C2006/2003, Transcript of Proceedings [2006] AIRCTrans 351 (16 March 2006)

TRANSCRIPT OF PROCEEDINGS

---

Workplace Relations Act 1996 14359-1

COMMISSIONER MANSFIELD

C2006/2003

THIESS PTY LTD
AND
AUSTRALIAN RAIL, TRAM AND BUS INDUSTRY UNION CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION- CONSTRUCTION AND GENERAL DIVISION, VICTORIAN FEDFA DIVISIONAL BRANCH
s.127(2) - Appln to stop or prevent industrial action
(C2006/2003)

MELBOURNE

5.08PM, FRIDAY, 24 FEBRUARY 2006

Hearing continuing

PN1

MR F PARRY: I seek leave to appear as counsel for the applicant, Thiess, with me MR G GOSLING of Thiess and MS K KAMSKI of Palmers, my instructing solicitors.

PN2

MS E WALTERS: I appear for the CFMEU.

PN3

MR R BUNTING: I announce an intervention by the ABC Commissioner. I hope notice of that intervention may have reached you?

PN4

THE COMMISSIONER: It has.

PN5

MR BUNTING: I seek leave, if necessary, as solicitor to appear on behalf of the ABC Commissioner.

PN6

THE COMMISSIONER: Thank you, Mr Bunting. Any objection to Mr Bunting seeking leave to appear?

PN7

MS WALTERS: Yes, we do oppose that application. We say for a matter of record that the notice of intention to intervene and the reasons for that intervention need to be provided to the Commission in the circumstances. If the Commission pleases, given - and maybe this is something that we could address on the basis that we reserve our rights to the notice to intervene at a point down the track. We have some issues, I think, as a matter of procedure that need to be dealt with first. Perhaps it may be better that we oppose that notice of intervention and both leaves sought in accordance with the Workplace Relations Act, but that be addressed if necessary following procedural issues that we'd seek to raise.

PN8

THE COMMISSIONER: Thank you, Ms Walters. I will reserve my decision on your application to intervene, Mr Bunting. We will deal with that in due course if necessary.

PN9

MR BUNTING: Thank you, sir.

PN10

THE COMMISSIONER: Now, Mr Parry, you are appearing on behalf of the applicant Thiess. Perhaps you could outline the basis of the application and what Thiess is seeking from the Commission this afternoon? Before I seek that you do that, Ms Walters, how much of a problem are we going to have here this afternoon? Being it's a Friday afternoon and everybody wishes to get home and have a meal with their families, do we have a problem, or this a matter which is capable of being resolved by intelligent discussion between the parties?

PN11

MS WALTERS: If the Commission pleases, I might raise those procedural issues to start with. If the Commission pleases, I received what is an application pursuant to section 285G of the Act, and that's in relation, I understand, to the section 99, on the basis of the section 99 application to have the permits revoked. I'll deal simply with Mr Wilson as Mr McPherson who is an official of the Rail, Tram and Bus Union - are not with us currently. I have not received - - -

PN12

THE COMMISSIONER: Where might they be, Ms Walters?

PN13

MS WALTERS: If the Commission pleases, I have enough trouble with my own officials.

PN14

THE COMMISSIONER: I can have a rough guess.

PN15

MS WALTERS: I have no knowledge of the whereabouts of the Rail, Tram and Bus Union, but what I would like to add further and of a more serious note is that I have not received a section 127 application. I might indicate at this point that I have been unable to receive any instructions in relation to the material which I have been provided with, which is the - - -

PN16

THE COMMISSIONER: What do you have, Ms Walters?

PN17

MS WALTERS: I have the section 99 application which is the basis for the application to have the permits revoked.

PN18

THE COMMISSIONER: Well, there was a section 127 notification sent to the state secretary, the national secretary, of the CFMEU; both the FEDFA divisional branch, the Victorian Builder Union's divisional branch, and that was dispatched at 3.03 pm this afternoon.

PN19

MS WALTERS: If the Commission pleases, certainly the state division of the CFMEU, Construction and General division, has not received that listing. The manner in which I received notification of this hearing at about 4.25 this afternoon was in fact from the national office Mining division, that contacted me to say they had received that application. So - - -

PN20

THE COMMISSIONER: Is your fax number 9341 3427 by any chance?

