C2006/3273, Transcript of Proceedings [2006] AIRCTrans 1220 (17 November 2006)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 16054-1

COMMISSIONER EAMES

C2006/3273

TECHNIP OCEANIA PTY LTD
AND
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).
(C2006/3273)

MELBOURNE

10.00AM, FRIDAY, 03 NOVEMBER 2006

PN1

MR C MILNE: I appear on behalf of Technip Oceania Pty Ltd, together with MR B MILNE.

PN2

MR G BORENSTEIN: I appear on behalf of the CEPU, together with the relevant organiser, MR D TIMMERS and MR P LARKINS.

PN3

MR E QUIGLEY: I appear on behalf of the Australian Building and Construction Commissioner. The Australian Building and Construction Commissioner has given notice of his intervention in this matter, Commissioner, and I assume that you've got a copy of that notice.

PN4

THE COMMISSIONER: I do, yes.

PN5

MR QUIGLEY: In fact more correctly I think the notice was actually made by the Deputy Commissioner acting under delegation in the absence of the Commissioner herself.

PN6

THE COMMISSIONER: Yes, all right. Leave hasn't been sought in relation to your application. I take it you're making it on the basis of earlier submissions I heard in matters similar to this one, Mr Quigley.

PN7

MR QUIGLEY: Yes, I do.

PN8

THE COMMISSIONER: You appear as a right, I take it?

PN9

MR QUIGLEY: The ABC Commissioner has, as I submit, a right under section 72 of the Building and Construction Industry Agreement Act to intervene in proceedings in the Industrial Relations Commission, where the matter concerns a matter arising under the Workplace Relations Act is a matter involving building industry participant or involve building work, and is a matter before a Commissioner. Those four criteria are set out in section 72. And it's our submission that the right of intervention arises from that and overrides any general provision relating to intervention such as in those provisions in the Workplace Relations Act.

PN10

The particular powers of intervention of the ABC Commissioner have been dealt with on a number of occasions by members of this Commission. The initial decision was one of Commissioner Gregor in December of last year involving matter Leighton Kumagai Joint Venture, and that was subsequently followed by a decision of Deputy President Ives in a matter involving Thiess. Now, subsequently a host of decisions being made by members of the Commission of the like of Senior Deputy President Watson, Commissioner Harrison, and on a number of other occasions the Commission has dealt with a matter where it has not been contested that the ABC Commissioner has that right.

PN11

I might add though, Commissioner, that it appears that each time the ABC Commissioner does intervene there is usually an objection, but not always, and that I should point out too that the decisions of the Commission allowing intervention have not been challenged by any of the unions subsequently by way of appeal. Although in relation to the decision of Commissioner Gregor that I referred to, the decision of the Commissioner was appealed or sought to be appealed by the CFMEU in that matter, but it didn't seek to appeal against the question of intervention. In the event of that matter the Full Bench didn't grant right to appeal in any case.

PN12

THE COMMISSIONER: Yes, I'm familiar with that.

PN13

MR QUIGLEY: I've got further submissions on the question of intervention should it be necessary, Commissioner.

PN14

THE COMMISSIONER: All right. Perhaps, Mr Borenstein, have you got any formal objection?

PN15

MR BORENSTEIN: Well, for the record I do object to the ABCC intervening in this matter. I don't seek to waste the Commission's time in going through the usual arguments that I've put many times before, in most situations unsuccessfully. So I just make it for the record. I don't want to waste the Commission's time.

PN16

THE COMMISSIONER: No, that's fine. I think the submission you put, Mr Quigley, also highlights that I'm probably the last man standing in relation to views that I've taken in the past in relation to the appearance of the ABCC. And whilst, when I was first appointed to the Commission, Senior Deputy President Riordan encouraged me to be courageous in this institution, but I think my courage has almost failed me in this case. Your appearance in this matter is noted for the record.

PN17

MR QUIGLEY: Thank you very much, Commissioner. I might add, the word courageous is one that Sir Humphrey - - -

PN18

THE COMMISSIONER: Yes, I know, I'm very familiar with that as well.

PN19

MR QUIGLEY: Thank you, Commissioner.

PN20

THE COMMISSIONER: Mr Milne?

PN21

MR MILNE: Thank you, Commissioner. Commissioner, before I start I seek leave to amend my original application. I need to amend that in two ways by inserting two new clauses, which I will provide a copy of, for the purposes of clarification more than anything else, so I will do so now. I'll hand up to the Commission a document that details those changes.

PN22

THE COMMISSIONER: These are additions to the - - -

PN23

MR MILNE: Sorry, yes, they're additions to the draft order that's attached to the application, Commissioner.

PN24

THE COMMISSIONER: Yes, all right. Yes, I follow. All right.

PN25

MR MILNE: Thank you. Commissioner, the only - - -

PN26

THE COMMISSIONER: I take it Mr Borenstein has got a copy of this?

PN27

MR BORENSTEIN: Of the amendment, yes.

PN28

MR MILNE: Commissioner, the application before you is obviously made under section 496 of the Workplace Relations Act, and the application actually applies to employees of Corke Instrument Engineering Australia Pty Ltd. However the application is actually made by Technip Oceania Pty Ltd, and it's certainly Technip's submission that we're able to make that application under section 496(4) as a person who is affected whether directly or indirectly, or who is likely to be affected whether directly or indirectly by the industrial action that we allege is occurring.

PN29

We are directly affected, that is, Technip is directly affected in that it is the project manager of the - or responsible for the construction of the Otway Gas Plant Project, and to whom Corke Instrument Engineering actually subcontract. Now, the application before you refers to industrial action that is currently occurring and likely to continue to occur at that site. The industrial action consists of a ban, no matter what it may be called, on overtime being worked by the electricians employed by Corke and their associated classifications at the Otway Gas Plant construction site. That means electricians, instrument tradesmen, TAs, et cetera, Commissioner.

PN30

Now, for our application to be successful the Commission must only, and I say only, be satisfied in accordance with section 496(1) that it only appears to the Commission. You don't need to be satisfied or you don't have to have it proven to you, that it must only - for our application to be successful you must only believe that it appears that industrial action by an employee or employees, or by an employer, that is, would not be protected action is happening or is threatened, impending or probable or is being organised.

PN31

Now, if this is the case, that there is - that it appears to you that this is occurring, then you must make an order. It's not discretionary, you must make an order that the industrial action stop, not occur and not be organised. Now, the current industrial action that is occurring, being the overtime ban as I recall it, is not occurring as part of the bargaining period, nor has there been any attempt by the employees to initiate a bargaining period or protected action. So the action therefore obviously is not protected and can't be claimed to be.

PN32

Now, Corke, as I understand it, is a constitutional corporation and fits the definition of employer contained in section 6 of the Act. Corke does have an ACN number, and I'm not sure whether you need that, Commissioner, but it's 007018331, and Corke itself has been served with the application as well. Now, the employees of Corke are also employed in accordance with section 5 of the Act. Now, in our submissions accordingly there is no impediment at all to the Commission making an order if it appears that industrial action is occurring. In fact it's our submission that you must make an order if it appears that industrial action is occurring.

