C2006/3102, Transcript of Proceedings [2006] AIRCTrans 1110 (2 October 2006)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 15792-1

COMMISSIONER BLAIR

C2006/3102

SKILLED ENGINEERING LTD (LABOUR HIRE)
AND
AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA
s.496(1) - Appl’n for order against industrial action (federal system).
(C2006/3102)

MELBOURNE

2.08PM, WEDNESDAY, 20 SEPTEMBER 2006

PN1

MR A DALTON: I appear for the Australian Industry Group, represented Skilled in this matter. With me today is MR P BOROBOKAS from Skilled, as well as MR E WOJNIUS and MR M TWENTYMAN, both from the company.

PN2

MR B TERZIC: I appear as an employee of the AMWU and technically, I need to seek leave as an agent on behalf of the CEPU.

PN3

THE COMMISSIONER: Thank you Mr Terzic. Mr Dalton, do you have any objections to Mr Terzic?

PN4

MR DALTON: No, I don't have any objections Commissioner.

PN5

THE COMMISSIONER: Thank you, acting as an agent, leave's granted
Mr Terzic. Yes Mr Dalton.

PN6

MR DALTON: Commissioner, I have had an opportunity to just have a quick chat with my colleague there. He has asked before I go into submissions if we could go into conference first, and I'm happy to do that if that suits the Commission.

PN7

THE COMMISSIONER: Sure, fine. We'll go off transcript thanks.

<OFF THE RECORD

PN8

THE COMMISSIONER: Yes.

PN9

MR TERZIC: I appreciate Mr Dalton's acceptance of that and I just want it have it recorded that everything that transpires in the conference will be without prejudice, off the record and confidential between the parties.

PN10

THE COMMISSIONER: Yes, thank you. Now we'll go off transcript.

<SHORT ADJOURNMENT [2.10PM]
<RESUMED [2.20PM]

PN11

THE COMMISSIONER: Thank you, yes Mr Dalton.

PN12

MR DALTON: Yes, thank you Commissioner. This is an application by Skilled Engineering under section 496 of the Workplace Relations Act for orders to stop industrial action that is occurring that involves employees of Skilled. Just before I move on Commissioner, I would just like to notify of a need to amend the paperwork that has the order - the application that's been put in to the Commission. The order in the title says:

PN13

This order shall be known as Skilled Engineering Ltd -

PN14

Skilled Engineering Ltd is the name of the applicant. On advice that whilst Skilled Engineering Ltd is the name of the company as it appears on the two industrial instruments that are currently applicable in regards to this matter, the company's name has recently changed to Skilled Group Ltd.

PN15

THE COMMISSIONER: Right, so we just take out the Engineering?

PN16

MR DALTON: And add Group, yes. Skilled Group Ltd.

PN17

THE COMMISSIONER: Skilled Group Ltd, is that right?

PN18

MR DALTON: Now, the action that is occurring is a refusal by employees of Skilled to attend for work. We would say that this is industrial action that falls within the definition of industrial action as specified in section 420(c) of the Workplace Relations Act. The background to the matter is that the employees of Skilled are working at the Toyota site in Altona. There are ten employees of Skilled working at that site under labour hire arrangements. The employees work over three shifts, day, afternoon and night. The employees provide maintenance services and the employees are mechanical and electrical tradespersons. The employees may be members of either the AMWU or the CEPU electrical trades division.

PN19

The employees are currently covered by either the Skilled Engineering Ltd Metal and Associated Industries Labour Hire Certified Agreement 2003-2006, which is AG number 831590. That agreement has an operative period until 31 March 2006, but the agreement has not been replaced and is not currently the subject of any bargaining period or protected action notices. The agreement with regards to the CEP ETU is the Skilled Engineering Ltd ETU Enterprise Agreement
2003-2005 and that AG number is 828887 and that agreement has a nominal expiry date of 31 October 2005. Again, that agreement is not currently the subject of bargaining period notices or protected action notices. Now, the reason for the action, we understand that there is a dispute between Toyota and the two unions, being the AMWU and the ETU, regarding closure at the Port Melbourne site.

PN20

Toyota is also currently the subject of industrial action by those two unions. Toyota applied for and was granted section 496 orders yesterday and the numbers of that Commission - sorry, the number of that decision by Commissioner Hingley is PR974106. Now, employees of Skilled at the Toyota Altona site have been caught up in this industrial action, which is being undertaken by Toyota's employees. The Skilled employees are taking similar industrial action to that of the Toyota employees. The action commenced on Tuesday 19 September 2006. The day shift employees attended a meeting of the Toyota employees with their respective unions. The meeting was addressed by an AMWU organiser, Victor Jose, and at that meeting the employees resolved to stop work for 24 hours.

PN21

The employees at that meeting, I understand, also voted to include contractors in the action. There was a further meeting today 7.00 am and at that meeting, the employees of Toyota resolved to extend the stoppage indefinitely. Skilled employees have also not attended for work in line with the similar action taken by the Toyota people. We would submit that it's clear that industrial action is occurring and that that industrial action is unprotected. In terms of the relevant jurisdiction of the Commission, section 496 of the Act at (1) says:

PN22

If it appears to the Commission that industrial action by an employee or employees, or by an employer, that is not, or would not be, protected action:
(a) is happening; or
(b) is threatened, impending or probable; or
(c) is being organised;
the Commission must make an order that the industrial action stop, not occur and not be organised.

PN23

In terms of this matter Commissioner, I have two employees of Skilled here with me today. Mr Wojnius, who is the Toyota account manager with Skilled Engineering, and Mr Twentyman, who is the Victorian operations manager for Skilled. Both are able to give evidence to the Commission is that is required. At this point I think I'm satisfied that that gives the Commission a summary of what is occurring. Subject to what my colleague has to say, I think I can leave it there.

PN24

THE COMMISSIONER: Yes, thank you. Yes Mr Terzic.

PN25

MR TERZIC: The unions I represent do not intend to actively contest the application before the Commission. But in taking the approach I've outlined, nothing should be inferred to the extent that the unions admit or concede any of the allegations made in relation to the matters raised by Mr Dalton, if the Commission pleases.

PN26

THE COMMISSIONER: All right, thanks Mr Terzic. As referred to by
Mr Dalton, section 496(1) of the Workplace Relations Act states:

PN27

Orders relating to action by federal-system employees and employers
(1) If it appears to the Commission that industrial action by an employee or employees, or by an employer, that is not, or would not be, protected action:
(a) is happening; or
(b) is threatened, impending or probable; or
(c) is being organised;
the Commission must make an order that the industrial action stop, not occur and not be organised.

PN28

Given the submissions of the parties this afternoon, the Commission is satisfied that section 496(1)(a) is in fact happening. There is no discretion on the part of the Commission as to whether or not it wishes to issue an order. If it is satisfied that one of those or all of those three conditions in (a), (b), (c) of section 496(1) have been met, the Commission is compelled to issue the order. The Commission will issue the order in the terms sought, save for the amendment which identifies Skilled Group Ltd as being the employer, rather than Skilled Engineering Ltd. The Commission will issue the order. The order will be effective from 5 pm tonight. That gives two and a half hours. The order shall remain in force for a period of one month. The Commission has already indicated to the parties off transcript, a means of which this matter may be progressed and the Commission will await a response from the parties about that proposal. No further business? The Commission stands adjourned.

<ADJOURNED ACCORDINGLY [2.29PM]