PN21

MS WALTERS: Yes, it is. And I can - in relation to that, I'm not sure what's happened. I have in fact been in the office this afternoon and have been quite close to that fax machine on that number. I'm happy to swear evidence to the fact that we have not received that listing by way of - - -

PN22

THE COMMISSIONER: I do have an acknowledgement here that says it was transmitted successfully.

PN23

MS WALTERS: I am unaware of what has happened. It may be in fact that it has been received and that it has been gathered up as someone has collected other materials from the fax machine, that may be the case, but certainly we received notice at 4.25. I am obviously unable to make any submissions in relation to that on behalf of the Rail, Tram and Bus Union, in that I have not been able to contact them. In any event, what we would submit is that given my lack of knowledge of the actual circumstances of why we're here today at 5 o'clock on Friday, I have no knowledge - - -

PN24

THE COMMISSIONER: So the answer to my question is that you're not in a position to answer?

PN25

MS WALTERS: Well, no, but I would hope that in fact we would be able to, through some intelligent discussions, get to the bottom of that and may in fact be able to come to some resolution by way of conciliation. In fact, if that was where the Commission was looking at going in relation to having some decent discussions about what's happening, I'm sure that if I could be provided with that information - - -

PN26

THE COMMISSIONER: Well, let me turn to Mr Parry, then. Mr Parry, would you mind outlining the basis of the application, please, and what you are seeking?

PN27

MR PARRY: Yes, Commissioner. Firstly, there are two applications that have been filed and served. Once concerns a section 99 and 286G of the Act. The second concerns 127(2). Now, we don't press here today the section 99. We are only concerned with stopping the industrial action that is going to take place and commence at 1 am tonight. Accordingly, perhaps the other application can be adjourned to a date to be fixed at some appropriate time.

PN28

THE COMMISSIONER: Yes.

PN29

MR PARRY: Now, this is an urgent application and that's why we're here at 5 o'clock on Friday. It is urgent for these reasons; that is, there is a project called the Craigieburn Rail Project, where my client, Thiess, has been given a contract to do major works on the track and related works at and around Craigieburn. In broad, the project involves providing new metropolitan electrified train services from Broadmeadows to Craigieburn. There is 10 kilometres and it involves realignment and upgrading of the broad gauge tracks, the construction of wiring and signalling, electrical substations and so forth. I think that's set out and really I have taken the Commission to the section 99 notification in paragraph 2 which sets that out.

PN30

Now, the project is to commence, in substance, tonight. Thiess has three contractors engaged by it. They are Rail Safety Solutions, Online, and there are more detailed names, of course - - -

PN31

THE COMMISSIONER: Online Rail and Safe Working Pty Ltd.

PN32

MR PARRY: Yes. And MainCo. Thiess does not employ; those three contractors. Those three contractors were and are engaged to commence work at 1 am tomorrow morning. They are to work over the weekend until 3 am on Monday morning. If this weekend is lost, then the work won't be performed for seven weeks because of the Commonwealth Games and requirements that train services not be interrupted. That would mean this necessary work simply wouldn't be done if the industrial action occurs for that seven-week period. This work has been scheduled and worked out, as I understand it, for a few weeks and there have been some preliminary discussions a couple of weeks ago with the RTBU and the CFMEU.

PN33

This morning, the CFMEU and the RTBU came on site and in effect advised employees of MainCo to leave the site and not perform the work. They also advised that work would not be performed by the other two contractors.

PN34

THE COMMISSIONER: Did the workers respond to that advice and leave the site, Mr Parry?

PN35

MR PARRY: The MainCo workers left the site, yes. Now we, being Thiess, are in a position where there have been some discussions today with the union and it's fairly clear from those discussions that this constitutes industrial action and is intended to put pressure on Thiess. It is intended to put pressure on the subcontractors and the present position is that unless the Commission makes what, in the circumstances will necessarily have to be an interim order, we apprehend that the employees will not attend and that the work will not take place and therefore the seven-week delay will consequently follow.

PN36

THE COMMISSIONER: This is a project, Mr Parry, which I noticed from your documentation will proceed over a course of 72 weeks. I take it this is one weekend of that 72-week period?

PN37

MR PARRY: Yes, that's so.

PN38

THE COMMISSIONER: I notice also that the shutdown costs $85,000?

PN39

MR PARRY: Yes.

PN40

THE COMMISSIONER: So this weekend, whoever is liable for the $85,000 will have to pay it?

PN41

MR PARRY: That's so.