PN33

The level of proof therefore is very low. We don't have to prove that the industrial action is occurring, it must only appear that it's occurring. Now, there are a number of facts that substantiate that industrial action is in fact occurring, not just appearing, but is in fact occurring, and they are quite clear. Corke currently employs approximately 85 to 90 persons on the site, but has previously employed up to around about 150. Now, that goes up and down obviously in the normal course of events on a construction site, and it's the usual turnover of labour as required when and if to suit the appropriate levels of manning required by the site.

PN34

Now, Commissioner, during the months of September and October various redundancies occurred on the site, and it's normal and customary turnover of labour, they were certainly over manned on the site, and those redundancies occurred across a broad range of classifications, not just the ETU or the electrical trades, but it occurred across the civil trades and the mechanical trades as well. In fact the electrical trades, there have been less people made redundant in electrical trades than there have been in the mechanical trades.

PN35

Now, as a result of those redundancies occurring overtime bans were put in place on 11 September of this year. Now, there are a number of - I'm not sure, Commissioner, whether you want me to go through the chronological events leading up to that at this stage, but I do have that if it's necessary and I'll reserve that perhaps after we hear what Mr Borenstein has to say. Now, those bans were put in place by a general meeting of employees, included all of the trades. The civil trades lifted those bans on 20 September, and the metal trades lifted the bans on 21 September.

PN36

Now, the ETU continued with the bans - or, sorry, the electrical people continued with the bans and have not worked overtime since 11 September despite on each and every day at the pre-start meeting being asked whether they are available to work that overtime. Now, Commissioner, I do have a letter here from Corke attesting to that fact, that it's occurred, and I'll hand that up to the Commission.

EXHIBIT #M1 LETTER FROM CORKE RE OVERTIME BANS

PN37

MR MILNE: Commissioner, you will see that a number of things are contained in that letter, and it says:

PN38

Please be advised that up until week ending the 10th of the 9th Corke employees were working approximately 56 hours per week on the Otway Gas Plant. Since this date the overtime has ceased. The work group are asked on a daily basis at the morning pre-start meeting to insert the hours in which they intend to work, and at the end of every pre-start they are advised that overtime is available for those that are willing to work. At this stage no one has been available since 11.9.06.

PN39

Now, Commissioner, there are two relevant points in that. One is that the employees up till the 11th of the 9th had been customarily working 56 hours a week. Now, that was by agreement as I understand it. And so the customary work practices of all the trades on the site was 56 hours. The second salient point is of course that no one has been available for work since 11 September. Now, I'm anticipating that Mr Borenstein may say there is no industrial action occurring, and I'm only anticipating that, so I'll address that in a moment.

PN40

But the point there is, it is quite clear the ETU organiser was on site and addressed the meeting in the car park on the 11th or the 10th - I'll have to check my documentation. Immediately after that meeting the bans were put in place, and there has been reasonable contact as I understand it made by employees of Corke through to that organiser, Mr Troy Gray, who was involved, over the period of the bans being in place, and there has been no lifting of those bans as a consequence.

PN41

Now, I'm putting to you, Commissioner, that there are in fact bans in place, no matter what they are called, and it's demonstrable, and there are pre-start sheets there available to you where the supervisors have noted that they've asked - and I've got a couple of examples of those if necessary - that people have been asked on each and every day. Now, it would be impossible to deny that there is in fact industrial action as defined in the Act occurring on the site. Simply should it be put to you that they've chosen not to work overtime, Commissioner, that would be just, in my view and my submissions, an attempt to circumvent the provisions of the Act, and insofar as it relates to industrial action.

PN42

Now, as I said, the customary method of working on the site was for the electricians to be working 56 hours, that being the overtime component of that being up to 10 hours as required on each day. The overtime worked on site is not guaranteed, it is overtime to be worked as required by, and indeed dictated to by the requirements of the job and requested by the employer. So there is - it's not a 56 hour week site. People are required to work a reasonable amount of overtime up to and including 56 hours as required.

PN43

Now, Commissioner, it's rather a strange circumstance on site, and perhaps a little bit of history may - and I know you've dealt with one matter down there earlier on in the piece before my involvement, and I'll get to that shortly. However the site - more for information so you can understand how it's working there. It was originally, or Technip were originally the project managers and Vetco Aibel were the constructors of the project. Now, Vetco Aibel are no longer working on the project, and Technip are now managing that as well as the subcontract labour on the site.

PN44

THE COMMISSIONER: It was Veto Aibel I think that I had the involvement with previously.

PN45

MR MILNE: Yes, it was, Commissioner. And the relevance to that is, that initially when the project started Vetco Aibel reached agreement with the unions on a certified agreement and that was certified, and I do have a copy and I will hand it up just for the record. That was certified some time ago, and it was certified by you, Commissioner, on 20 April.

PN46

THE COMMISSIONER: And all these things come back to haunt me.

PN47

MR MILNE: On 20 April 2005. Now, it has expired, and the terms and conditions have been extended by a letter of agreement and a letter of exchange between Technip and the unions concerned. Now, that letter was put out on
19 June 2006, and I'll hand a copy of that up. Now, that went to a whole range of issues such as increases in wage rates for the further duration of the job, et cetera.

EXHIBIT #M2 LETTER OF AGREEMENT DATED 19/06/2006

PN48

MR MILNE: So while there is technically not a certified agreement in place for Technip, there is a letter of exchange which the unions have all agreed was appropriate, and they certainly negotiated that with the management prior to my involvement on site. Now, that agreement, the certified agreement, the terms and conditions of that certified agreement as altered by the letter of exchange are what the delegates on the site have held Technip to, and indeed what Technip have held the delegates on the site to. Now, the agreement does refer to overtime under protected leisure time in clause 19. Now, it does refer to 44 hours a week for the ETU, however it also allows that to be increased to a different level by agreement.

PN49

Now, the point, Commissioner, I'm making is that they were working 56 hours a week by agreement, so in accordance with the terms and conditions of what I would class as the site conditions the electrical people have moved to the same level as the other trades on site have deemed to be reasonable, and that was by agreement.

PN50

THE COMMISSIONER: Is there any documentation in relation to that, or was that just negotiated as a verbal agreement?

PN51

MR MILNE: I don't know, it was prior to my time. But certainly the letter from Corke attests to that, they being the employer of almost all of the electrical labour on site at the current time, that attests to the fact that they were in fact working 56 hours a week. Now, it is certainly to the best of my knowledge, it was an agreed position. I just simply cannot give you any documentation, Commissioner, because it was prior to my time. But I would suggest to you that that letter from Corke does substantiate that thoroughly.

PN52

Now, the decision to be unavailable to work by the electricians as opposed to an official ban, as I've said, in our view, Commissioner, is nothing but an attempt to circumvent the requirements of the Act and to try to protect the ETU and its members obviously from any issues or any ramifications that may come from the Act. It's not unusual for that to happen, and I'm sure the Commission has seen that before in its days here. The matters are quite clearly able to be demonstrated to you that there is industrial action, it appears that there is industrial action occurring, and that's what we're saying to you, Commissioner, that's all you need to know, all you need to be satisfied on.

