediately after normal work resumes immediately after this hearing.

PN118

THE DEPUTY PRESIDENT: Mr Cain.

PN119

MR CAIN: It wasn't quite captured correctly. I believed that we said that we would get WorkSafe down to go around the trucks as well, so that there is an independent person there.

PN120

THE DEPUTY PRESIDENT: Yes, indeed, Mr Cain this is your opportunity to clarify exactly your understanding of the basis - - -

PN121

MR CAIN: It is my understanding then, it is quite clearly what has been captured by Daniel and Ms Saraceni, but also number 4, the job around Theo Bader, and we spoke about that. That hasn't been addressed. The amenities, the quarantine where we believe there should be two people in respect of the safety of them doing that job or that function, and the labour hire, and also WorkSafe to come down with respect to going around to get involved in that safety issue.

PN122

THE DEPUTY PRESIDENT: Thank you. Just to ensure there is clarity and a meeting of minds, I would seek a further submission of Mr Lee to confirm your view of those matters raised by Mr Cain.

PN123

MR LEE: We understand that in relation to the clarification of safe water practice as with regard to the quarantine and other such issues, WorkSafe will be involved in the normal course of events, in terms of clarifying what is safe work practices. And the issue with regard to Mr Theo Bader discussions will occur on the general issue of labour hire, as well as Mr Bader.

PN124

THE DEPUTY PRESIDENT: Thank you. Mr Cain did you wish to add any further clarifications?

PN125

MR CAIN: I just want to clarify what we stated before, and them discussions will be open and frank around Mr Bader, in respect to whether that it is proven that there is no work for Mr Bader and he has to leave or whatever it is, that there will be a letter or some correspondence between the parties that this person is not going to be victimised in respect of what our members seek, because they are members of the MUA they believe that you if you get the sack or if you get offloaded or whatever way phrase you want to put it, in respect of the Fremantle Port Authority management. So we would be seeking them for clarification as well in respect of Mr Bader.

PN126

THE DEPUTY PRESIDENT: Yes, I understand Mr Cain but what you are putting is that this is the position, you are foreshadowing the position that you will put in the discussions that are to be held. As it were you are giving notice that that will be the position you will be putting in those discussions and discussion will be held to discuss that, and indeed to try and resolve that by agreement, while this matter is in private discussions under the auspices of this hearing before the Commission. I would like to clarify for myself - Mr Cain my understanding is that you have indicated to the Commission that you - my understanding is - I am quite clear about this but I would like to confirm it, that you have undertaken to contact all the necessary people to ensure a return to work after the proceedings tonight, to say that the morning shift can operate as normal. Is that correct?

PN127

MR CAIN: Yes, that is correct.

PN128

THE DEPUTY PRESIDENT: Thank you Mr Cain. If there are no further clarifications - - -

PN129

MS SARACENI: Sorry sir, yes. I think I heard Mr Cain or you to say tomorrow morning, I understand that there is a shift of workers there tonight. So the return to work would be tonight rather than tomorrow morning.

PN130

THE DEPUTY PRESIDENT: Thank you for clarifying that.

PN131

MS SARACENI: That is one issue sir. And just - Mr Cain has said on a couple of occasions sir, that he made assertions that there is victimisation of employees of Fremantle Ports based on union membership. Just to put on the record that that is strenuously denied by us, but that is all I need to say about that now sir.

PN132

THE DEPUTY PRESIDENT: Thank you. It would be of concern to the Commission if there was any victimisation of any members of any organisation because of the requirements of the Workplace Relations Act, but I note the positions of the parties. I note that clarification has been made that there is work to continue as from tonight, and so I have noted that that is indeed a relevant consideration, and I understand and believe that that has been recognised and will be addressed as part of the agreement between the parties tonight.

PN133

MS SARACENI: Thank you sir.

PN134

MR CAIN: Thank you sir.

PN135

THE DEPUTY PRESIDENT: Thank you Mr Cain. If there is no further submissions by way of clarification or confirmation I am satisfied that useful progress has been made tonight, and it provides the basis of further discussions which, as I have indicated, should be genuine discussions, should be constructive discussions, should be in accordance with the spirit of the Workplace Relations Act 1996, with the goal of achieving a resolution between the parties by compromise, after full and frank discussions. The application will therefore remain open for a period of two weeks as indicated. The parties are at liberty to make an application to the Commission at any time if there is any urgent problem that has not been foreseen by either party tonight. But in the event that it did occur an urgent application could be lodged to reconvene these proceedings, and if in fact the parties succeed in resolving the matters then the applicant should, in writing, if the matters are resolved, withdraw the application or alternatively, if they are not, these proceedings can be resumed if required. If there are no further matters for consideration this hearing is adjourned.

<ADJOURNED INDEFINITELY [9.08PM]