PN42

THE COMMISSIONER: Yes. Thank you.

PN43

MR PARRY: Now, we are here obviously as a matter of urgency. We would be seeking an interim order today to operate for the weekend and for the matter to be brought back at the discretion of the Commission next week, but it's important that the work be performed for the reasons I have outlined and that's why we're here at 5 o'clock, or 5.30 now, on a Friday. So that is an outline of what we are seeking.

PN44

THE COMMISSIONER: Good. Now, Mr Parry, how practical is it, if an order is issued, for work to actually occur over the weekend?

PN45

MR PARRY: Well, my instructions are that the union have been speaking to the contractors at around 5 o'clock in any event, so we apprehend that if the employees are advised that there are orders in respect of the work, we apprehend the orders will be useful and that they will result in work being -- work in place.

PN46

THE COMMISSIONER: If orders are issued, the employer will actually carry through with it? Because I have had occasions in past times when I've issued an order and the employer, for one reason or another, decides not to proceed. So the employer is seeking to act on the order if it is issued?

PN47

MR PARRY: Well, very much so. There are going to be a number of other shutdowns. This is the first one, but there will be other shutdowns and this is a very important stage in the project. Now, we will, if we receive the order - my instructions are to serve it and deliver it, and if it's not obeyed, we will seek to enforce it.

PN48

THE COMMISSIONER: Good. Thank you. According to the documentation that has been given to the Commission, the issue seems to be that Thiess has been requested to provide information about the identity of subcontractors. The information provided expresses the view that if that information was provided, it would be in breach of the code of conduct, is it?

PN49

MR PARRY: Yes. Yes, Commissioner.

PN50

THE COMMISSIONER: Which is the Federal Government Construction Code?

PN51

MR PARRY: That's so.

PN52

THE COMMISSIONER: Yes. As a consequence of Thiess being of the view that the provision of that information would be in breach of the code, Thiess has refused to provide that information?

PN53

MR PARRY: That's so.

PN54

THE COMMISSIONER: Yes.

PN55

MR PARRY: I do indicate that the CFMEU are also seeking the making of an agreement with Thiess as well, so that doesn't appear, I think, in paragraph 10, but the CFMEU are also seeking Thiess agree to certain matters.

PN56

THE COMMISSIONER: Paragraph 10 says:

PN57

The industrial action is in conjunction with Thiess's refusal to comply with requests by the CFMEU and the RTBU for the provision of certain information.

PN58

MR PARRY: Yes. That's so.

PN59

THE COMMISSIONER: So both of those unions are seeking information?

PN60

MR PARRY: That's so.

PN61

THE COMMISSIONER: And Thiess has refused both unions?

PN62

MR PARRY: That's so. There is the further matter of the CFMEU seeking the making of an agreement.

PN63

THE COMMISSIONER: An enterprise bargaining agreement, I assume?

PN64

MR PARRY: Yes.

PN65

THE COMMISSIONER: Yes. Is Thiess proceeding to discuss that matter with the union?

PN66

MR PARRY: Well, at present the subcontractors have their own certified agreements with their employees.

PN67

THE COMMISSIONER: Is it the intention of the union, to your knowledge, to have the Thiess agreement override any other agreement, or attempt to override?

PN68

MR PARRY: No.

PN69

THE COMMISSIONER: No. Good. Thank you. Now, Mr Parry, do you wish to lead any evidence on these matters or do you want me to turn to Ms Walters and see what she wants to say about all this?

PN70

MR PARRY: I propose calling Mr Gosling at a time convenient to the Commission to simply outline the sorts of matters I have described to the Commission.

PN71

THE COMMISSIONER: Yes. It might be best, Ms Walters, if Mr Gosling
was - no? You'd prefer to be heard now?

PN72

MS WALTERS: Yes.

PN73

THE COMMISSIONER: Good. Ms Walters?

PN74

MS WALTERS: In the first instance, on the basis that the application in terms of the 127 application, the applicant intends to proceed. I would request that I'm provided with a copy of that application because I still don't have a copy of that application.

PN75

THE COMMISSIONER: The 127?

PN76

MS WALTERS: Yes, please.

PN77

THE COMMISSIONER: Yes. Could we very quickly provide that to Ms Walters?

PN78

MS WALTERS: Secondly, prior to going to any evidence - - -

PN79

THE COMMISSIONER: By the way, Ms Walters, I haven't yet seen a draft order that is being sought, but I'm sure there'll be one in the court somewhere.