PN53

Now, we would say that it's demonstrable that there is industrial action occurring, not just appearing, but you must only be satisfied that it's an appearance. And the facts are, the simple facts are that the employees have since 11 September failed to perform work in the manner that it was customarily being performed in. The day before they were working 56 hours a week, the day after they're not. Now, by doing so the employees have put in place a ban, a restriction or a limitation on the manner that the work is customarily being performed in.

PN54

Now, the ETU and its members on site are well aware that the refusal to work overtime is a ban, a restriction or a limitation, and discussions I've had with numbers of them do accept that. The Commission itself, as you've alluded to earlier, Commissioner, you have actually issued a recommendation in a similar matter on the same site against the same employees, and that was in - I do have a copy of that here too, Commissioner. It was a recommendation and it was in the Vetco Aibel one and that was on 13 February 2006, and I have a copy here to hand up.

PN55

Now, Commissioner, the 13 February 2006 is only some eight months ago. The same employees generally are working on the site. Your recommendation went to obviously how to deal with the working of overtime on site. Now, it would be drawing a long bow to say that given that recommendation was put in place, and that the employees then reverted back to working in accordance with your recommendation, that they would be unaware of the requirement to work overtime as being - or, indeed, if they don't abide by the requirement to work a reasonable overtime, that it would be a ban or limitation of some sort. And they're well aware of it. Now, Commissioner - - -

PN56

THE COMMISSIONER: That was an application made under section 99 at the time of course.

PN57

MR MILNE: Yes, it was.

PN58

THE COMMISSIONER: In those days. This is a slightly different application.

PN59

MR MILNE: Yes, it is, and I'm aware of that, Commissioner. But what I'm saying, Commissioner, is that there's a history of this. This is the second time this year that the ETU and its members have placed some sort of ban on overtime. Now, had it been the first time we may have been here on a section 99 notification as opposed to a 496, but the facts are that the bans are in place, and indeed they have a history of doing so. Now, the terminology of just being unavailable to work, or choosing not to work, is simply a subterfuge to circumvent the Act, as I've said in our submissions to you, Commissioner, and that should be plainly obvious to all concerned, in that the work is not being worked customarily. Had it even tapered off or had it done something, but it was immediately following a meeting with the organiser that it ceased from 56 hours back to 36 hours. It cannot be seen as anything other than industrial action.

PN60

Now, it's our submission to you, Commissioner, given that that's the case, and in these circumstances you can be satisfied that there is actually industrial action occurring, even though for our application to be successful today you don't need to be satisfied, but you must say, as I've already alluded to, you must only be satisfied that it appears that it's occurring. But it is in fact actually occurring, and I think the letter from Corke demonstrates that. If that's the case, then as I've said earlier, you must make an order under section 496(1), and it's not discretionary.

PN61

In our submissions, Commissioner, there are no reasons why the Commission cannot make the order today in accordance with section 496. In fact we would say that you must make the order today within the 48 hours from the time of lodgement, which I think would take it to around 2 o'clock this afternoon. That's in accordance with subsection 5 of section 496. If you decide that you're not able to do so and you rely on an interim - or you believe you're unable to do so for whatever reason, then we would press for an interim order, that interim order to be in the same terms as the draft order that's put before you. But we would say that in the circumstances of this application that you could do that, but in fact you must do the first one, you can do the second interim order, and the only reason you can't do the second interim order, if you believe you can't do it in time, is if there's a public interest aspect. And we would say there is no public interest aspect in these proceedings to prevent you from making at least the interim order, although we would be pressing for the order in total.

PN62

Now, Commissioner, if I can address the order itself, we believe the order as amended adequately provides for the requirements under the Act. We believe that the order is appropriately written and binds those people that are relevant and involved and parties to the industrial disputation, or the industrial action, or who are being affected by the industrial action. The application is a stand alone application, it is made by Technip Oceania under the provisions of us being a person affected. It is not an application made by Corke, although we have served Corke with the papers, the application, but it is our application. It is not subject to any other impediments such as Building Industry Dispute Panel decisions or any such nonsense.

PN63

The order is ours. We are not bound by the Building Industry Dispute Panel or any other such panel. And indeed that is why, Commissioner, that we've made the amendments today. We believe it's appropriate, we believe those two amendments address that, we believe the second, it addresses the issue of what is appropriate and reasonable overtime, in that all we're saying is that they revert to what they had customarily been doing. It is nothing other than implementing and providing for the site to go back to its customary way of working, nothing more, nothing less.

PN64

The parties bound by it are as I said, Technip in its own right, there is Corke who have been served as the employer of the labour subcontracting to Technip, the - for want of a better rather than the longer terms, the ETU, Mr Troy Gray. And Mr Gray is not here, but Mr Gray has had over the past several months, Mr Gray has been responsible for the - or, in our view - for the site. He has been making numerous phone calls to the client and has attended the site and, in fact, is the person in most instances that we are aware of that the delegates speak to over this particular matter. So Mr Gray is appropriately named in it.

PN65

It also broadens it to the delegates, officers and employees of the CEPU. That's an all encompassing thing which is not an unusual method to apply to the parties bound. Now, the industrial action being required to stop under section 3 in there, it's the standard sort of form that these particular types of orders take, but it does address specifically the overtime issue as amended, that is, the application as amended. It does give obviously the employees exclusions from being bound by the terms of this in the normal sense, that being whether there's a risk to the health and safety or authorised action, et cetera.

PN66

There is provision for service on all of the employees concerned, and that is by us placing on the Corke noticeboard by 8 o'clock on Monday 6 November 2006 a copy of the order that we're seeking, or that actually the Commission issues.

PN67

THE COMMISSIONER: How many people are we talking about in terms of the electricians and the - - -

PN68

MR MILNE: About 80, 80-85, you know, up and down. The notices have been - the employees are aware of this application today. Our applications and all other such correspondence has been promulgated on the relevant noticeboards. We would notify the employees of any subsequent order to that application in a similar way. There is nothing unusual in the process of the notice of it, and the term of the order, we're simply saying that the order should take effect from 7 am on Tuesday. That allows time for people to prepare whatever documentation and place it on the noticeboards, Tuesday 7 November 2006, and shall continue for a period of six months or until the completion of the project, whichever comes first.

PN69

THE COMMISSIONER: What's anticipated there in terms of the project finishing?

PN70

MR MILNE: It's anticipated, Commissioner - all projects finish in a different way, but this one, generally speaking the workforce will continue to be downsized. It's over the hump and we're downsizing now. There's a fair degree of work left.

PN71

THE COMMISSIONER: But you would anticipate it's likely to be less than six months?