PN80

MS WALTERS: If I can, just in terms of that which has been raised thus far, and obviously I speak solely on behalf of the CFMEU, I do note in the material that's been provided in relation to the 99, and I understand that that's not pressed at this point in time, but in relation to the CFMEU, it appears that the sole issue there is what is alleged to be the entry onto site in contravention of the Act. If you look at paragraph 6 of the section 99, on the submission - although in relation to a separate but clearly connected matter - that Mr Parry in fact has also referred to this application. On the submission of the applicant, it's clear that Mr Wilson who is the organiser of the CFMEU, it is not said that he has made any - or alleged that he has directed any form of industrial action at all, and that may be different in the section 127 application.

PN81

Should the applicant intend to proceed and lead evidence at this point in time without the benefit of, what we would submit, some conciliation in order to expedite resolution of this matter, we clearly make the submission to the Commission at this point in time that we would see a resolution to this matter best dealt with by way of, even if it's a short conference, but a conference in order to expedite that. So it may be in fact that the allegations raised against the RTBU are of a different nature and it appears on the section 99 application that they clearly are of a different nature in relation to the RTBU. We submit the CFMEU is clearly not engaging in any industrial action at this point in time and I say that also without the benefit of the section 127 application, but I have no knowledge of any direction by an official of the CFMEU to engage in in industrial material, and on the own material of the applicant, as I see it, it's simply been - - -

PN82

THE COMMISSIONER: We haven't yet heard from Mr Gosling and he may have some information which he has had evidence of some time today which could clarify just how much involvement the CFMEU has in the proposed industrial action as alleged by the applicant. Ms Walters, are you seeking to have a short opportunity for some conciliation?

PN83

MS WALTERS: Yes, Commissioner.

PN84

THE COMMISSIONER: Good. Let's have a break and we will go into conciliation for a few minutes to see whether there's an opportunity to resolve this matter in a sensible way, rather than having to contemplate the issuing of orders. So we'll go into conference. Could I ask any person in the court who is not representing either the CFMEU or Thiess to leave? Now, this probably includes you, Mr Bunting. I don't want you to give me a problem on this. You won't be away for very long.

PN85

MR BUNTING: Could I just take instructions for a moment?

PN86

THE COMMISSIONER: Yes.

PN87

MR BUNTING: Yes, Commissioner. We won't cause you any trouble.

PN88

THE COMMISSIONER: Good. Thank you very much.

PN89

MR BUNTING: But might I say - - -

PN90

THE COMMISSIONER: I would certainly welcome you back in, in a few minutes.

PN91

MR BUNTING: Thank you. Might I say that we do that because you have asked us and because of the practicalities of the situation. It is the view of the ABC Commissioner and it would be my submission, if it were necessary to make it, that having intervened - and we say there is a right of intervention - then we are in effect a party.

PN92

THE COMMISSIONER: Yes. I understand your position, Mr Bunting, but just for the sake of this short conciliation, we'll see if we can - - -

PN93

MR BUNTING: Yes. We're happy to cooperate.

PN94

THE COMMISSIONER: Thank you.

<SHORT ADJOURNMENT [5.32PM]
<RESUMED [5.55PM]

PN95

THE COMMISSIONER: Ms Walters, I understand you are in a position to give an assurance to the Commission in relation to the lack of involvement of the CFMEU in any industrial action that may be taking place involving the Craigieburn Rail Project?

PN96

MS WALTERS: If the Commission pleases, I've sought instructions in relation to this matter following receipt of the application a few minutes ago. I make this statement on record; having sought instructions, I can clearly indicate that the CFMEU has at no stage directed any employee to cease work at the Craigieburn Project in relation to this, and furthermore, give an assurance to the Commission that there is no alleged ban on the performance of work at 1 am tonight.

PN97

THE COMMISSIONER: Which has been instigated by the CFMEU?

PN98

MS WALTERS: Sorry, which has been instigated by the CFMEU, that's correct.

PN99

THE COMMISSIONER: Good. Thank you, Ms Walters. Mr Parry, does that satisfy you?

PN100

MR PARRY: Yes. I assume when Ms Walters said there's no alleged ban, it wasn't a cute use of words and she was saying there is no ban?

PN101

THE COMMISSIONER: Yes. It certainly wasn't cute, Mr Parry, I don't think.

PN102

MR PARRY: No.

PN103

THE COMMISSIONER: Good. Yes. Ms Walters, with that assurance, we don't need to keep you any longer. You are a representative of the CFMEU and you have done what you can do to assist us. So thank you very much. You can go, and you might tell your - I won't describe Mr Bunting as your friend, but Mr Bunting to come in.

PN104

MS WALTERS: Yes, Commissioner. Thank you very much.

OFF THE RECORD

PN105

THE COMMISSIONER: We're back on the record, and we should record that Mr Parry just passed up an exhibit which has been labelled as P1.

EXHIBIT #P1 - DOCUMENT TENDERED BY MR PARRY

PN106

THE COMMISSIONER: Are you okay now? Good. Mr Parry?

PN107

MR PARRY: Commissioner, earlier I outlined that we do want to prosecute this application. We do seek that there be an interim order issued and the Commission said they hadn't seen a draft order yet. I have a draft order which we prepared. If I could hand up a copy of that to the Commission?

EXHIBIT #P2 - DRAFT ORDER

PN108

THE COMMISSIONER: It would be an order against the RTBU, I presume, Mr Parry?

PN109

MR PARRY: We would need to amend this by perhaps deleting the CFMEU from the order title in order 1. Also deleting 3.1(a), 3.1(c) and 3.1(f). There would need to be an amendment to 3.2, and I'm assuming a renumbering of 3.1. So that would become 3.1(a) to (d). Clause 5.1, deletion of the reference to CFMEU and also deletion of CFMEU from 5.3, 5.4, 5.5, the deletion of 5.6 in total, the deletion of CFMEU from clause 6 and the deletion of CFMEU from clause 7. Yes. In 5.7, the letter that we would seek the Commission order be sent has the title of the order and that refers to the CFMEU which would need deletion.

PN110

THE COMMISSIONER: Yes.

PN111

MR PARRY: Now, subject to those amendments, that is the order we would be seeking the Commission to issue at the completion of these proceedings.

PN112

THE COMMISSIONER: How would it be intended, Mr Parry, that this order would be made known to the union and anybody else affected by it? Is it practicable to do so, that's my question basically?

PN113

MR PARRY: Well firstly, there would be service of the order by facsimile and email transmission per order 7.

PN114

THE COMMISSIONER: Yes, but that would probably go to an office which is vacant.

PN115

MR PARRY: It may well. We would be making our own efforts to distribute this and draw it to the attention of our contractors and their employees, and we would be advising them of the obligations that exist on the RTBU. We didn't make the timeframe, Commissioner. We would like to have been here much earlier, indeed yesterday, but unfortunately it's 6 o'clock on Friday and we're in that position.

PN116

THE COMMISSIONER: Yes. Understood. Well, let's proceed with some speed, Mr Parry.

PN117

MR PARRY: Yes. If the Commission pleases, I would call Graham Gosling.

PN118

THE COMMISSIONER: Thank you. Are you seeking an order that will remain in force for six months, Mr Parry, as well?

PN119

MR PARRY: No. I think I hadn't - - -

PN120

THE COMMISSIONER: Maybe it should remain in force for two days, three days, at this stage. You can come back to that.

PN121

MR PARRY: Yes, I think six months would be a bit generous. Three days is what we're really looking for, but - - -

PN122

THE COMMISSIONER: Yes, of course, and then next week we can deal with it more fully perhaps.

PN123

MR PARRY: Yes. I think what I would be asking for ultimately is a one-week order and assuming the matter be brought back before the Commission next week.

PN124

THE COMMISSIONER: Yes. If it's convenient to parties, it will be back on Monday.

PN125

MR PARRY: Yes. That's convenient for me. I don't know about whether it's convenient to my clients, but anyway.

<GRAHAM LESLIE GOSLING, SWORN [6.07PM]

PN126

THE COMMISSIONER: Can you repeat your name and address, Mr Gosling, for the record?---Graham Leslie Gosling (address supplied).

PN127

MR PARRY: If the Commission pleases.

<EXAMINATION-IN-CHIEF BY MR PARRY

PN128

MR PARRY: Mr Gosling, where are you employed?---I'm employed as the human resources manager of Thiess Pty Ltd in relation to its Victorian, South Australian, Tasmanian and New Zealand operations.

PN129

Are you aware of the Craigieburn Rail Project?---I am.