PN72

MR MILNE: Absolutely. The majority of the employees will probably be finished around about Christmas time. There will be commissioning works and things of that nature, but that is not necessarily going to be done by Technip. I think the client will commission its own plant as such, but there should be gas in the plant around about Christmas, middle of January, something of that nature.

PN73

THE COMMISSIONER: All right, that gives me some idea.

PN74

MR MILNE: But substantially less. We currently have about 560 people on site on a daily basis. Now, that includes management and supervision and visitors and anyone else that may come through the gate, and there's probably 100 of those would be management and supervision, so we've got a workforce on the tools of, you know, 400-odd, and I suspect that that will be down to almost nil around about Christmas time.

PN75

THE COMMISSIONER: That gives me some idea, thank you.

PN76

MR MILNE: So, Commissioner, at the current time, as late as yesterday, as I understand it, the employees again refused to work overtime, and in those circumstances we would request that the Commission make the order in the form that we - the amended order in the form that we have sought, and we would ask the Commission to make that order as of today's date. Thank you.

PN77

THE COMMISSIONER: All right, I'd better here from Mr Borenstein.

PN78

MR BORENSTEIN: Thank you, Commissioner. Mr Milne assumes correct, my submit there is no industrial action occurring with you, so it's appearing or occurring, or whatever phrase you want to use. We submit that the facts of this matter are that the employees of Corke have been working excessive overtime on this project in our submission. They have been working - the practice has been that - has resulted in people working up to 20 hours overtime per week, and we say that that has been excessive over the approximate two years that overtime has been worked up to this amount of 20 hours.

PN79

We submit that this overtime has been worked arguably in contravention of clause 8.4 of the certified agreement that binds Corke, the employer Corke, and the employees. I'll hand up an excerpt from that agreement. Now, I understand there is a project agreement, but that doesn't have Corke, the employer, as a party to it.

PN80

THE COMMISSIONER: And this one's got my name on it as well, so they're going well.

PN81

MR BORENSTEIN: You must have been busy.

PN82

THE COMMISSIONER: Yes. Rather I got the short straw.

PN83

MR BORENSTEIN: If I can take you to clause 8.4 which deals with overtime in respect of the employees at Corke. And you will see there in the first sentence it firstly says that it is not compulsory to work overtime. There is an understanding that reasonable overtime is something that they have to consider, but it's subject to the fact that it is not compulsory. And therefore the ultimate determination as agreed by the employer and the employees and the union is with the employee, and that is, they cannot be compelled to work overtime.

PN84

And consistent with that, the third paragraph says that excessive overtime shall not be worked. And it is agree by Corke and the employees and the union that every effort shall be made to eliminate excessive overtime and to create as many employment opportunities as possible. So there's actually obligations on the parties to this agreement to, when determining the issue of overtime, to also try and create as many job opportunities as possible.

PN85

Now, what has occurred here is that we have employees, in our submission, working excessive overtime, but to their credit they're doing it. This job has gone I think over date through no fault of the employees. There has been no industrial action on this site, I think it would be pretty safe to say, and for reasons regarding management, and maybe the reason that Vetco is no longer involved in this project this agreement has gone over time.

PN86

But we now have a situation where the employer is saying we want you to work this excessive overtime, but at the same time we're going to sack you or your colleagues. So we have a situation where the employer is contravening this overtime clause by saying overtime is necessary but we're not going to create as many job opportunities as possible. Now, we submit it's quite lawful and reasonable for the employees to think to themselves that they're working these approximately 20 hours overtime per week, and they're being rewarded for this by their employer making their job less secure in terminating their colleagues or themselves. So in that situation - - -

PN87

THE COMMISSIONER: But that's the nature of projects isn't it? I mean, sooner or later there's no work because the job's completed.

PN88

MR BORENSTEIN: That's right. But why shouldn't the overtime be ramped down before employees are terminated? We say that's the intention of the clause. The intention of the clause is not to say we want you to work more hours while we terminate the workforce, but you keep on as many employees as possible and create as many job opportunities as possible who do the work in the ordinary hours. That's, in our submission, the agreement that the employer Corke and - - -

PN89

THE COMMISSIONER: Just a minute. The agreement that you've handed up to me, why do you say that has application at the site as opposed to the Otway Gas Plant agreement?

PN90

MR BORENSTEIN: Because the Otway Gas Plant agreement does not bind the employer, it's a different party. The employees are not employees of Vetco - I'm not sure who the - - -

PN91

THE COMMISSIONER: Vetco Aibel.

PN92

MR BORENSTEIN: Vetco Aibel, the agreements of Vetco Aibel. If Vetco Aibel employed the employees, certainly we would say that they're bound by that agreement. And site agreements can have some force under our agreements, but this document which is the pattern document continues to apply, and certainly the employees I suppose get the most beneficial terms of both agreements. So certainly we would say that this is the only agreement that binds Corke and binds its employees. And certainly the letters of exchange, not that they seem to have much relevance, but if they're intended to be some form of project agreement, as I understand it the Building and Construction Act actually outlaws non certified project agreements. And Mr Quigley might correct me on that, because I understand that any project agreements that are uncertified are actually unenforceable and void, but that doesn't have too much effect on this matter.

PN93

The union is not trying to be cute here or anything like that. We see this as a dispute between us and Corke, the employer, and a dispute over, how can the overtime be worked in a situation which creates as many job opportunities as possible? Now, we're not ruling out any forms of overtime or anything like that, but the employees have obviously taken the view that they believe this is excessive overtime, and they believe it's going against creating job opportunities.

PN94

THE COMMISSIONER: Is any overtime at all being worked?

PN95

MR BORENSTEIN: I don't believe so. I'm not 100 per cent sure, but I've got no evidence to contradict it. What we have done is gone to the disputes procedure of this document, of the Corke document, and have referred it to the Disputes Board pursuant the disputes procedures, that's clause 12.2.7. I don't think I've put in the excerpt unfortunately. But it provides for the Disputes Board to conciliate it and arbitrate it if the parties ask - sorry, if it's not agreed, and then that decision can be appealed to the Commission. And we see this as clearly a dispute over the application of the agreement, which it clearly is, and we see that this dispute should be resolved through that process, the process that the employer and the employees have agreed to.

PN96

We say there is no change of practice here. The practice here has always been that we've had a certified agreement and the certified agreement is followed. Now, previously overtime has been worked and employment opportunities - every effort has been made to increase employment opportunities. Now, that has somewhat changed, there's a dispute over that, and employees are exercising their right under the EBA. So we would say that the type of situations that my friend is trying to say that this is a change of the way that the work's performed, well, it's not. The work has always been performed in accordance with the agreements, with the certified agreement.

PN97

And to say that an employee who is exercising its right which is expressly provided for in an agreement is taking industrial action, we would say ends in a ridiculous result. It's almost as if an EBA said employees are not required to work over the Christmas break, so they get three weeks break there automatically, and that's in the EBA set in stone, and then the employer comes along and says no, I want you to work that Christmas break, that's a direction to work it. And if the employees say no, I'm not going to work it, I'm going to rely on my EBA, the employer is saying, well, you're putting a ban on the performance of work. I direct you to do it, you're refusing to do it, it's a ban. And the employee says, well, I've got a right under the EBA.