PN130

Can you describe that to the Commission?---Yes. The Craigieburn Rail Project is a project awarded to Thiess in approximately mid-November 2005 and involves the electrification of some 10 kilometres of rail line in the northern suburbs of Melbourne and associated with the electrification is the realignment of some of the track works and also the upgrade of two existing rail stations and the construction of a new station at Craigieburn.

PN131

How is Thiess going to perform that contract?---Thiess is the principal contractor. In other words, we've been awarded the contract to carry out all of those works and we have determined at this stage that all of the works will be conducted through subcontracting arrangements with various subcontractors as and when required to meet the program that we've set for completion of the 72-week work program.

PN132

Are contractors to Thiess proposed to commence work this weekend?---They are. There is a shutdown due to start at 1 am tomorrow, though till 3 am on Monday, and involves three contractors of Thiess, one being MainCo, the other being Online Services and the other being Safe Working Solutions. I keep getting that one confused. And the work to be conducted is that Online provide employees who are to carry out works at the direction of Thiess supervision. In this stage, to sever the existing rail lines, move them to create a diversion so to enable future structural work to be undertaken. Safe Working Solution are contracted to provide protection to the workers when working on the rail corridor and MainCo are responsible to the operator, Connex, to give it assurances at the completion of the works that the track is safe to be put back into service and therefore normal rail operations can continue from 3 am on Monday.

**** GRAHAM LESLIE GOSLING XN MR PARRY
PN133

If the Commission pleases, there are three certified agreements that I can provide copies of to the Commission. One is the MainCo Melbourne Certified Agreement 2004 which came into force on 3 November 2004, remains in force until 30 June 2006. There is Safe Working Solutions Pty Ltd Certified Agreement 2001 which as I understand came into force on 9 September 2002, at a nominal expiry date of 1 June 2004, but remains in force. There is an Online Rail Victoria Agreement 2004-07 which came into force on 9 January 2006 and remains in force until 1 June 2007. If I could hand up a copy of those three agreements to the Commission?

PN134

THE COMMISSIONER: Thank you, Mr Parry. Do you need those marked at all, Mr Parry?

PN135

MR PARRY: No, I've described them, Commissioner, unless you seek to mark them.

PN136

THE COMMISSIONER: No. That's fine. Thank you. Obviously each of those agreements has a disputes procedure?

PN137

MR PARRY: Yes.

PN138

Now, the work to be performed this weekend, Mr Gosling, approximately how many employees of each of the contractors are going to be performing that work?
---I'm not sure in terms of the actual numbers. It would be literally a handful of workers in terms of MainCo. I would imagine certifying officers to say that this track is safe to resume operations. I believe in terms of Online, there's approximately six employees to undertake those works and Safe Working Solutions, there is a regulated requirement about safety officers required to provide protection, which I understand is in the order of five employees. I also understand they will be providing safe working protection to other contractors not associated with the Thiess contractors over the weekend as well, so sort of multiple safe-working, protection provided by Safe Working Solutions to ourselves and to those other contractors undertaking their own works.

PN139

THE COMMISSIONER: So what's the approximate total, do you think, Mr Gosling?---I would say six, five, 11, 13.

PN140

Thirteen employees?---Yes.

**** GRAHAM LESLIE GOSLING XN MR PARRY
PN141

MR PARRY: Do you have any general understanding as to whether they are members of a union or not?---We have no direct knowledge as to their union membership. We have worked on the historical coverage based on our experience where they're likely to be members of and it is likely, given the construction activities and rail maintenance activities undertaken by Online, that it's possible they are members of both the CFMEU and/or the RTBU. In terms of MainCo, from my own knowledge, direct knowledge, having been involved in the predecessor to MainCo, that the CFMEU to our knowledge has no industrial relations agreement with MainCo and it's unlikely that they would have members working for them, and similarly with Safe Working Solutions, from our knowledge historically that they do not have an agreement with the CFMEU and they do have one with the RTBU and it is likely they are members, or eligible members, I'm sorry, of the RTBU. But in terms of actual membership, we are unaware of the membership because at this stage we are unaware of the nominated employees to turn up to work at 1 o'clock tomorrow morning. That is a matter for the company to provide those workers for the performance of this work. They are companies that have more employees than merely the ones that we require and it's a matter for them to provide us the appropriate people to conduct these works.