PN98

So we would submit that the definition of industrial action cannot include a situation where an EBA says it's not compulsory to work overtime and the employee chooses not to. Otherwise the clause is - I mean, that provision is useless because an employee has no rights there. But in any event we do want to solve this dispute, and certainly in respect of the Commission's recommendation, that certainly doesn't go as far as what Mr Milne is seeking in this matter, which is the employees work 56 hours, whereas in the recommendation it's 44 hours. So we've got a position where we think it should be 36, the recommendation is 44, and Mr Milne thinks 56. I think there's probably some middle ground there, but hopefully the Disputes Board proceedings will solve that issue for the parties.

PN99

But certainly in respect of trying to argue that an employee, where there's an EBA that says it's not compulsory, deciding not to work overtime, to try and obtain a 496 order for that and have an employee subject to possibly going to jail for refusing to work overtime where his EBA says it's not compulsory, is a large step we say and something the Commission should take into account. And certainly the threshold of appearing to be industrial action that Mr Milne seeks, certainly should be interpreted, that phrase, it appears, should be - I think the threshold should be raised a lot higher than Mr Milne is seeking, especially based on the fact that jail is a potential consequence of these orders.

PN100

So we say the conduct that is occurring does not fall within the definition, and even if it does, we submit that it is authorised or agreed to by the employer of the employees. So it falls within the exception in paragraph 420(1)(e) to the definition of industrial action. And we say the EBA expressly gives an employee - in an agreement between the employer, the employees and the union, the employee is expressly given authorisation or agreement to refuse to work overtime by the fact that it's not compulsory.

PN101

So our submission is that the conduct of the employees, it's not industrial action and an order should not be made in respect of it. And the process of the Disputes Board which is listed for 11 am on Thursday, that's the earliest we could get the hearing I understand, being the long weekend, and that's listed for conciliation at 11 am, and if it doesn't settle on that day we would seek that arbitration occur forthwith after that. But we have advised the Disputes Board that it is an urgent matter, and we have been undergoing negotiations over this previous to this as well.

PN102

So on that basis we say this order should be refused. And in respect of the orders that are sought we would submit that the new clause 2.3, which says this order shall take precedence over any other orders, directions which may be issued by any disputes panel, I don't believe there is - although it's probably an interesting jurisdictional question. I don't know whether the powers under 496 actually enable such an order to be made. 496 refers to an order that the industrial action must stop, and that this is not - this clause is not an order that the industrial action must stop. So we submit that that does not - we submit there would be no jurisdiction for the Commission to make an order that includes that clause.

PN103

And again the definition of reasonable overtime, well, we'd say that should not be the definition of reasonable overtime. The recommendation from the Commission is 44, and we would submit that certainly the Commission also has to take into account the rights under the EBA. And can order be inconsistent with an EBA is another question, because an order requiring people to work 56 hours arguably is in conflict with clause 8.4 of the EBA. So we would also say that there's a lot of problems with that order as well. But certainly we do want to get this dispute solved with the relevant party, which is Corke, and we're happy for Technip to get involved in that as well if need be, and they're more than welcome to come along to the Disputes Board hearing if they wish. So those are the submissions thank you, Commissioner.

PN104

THE COMMISSIONER: All right. Mr Quigley, did you have anything?

PN105

MR QUIGLEY: Yes indeed, Commissioner. It's the ABC Commissioner's view, sir, that industrial action is occurring and that such industrial action is unprotected industrial action. In terms of the relevant jurisdiction of the Commission, section 496 of the Act states that - 496(1), that orders relating to action by federal system employees and employers is the heading, and then it says 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 if that's happening or is threatened, impending or probable, or is being organised, then the Commission must make an order that the industrial action stop, not occur and not be organised.

PN106

And Mr Milne has already indicated that that provision is no longer discretionary as it was under section 127 of the pre reform legislation. And in that regard, Commissioner, I'd just like to draw to your attention a decision of Vice President Watson on that very point in Stolt NYK Australia v Maritime Union of Australia. This concerned a matter of bans by maritime employees as the title of the case suggests. But if I could take the Commission to paragraph 13 of his Honour's decision, you will see there that he says that under section 496 of the Act if it appears to the Commission that industrial action by an employee or employees or by an employer, and so forth, he says the Commission must make an order that the industrial action stop, not occur and not be organised.

PN107

And his Honour goes on to say that this section has been significantly amended, and in particular the discretion under the previous section 127 of the Act has been replaced by a mandatory requirement for the Commission to make an order if it forms the requisite view. And the requisite view is one that if it appears to the Commission that there is industrial action taking place. And his Honour also goes further on in paragraph 14 to indicate that not only has the provisions relating to what was section 127 being changed, but the objects of the Act have also been amended to have regard that the fact that the right to take industrial action in pursuit of a collective agreement is balanced by the fact that unprotected industrial action be able to be dealt with, such as here.

PN108

Now, Commissioner, you don't have before you an application in relation to a dispute matter such as Mr Borenstein's made a point of the view that, I think as recently as yesterday, after this application was made, the union has seen fit to refer to Mr Merriman's panel a dispute between the union and Corke in relation to overtime. The matter that's before the Commission today is of that industrial action that is occurring. It's an application for an order under 496. It's not an application that the Commission should not deal with this because some other body is going to deal with the dispute. That's a separate matter.

PN109

And in any event, the dispute resolution procedure in relation to the agreement that applies on this site, the Otway Gas Plant Construction Project, provides at clause 15.1 that whilst this procedure is being followed work shall continue normally without prejudice to the right of either parties to final settlement of the matter in dispute. Now, Mr Milne has given submissions that the normal work on the site was that employees worked up to 56 hours per week. And it appears that apart from the electrical employees there that is now still the case in relation to the civil employees and the mechanical employees.

PN110

It's certainly not the case that the electrical employees are working what might be called a reasonable amount of overtime or any overtime. So a suggestion that the claim by the union that they were working excessive overtime, the electrical employees have taken that from what was 56, or the hours overtime from their normal hours or base hours up to 56. It has now gone to zero overtime hours. Now, Commissioner, on any measure that falls within the definition of section 420 of the Act in relation to what is industrial action, and that is performing work in a manner different from that which is normally performed.

PN111

There is another provision, and this is one that is of particular interest to the ABC Commissioner, and that is that the employees involved in this matter fall within the purview of the Building and Construction Industry Improvement Act. And within the Act there is a definition of industrial action. It's referred to as a building industrial action. And I was wondering if the Commission has a copy of that Act?

PN112

THE COMMISSIONER: No, I don't.

PN113

MR QUIGLEY: I'll provide a copy to the Commission, and I'll just draw to the Commission's attention the particular provision, if the Commission pleases. It's section 36 and it's on page 28 of the Act, sir, and it's a definition in the Act which mirrors section 420 of the Workplace Relations Act, but it's referred to as building industrial action. And the definition you will see under 36(1)(a) of the Act says that:

PN114

Building industrial action means the performance of building work in a manner different from that in which it is customarily performed.