PN142

Can this work this weekend be done by one or two or three of the contractors, without all three being there?---No. Firstly, Online are providing the labour to actually carry out the physical works, the track slewing as we call it, moving the track alignment so the physical works we need to do is that work. Without proper track protection, they are not authorised to go in and perform that work, so without Safe Working Solutions, we cannot give authority for those Online employees to go onto the track and perform work without that proper protection, and without MainCo providing assurances back to Connex, there is no authority, as you could call it, for Connex to continue rail operations without being assured that the track is safe to run metropolitan services again.

PN143

Now, if the work isn't performed this weekend, when will it be performed?---The earliest at which that work can be performed into the future is on the weekend, I think it's 8 and 9 April. The access to rail infrastructure is something which has to be organised well in advance because the parties have to make alternative arrangements for the transport of what would be normal rail passengers. So bus fleets have to be engaged, various operators have to be in agreement with the disruption and a whole process has to be negotiated about the closure of the track to allow the necessary rail activities to be undertaken. We have agreement to undertake that for this weekend. The state government has instructed all parties, except in emergency circumstances, there will be no disruption of rail services until 8 and 9 April because of the Commonwealth Games and then following from that, the Grand Prix. But essentially the Commonwealth Games is the primary interest and they want to ensure there is no disruption to rail traffic through until 8 and 9 April, which is the weekend after the completion of the Australian Grand Prix.

**** GRAHAM LESLIE GOSLING XN MR PARRY
PN144

What is the cost of the work that has to be performed this weekend?---The work is - the cost of the work is mainly the cost of the labour of the employees involved. There is the slewing of the track, but there is not much in terms of material cost. There is some associated equipment costs, but the principal cost would be the labour of the employees conducting the work. It's physical work of slewing tracks around an existing part of the rail network, which is a short distance but very necessary to allow future construction and demolition works to take place into the future. So it's just essentially the wages cost and some associated material and equipment costs for them to carry out that work.

PN145

If the work is not performed this weekend, there will be a seven-week delay in the project?---There will be a minimum of a seven-week delay in us conducting this work and the consequent flow-on of that is that all of the work we were meant to undertake between this weekend and 7 April will similarly have to be moved back, so effectively it's not just a matter of doing the work on 8 and 9 April. The whole of the program in terms of shutdowns into the future will be similarly disrupted right through and at this stage, I understand, in a 72-week program that we have to complete the project, there are 44 shutdown weekends. So the effect would be that the delay of the first shutdown then moves the other 41 shutdowns back by a period of time and that could create further complications about reaching agreement about those changes.

PN146

Have you had dealings with the RTBU and/or CFMEU in respect of the industrial relations on the project?---Yes. As I indicated we were awarded the contract I think around 17 and 18 November. There is a lot of development work required before we actually undertake work. Hence, the physical activities are taking place this weekend. Part of that work includes setting up site facilities for our staff and associated facilities for our workers who will be working, engaged on the project. And we undertook to provide a briefing to all of the construction unions and that meeting took place on 24 January in our offices. In attendance at that meeting were representatives of the RTBU in the form of Gary McPherson who has been named in this application. It was also attended by Russell Wilson who is the organiser from the CFMEU. He is also one of the persons named in these proceedings. It was also attended by the Electrical Trades Union, or the electrical division of the CFMEU. They were represented there as well, and there's associated other officials of those unions at that meeting.

**** GRAHAM LESLIE GOSLING XN MR PARRY
PN147

Were demands made by the RTBU at that meeting?---There was. I and the construction manager, a Mr Spicuglia who is here today, we gave an overview of the project in terms of the broad terms of the contract that we have. We also informed the unions that because the contract was one entered into by Thiess post 1 November, that in Thiess's view, and Thiess is intending to operate this as a code which had to be compliant with the National Code of Practice for the construction industry, Thiess as a major contractor in Australia, has a very keen interest in pursuing work. Much of which would involve commonwealth funding, either in a direct or indirect way and we indicated to the unions that on that basis, this and all future projects that Thiess undertake would need to be compliant with the national code and on the basis of that, the subsequent questioning put to us by the union for approximately an hour and a half I could not respond to on the basis of the questions - or the answers sought to the questions would be in breach of the national code and on that basis we indicated that we were unable to give them any information in relation to the project. We also indicated to the CFMEU that given that we had determined to undertake the work through subcontracting arrangements, that we had no need for an enterprise agreement with that union, hence the expired agreement that we had on other projects wouldn't be an agreement operating on this project because, firstly, it would not be code-compliant, and secondly, we didn't intend to engage employees in any event. The CFMEU handed to us a copy of an agreement they wished us to consider in relation to that project. The RTBU questioned us in terms of what does that mean for them, given that the terms of their enterprise agreements with various subcontractors have a clause in them currently referred to as a jump-up clause which states that when working on construction activities, members of the RTBU covered by those agreements would get the benefits of the agreements between the principal contractor on the project and the CFMEU. Given that we'd said we weren't having an agreement with the CFMEU on this project, they questioned how they would get the benefits of such a clause in the absence of us having an agreement, to which I responded that is a matter between them and the various subcontractors and not one which involved Thiess and we could not give them any instructions about what they needed to do. That was a matter between them and the subcontractors.