PN115

And I don't need to take it any further in that. The question of what is building work is the finding in clause, or section 5 of the Act, which is on page 8, Commissioner. And again I don't think there's any argument that the work involved in this matter is building work. And 5(1)(a) for example refers to the construction, alteration, extension, restoration, repair, demolition or dismantling of buildings, structures or works. And I think that quite adequately falls within that.

PN116

There is another element though, and that is in section 37 of what I'll call the BCAA Act, there's a definition of unlawful industrial action. And unlawful industrial action is building industrial action which is industrially motivated, constitutionally connected action and not excluded action. Now, Commissioner, it's not for this Commission in these proceedings to determine whether or not the action by the employees down at the Otway Gas Plant is unlawful industrial action under the BCAA Act.

PN117

THE COMMISSIONER: I was going to ask you, what's the relevance of this Act and what I've got to do?

PN118

MR QUIGLEY: I make that point because that is an area of particular interest to the ABC Commissioner, and that he's concerned where industrial action in the building and construction field is taking place, and that where industrial action as appears to be the case here, that's a matter that the ABC Commissioner would, in the exercise of his functions and responsibilities, conduct an investigation into.

PN119

THE COMMISSIONER: Good luck and God bless him.

PN120

MR QUIGLEY: Yes. Now, sir, the section 496, which is the basis of the application before the Commission today, is a regime that allows a party, and we would submit that Technip is empowered under the Act to bring such an application, and I don't think it's been disputed by the union that Technip isn't so empowered by the Act to do that. What we say in relation to the industrial - - -

PN121

THE COMMISSIONER: Well, I'm not sure that that's right is it?

PN122

MR QUIGLEY: Why is that, Commissioner?

PN123

THE COMMISSIONER: Well, Mr Borenstein was putting to me that in fact there's an agreement in place between Corke and themselves which is relevant, and that it's in relation to that that I should come to a view about the matter that's before me. What's being argued by Mr Milne is that, as I understand it, that Technip has subcontracted to Corke to perform some work in relation to all of this.

PN124

MR QUIGLEY: Yes.

PN125

THE COMMISSIONER: At the end of day, if I've got to make a decision in relation to all this matter, I've actually got to address that issue as to what's the relevant agreement and how it should be applied, and whether or not the application that's made is relevant in relation to the people that Mr Borenstein is representing. I'm going to have to give some thought to that.

PN126

MR QUIGLEY: Yes. But my point, Commissioner, is that it hasn't been argued that Technip isn't empowered to make the application.

PN127

THE COMMISSIONER: To make an application, sorry, yes, that's right.

PN128

MR QUIGLEY: But, Commissioner, the point as to what is a relevant industrial instrument for these employees, I don't know that we've been helped by the expurgated version of the Corke certified agreement. Mr Borenstein has indicated that there is provision in that agreement for project agreements to also apply, and they aren't in that part of the agreement that was provided to the Commission. Now, the other point is that, as Mr Milne indicated, the parties by agreement with all of the unions covering the employees down there have applied the Vetco agreement and have also by exchange of letters between the parties observed certain arrangements.

PN129

Now, in terms of the definition of industrial action, that refers to work that is different from that which is normally performed. That's the test that the Commission has to meet. And what we would say is that you don't need to go any further than if it appears to you that industrial action is happening, then you're obliged under section 496 to make the order, or to make an order at least that industrial action stop. Now, Commissioner, the point about whether a refusal to work overtime is industrial action is I think a question that the Commission would need to address. And in that regard I'd commend to you a decision of Goldberg J of the Federal Court, where he dealt with this very question about overtime and industrial action.

PN130

Just to save you - I think in fact I've highlighted in particular on page 7, Commissioner, at paragraph 11. His Honour said:

PN131

Overtime is a common and frequent feature of employment in the building and construction industry.

PN132

And in the particular case that he was dealing with he referred to an award and various certified agreements which he said did not provide for a minimum amount of overtime to be worked. And then later in paragraph 11, in fact the closing sentences of paragraph 11 on page 8, his Honour said:

PN133

It was not contested by the respondents that working overtime is a fact of life within the building and construction industry and a common and frequent feature of employment in it.

PN134

Now, I don't ask the Commission to take any more notice than that of what Goldberg J said, but to indicate that the facts as already been presented to the Commission in this case indicate that up until 11 September this year, or at least 10 September this year, regular overtime was a feature of the work of all of the employees on that site. Now, the fact that the electrical employees have decided to work no overtime whatsoever, is, in our submission, a clear indication that they are working in a manner different from that which would normally apply, and in our view indicates that it is industrial action as defined in section 420 of the Act.

PN135

And there are also decisions of this Commission that deal with the question of overtime and industrial action. And the one I want to bring to the Commission's attention was in fact a decision of Munro J, which I'm just trying to locate, Commissioner. But perhaps I won't - if the Commission would just bear with me for a moment. I'd just like to bring this particular decision to the Commission's attention if I can. It's a decision of Munro J of 28 June 1989. Now, the point about this particular decision, Commissioner, is that it was a dispute in the civil air operations area, and the particular industrial instrument that applied there had an exclusion of overtime as industrial action, or a refusal to work overtime as industrial action. And Munro J in the particular circumstances of that case thought that it was inappropriate to have such an exclusion and granted an application to insert in the definition of industrial action a refusal to work reasonable overtime.

PN136

And the point I draw from those, Commissioner, is that it's been a long standing practice that a refusal to work overtime is regarded as industrial action. In this particular case there's a refusal to work overtime. In fact there's been a refusal to work any overtime on the part of the electrical tradespersons. We submit that the Commission can therefore be satisfied that it appears that industrial action is taking place, and that in those circumstances the Commission must make an order that that industrial action stop. If it pleases.

PN137

THE COMMISSIONER: Mr Milne, anything further you want to add?

PN138

MR MILNE: Just very briefly, Commissioner, just to reinforce what I've already said and to take some of the points of what Mr Borenstein has said. The facts of this matter are that the 56 hours a week was agreed to by all persons working on the site including the electricians. The overtime is not excessive, it cannot be seen to be excessive. All other unions are currently working 56, and to the best of my knowledge most of the electrical people want to work the 56 hours, and certainly that's the indication to me.

PN139

Now, the overtime is not compulsory. People do work overtime, you know, they are required to work a reasonable amount of overtime. That's what the order I'm seeking says, a reasonable amount of overtime. But then it goes further to define the overtime as being 56 hours, simply because that was the agreed position and that was the customary practice of the employees on the site up until
11 September. Now, to take Mr Borenstein's point of job opportunities, the agreement all the way through in whatever shape or form, whether it be by the certified agreement for Vetco or the exchange of letters, or in fact the customary practice on the site, has been that they will work overtime. It's been agreed from day one, and they will work.

PN140

So for the ETU now to say the employees have exercised their rights not to work overtime because it creates more job opportunities, and as the Commission quite rightly pointed out, and as of what I've said before, this is a feature of the construction industry and it's not unusual for overtime to be worked right up till the day that the project closes, right up to it. And the site and its terms and conditions have been formulated and agreed to on that basis, that it will be, the manning levels will be such at any given time, but that's taken in account of the overtime being worked.

PN141

So it's a bit rich now to say that the guys have decided that they're not going to work overtime. They've been doing it. Now, reasonable amount of overtime is required under all of the awards that are applicable if there had not been an agreement, under the Vetco Aibel site agreement, and indeed under the agreement that Mr Borenstein is talking about, a reasonable amount. What we are saying is, 56 hours is a reasonable amount because it's the customary method of working on that site.

PN142

Now, the interesting point in Mr Borenstein's submissions to you were that he does not contest that there is - I think his words were, he has no evidence to the contrary that there is an overtime ban on or that overtime is not being worked. Now, what we say to that is that it is a fact, it's not contested that overtime is not being worked. The overtime is required to be worked, so therefore it is industrial action in the definition. Insofar as the Disputes Panel, we put in our amendment specifically to address that issue, but this application before you, Commissioner, is an application under the Act. And what we're asking you to do is just simply apply the terms of the Act as they currently stand.

PN143

Now, that must take precedence over any decision from the Disputes Panel. You are not restrained by what might come out the Disputes Panel. Indeed we would say any order that you issue would take precedence over, indeed, any other decision of the Disputes Panel or any other tribunal that may be or may not be authorised by a certified agreement.

PN144

THE COMMISSIONER: I might have trouble with the ABCC, but anyway I'm not sure about that.

PN145

MR MILNE: Well, that's a statutory body and perhaps has to be treated differently, Commissioner. But I won't get into that. But the facts are that I think all we've done is clarified the position of precedence, over which takes precedence over the other. The employees are not exercising your right not to work overtime because they have agreed the union who acts on their behalf and the organisers and the delegates have signed off on the 56 hours, that's it, you know. You can't - it's like being half pregnant or something. You can't have an agreement and terms of conditions. You either are working to them or you're not.

PN146

You simply cannot pluck and choose out of an agreement or the practice what you wish to happen or what at any time might suit you. We are simply applying the rules. And indeed that's what the order seeks, is simply to reinstate the custom and practice and the way the work is customarily performed on that site. Insofar as section 124(1)(e), the exemption that Mr Borenstein has raised, well, I don't believe that you're rights to deal with our, that is, Technip's application, are constrained by section 421.

PN147

As I understand Mr Borenstein's submissions, he was saying that it's not compulsory to work overtime. No one is saying - compulsory and reasonable overtime are two different things. It may not be compulsory under those agreements, but there still is a requirement under every one of the agreements or the awards to work a reasonable amount of overtime. Now, one questions why the matter has been as late, as I understand it, yesterday notified to the Disputes Board by the ETU if this has been ongoing since 11 September.

PN148

Now, we would say to you, Commissioner, that that is nothing but an attempt to get around and to place a red herring before you in this exercise - in our application. If the ETU had have wished it to be dealt with through the Disputes Panel with Corke they could have done so six weeks ago. It was lodged, as I understand it, and indeed we're not privy to that, but I happened to see a copy of the application on someone's desk, that's how I became aware of it. But at the end of the day, the application was made yesterday.

PN149

THE COMMISSIONER: It might have been attached to Brendan Fevola's video clip.

PN150

MR MILNE: Well, if it is I'll go to Norway and find out, wherever he is. But, Commissioner, we're saying you should take no account of that matter before that industrial tribunal. And indeed that industrial tribunal is one that we don't recognise, Technip, and don't appear before. This is our application. Now, again just to reiterate, our new clause 2.3 simply seeks to clarify the position. Our other clause 3 - - -

PN151

THE COMMISSIONER: 3.2.3?

PN152

MR MILNE: That's the one. Just simply seeks to define what we think is reasonable. In those circumstances I don't think that anything that Mr Borenstein has put before you today, Commissioner, should prevent you from carrying out what is a requirement under the Act. And insofar as the ABCCs submission to you, we would support that. They're in common with the aspects that we have put to you under the Workplace Relations Act. Thank you, Commissioner.

PN153

THE COMMISSIONER: Well, look, before I determined this matter. There's been a couple of things that have come up in the course of submissions that I'd really like to explore, but I'd prefer to do that in a conference setting. One way or the other I will determine this matter today so that we can all go forward. But there are some aspects I think that might be worth some exploration. Once we've done that, if any of the parties want to put some more formal submissions before I determine the matter, I'll obviously give you the opportunity to do that. But I'm going to adjourn these proceedings into a conference, and I do so now.

<SHORT ADJOURNMENT [11.17AM]
<RESUMED [12.09PM]

PN154

THE COMMISSIONER: I've conducted a series of conferences with the parties in relation to this matter in an endeavour to see if there was some way in which an agreement could be reached short of the Commission issuing the order that has been sought by Technip Oceania Pty Ltd. Unfortunately I was not able to get an agreement that would have prevented me so doing. This is an application made pursuant to section 496(1) of the Act, an application for an order to prevent industrial action. Section 496 indicates that if it appears to the Commission that industrial action by an employee or employees that is not or would not be protected action is happening, is threatened, impending or probable, or being organised, the Commission must make an order that the industrial action stop, not occur and not be organised.

PN155

This section of the Act to some extent mirrors section 127 in the pre reform Act, but is different to the extent that the Commission must make such an order rather than have the discretion as to whether an order should be made or not. I've taken no evidence in relation to this matter, but simply heard submissions from the bar table from Mr Milne on behalf of Technip, from Mr Borenstein from the CEPU, and Mr Quigley from the ABCC. In answer to a question from the Bench Mr Borenstein indicated that he had no evidence to present to the Commission that industrial action was not taking place at the site at Port Campbell involved in this matter, industrial action being defined for these proceedings as alleged overtime bans.

PN156

I'm satisfied based on the submissions that have been put to me that since
11 September of this year, differently to what was the situation prior to that date, overtime has not been worked by members of the CEPU, and certainly not in the way in which it was being worked earlier in the year. The Commission has some knowledge of the construction of the Otway Gas Plant and understands what the nature of the work is that is involved, and is aware of the agreements that have been in place which deal with how hours are to be worked and the basis upon which overtime has been worked.

PN157

I am satisfied that the practice was, until 11 September, that employees had made themselves available to work the overtime, and it was part of the expectation which flowed from the agreements which have been negotiated which attach to this site. Because the Commission only has to determine whether or not it appears industrial action is taking place, I am bound to come to that conclusion. As I said earlier, I've got no evidence that that's the case, but it appears to be the case, and on that basis the Commission must make an order.

PN158

Mr Milne on behalf of the employer in this matter attached to the application a draft order under subsection 496(4) of the Act, and that draft order was the subject of discussions and submissions that were put formally to the Commission in relation to that matter. Mr Milne also presented during the proceedings an amendment to the draft order to insert a new clause 2.3 into the order and a new clause 3.2.3. I do not propose to insert the proposed new clause 2.3. The Commission is only obliged under the terms of its Act to issue orders which it thinks appropriate or which meet the criteria which is set out in the statute. And as to whether that order takes precedence over any other orders or directions, whatever, that is a matter for another place and another time, and not for the Commission to be expressing a view about in my view. The proposed new clause 3.2.3 reads as follows:

PN159

To avoid confusion, reasonable overtime shall be deemed to be the extension of the ordinary weekly hours of work (36) as required by the employer up to a maximum of 56 hours, with any further extension to overtime hours to be by agreement between the employer and the employees directly concerned.

PN160

There was some debate in the proceedings as to whether agreements cited by Mr Borenstein and reference to earlier agreements which cited 44 hours as the maximum hours to which CEPU employees had agreed ought to be the appropriate reference point in relation to this proposed amendment. Having considered the arguments that have been put I'm satisfied based on the way that the work has been performed at the Port Campbell site, and the history of the whole nature of this project, that 56 hours was an agreed amount of hours that was worked at the site and is appropriate for inclusion in this amended clause. I propose to include the clause in the draft order. I also propose to add a new clause 3.2.4 following on from that inserted clause, which will read as follows:

PN161

In the event that individuals find themselves in a situation privately which results in them deciding not to work the agreed overtime, and that circumstance is disputed by the employer, that matter shall be referred to the Commission as constituted in these proceedings for resolution.

PN162

My understanding of that that means is that if an individual employee has a legitimate reason which will prevent him not working - he or she I should say - not working what had previously been agreed overtime, such as a family matter or a bereavement or the like, the normal course of events that occur in one's normal working life, then the employer in those circumstances would not hold people to what might have been previously agreed.

PN163

On the other hand this should not be seen as a vehicle by which groups of employees could decide together to utilise that clause to avoid overtime obligations which they have committed to as part of their agreement. Unless there's anything said to the contrary when I finish this statement, that is my assumption as to how this clause will be dealt with. The order will come into effect from Tuesday 7 November this year at 7 am and shall continue for a period of six months or until the completion of the project, whichever event occurs first. Mr Borenstein, in terms of the explanation I was looking for, or confirmation?

PN164

MR BORENSTEIN: Yes. No, we agree with the statement as the Commission said, and the added sections to the order, and we understand it to operate in exactly the same way as the Commission explained. Just on some other clauses in the order, and I haven't mentioned them earlier, but in the break I read through them, and there's just some clauses that seem to be irrelevant or go a bit further than necessary, which don't affect the agreement, and they're just clause 3.2.1(c), is something that is totally unrelated to these circumstances. I assume it's just been in there as a part of precedent, but I would have thought it would be - it certainly doesn't relate to any industrial action that's been alleged in this matter.

PN165

And 3.2.2(b) which talks about not employees, or the employee here, but actually other contractors on the site, which just doesn't have - no allegation has been raised as to any form of industrial action being encouraged by contractors on the site. So they just seem superfluous, and we ask that they be deleted. And just lastly, 4.1.1 says - it has the exclusion that comes from the Act, and it doesn't actually mirror that. It actually has agreed to in writing, which section 421(e) doesn't actually have in writing. So I just ask that those words, in writing, be deleted as well just so it mirrors what the Act actually says.

PN166

THE COMMISSIONER: All right, thank you. It's probably an area I should have canvassed with you earlier.

PN167

MR BORENSTEIN: I'm sorry about that.

PN168

THE COMMISSIONER: No, that's all right, that's my fault. Mr Milne, in terms of the additional clause which I've proposed, your understanding of what I'm putting, you're comfortable with?

PN169

MR MILNE: Yes, I'm comfortable with that, and I think your explanation of it satisfies our needs.

PN170

THE COMMISSIONER: In relation to the other two matters that's now just been raised by Mr Borenstein, do you have a view about that/

PN171

MR MILNE: Yes, I do, Commissioner, and the view is that they should remain in. And the reason for that is, that if there is nothing occurring - and this has been dealt with by the Commission before, and it's in - I don't need to start putting further submissions, but there is actually - and indeed now that I've filed my stuff away I'm not quite sure whether I can find it, but I think it is. Yes, there is - just bear with me for a moment. There is a matter which was a Commission decision in - it's actually Curragh Queensland Mining Limited, the print number is C0889 is the case number, the print number is M7729. I do have copies of it which I'll hand up. But that actually is a decision that effectively says that if it has no effect then there is no reason why it shouldn't be in there.

PN172

THE COMMISSIONER: Are you watching too much Irish football?

PN173

MR MILNE: What it says, and I'll see if I can find the part.

PN174

THE COMMISSIONER: Look, can I cut you short. The issue that's been before the Commission today is the alleged overtime ban. I have indicated I am satisfied that it appears to me people, if they have not got an overtime ban on, have certainly not been working overtime in the way that they were. You were seeking to address that. The points that have been raised by Mr Borenstein go to the question of, one, refusal or failure to deliver or accept materials at the site or locations within the site. That doesn't seem to be relevant to what I was dealing with today.

PN175

MR MILNE: Yes, and I'm happy with that one to be deleted.

PN176

THE COMMISSIONER: So that can go out, right. The other one was 3.2.1(b), the imposition of strikes, bans, limitations, restrictions or the performance or acceptance of work, et cetera, and whilst there's a reference to overtime there - - -

PN177

MR BORENSTEIN: No, that's 3.2.2(b), which I'm happy for (b) to stay in there.

PN178

THE COMMISSIONER: I'm sorry, right, 3.2.2(b).

PN179

MR BORENSTEIN: So that deals with contractors, not the actual employer.

PN180

THE COMMISSIONER: So that would be other individuals outside of the circumstances of this application.

PN181

MR MILNE: Yes. That was put in for a specific reason, but I won't press for that part in the order, Commissioner.

PN182

THE COMMISSIONER: Well, there's been no submissions in relation to all of that. So 3.2.2(b) can also come out.

PN183

MR MILNE: Yes.

PN184

THE COMMISSIONER: The other issue that was raised was the authorisation or agreed to in writing, 4.1.1 I think you raised, was it, Mr Borenstein?

PN185

MR BORENSTEIN: That's correct, Commissioner, just so it reflects what it says in section 421(e).

PN186

THE COMMISSIONER: Look, I'll check that. And it seems to me that it would be appropriate that if the statute in fact contains some wording, it's more than appropriate that that order be used.

PN187

MR MILNE: I don't have any objection, Commissioner.

PN188

THE COMMISSIONER: Okay, so "in writing" can come out. Subject to those amendments as I've indicated we will issue the order in the terms sought by the parties. The Commission adjourns on that basis.

<ADJOURNED INDEFINITELY [12.26PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #M1 LETTER FROM CORKE RE OVERTIME BANS PN36
EXHIBIT #M2 LETTER OF AGREEMENT DATED 19/06/2006 PN47