PN148

When was the first you heard of the prospect of industrial action this weekend?
---Approximately 9 o'clock this morning.

PN149

What were you told in your capacity as industrial relations manager?---I received a phone conversation - a phone call from Mr Spicuglia who is the project manager on the project, who - - -

**** GRAHAM LESLIE GOSLING XN MR PARRY
PN150

Who is here today?--- - - - is here in the Commission today. And he advised me that two officials of the relevant unions, being the CFMEU and the RTBU, had attended on site this morning and informed Mr Russell Wilson on behalf of the CFMEU and Mr Gary McPherson on behalf of the RTBU. After various discussions, the MainCo employees were instructed to leave the site - - -

PN151

Who by?---We understand by the RTBU, but because of the involvement of the unions, we can't be sure who specifically instructed them, other than that the union officials were there. Our presumption is, given the history of the coverage, that that would have been directed by the RTBU, and on the basis of that, we were at the time inducting those employees into our safe working procedures to operate on the project. They were told to leave and therefore we had to cancel the site induction for those employees, because based on that instruction, they left the site and were unavailable to continue with that induction process. Mr Wilson moved along the site and had various discussions with a number of our supervisors who, when he approached them, told them - they told him, based on the instructions they have from Thiess, that they would need to give the requisite 24 hours notice to Mr Spicuglia to gain entrance onto the site. They hadn't provided such notification and were requested to leave the site. That was put to them on more than one occasion. Eventually both of those officials left the site following those discussions.

PN152

So to your understanding, is work going to commence tonight at 1 am?---We have scheduled work to commence at 1 am in the morning. When Mr McPherson left the site this morning after the MainCo employees left, he indicated to our management that he would be advising both Online and Safe Working Solutions that the work is off and not to attend for work tomorrow morning. As a consequence of that, we have had regular dialogue with those organisations in the course of today to ascertain what their position is.

PN153

Have you spoken to anyone from the RTBU?---I have spoken to Mr Trevor Dobbin who is the state secretary of the rail division of the RTBU at approximately 2.15 this afternoon. I did that for the purpose of advising that we would be undertaking proceedings in the Commission this afternoon under section 127 and they are named in that application and I also indicated to him that we saw no basis for them undertaking any action against the project. He responded by indicating that the terms of their enterprise agreement were not sufficient in relation to performing work on this project, to which I informed him, well, that's a matter you should be taking up with those subcontractors, but should not affect them being able to carry out work on the project tonight, and sought to have him stop the industrial action, to allow that work to proceed.

**** GRAHAM LESLIE GOSLING XN MR PARRY
PN154

What was his reaction to that?---That he would then be taking those matters up with those relevant contractors and would instruct Gary McPherson, the organiser, to continue discussions with those subcontractors to see if they could reach an agreement.

PN155

THE COMMISSIONER: Did he indicate that he was supportive of work proceeding this evening as expected?---He didn't indicate whether that would be occurring or not. He continually reiterated that the terms of those agreements and the absence of a CFMEU agreement meant that the terms and conditions were not sufficient for their members to undertake construction work and that I also ought to think about proceeding down the path that we've undertaken because of the good working relationship we have and something that he wanted to maintain, which I gave him assurance that's something we did value and wanted to maintain, but that would not come at the expense of them - would not come in the face of them continuing with industrial action. I do say for the record we do have a good relationship and have had a long term relationship with the RTBU and therefore are more than surprised that this action has occurred in the way that it's been undertaken.

PN156

MR PARRY: I didn't propose to lead anything further from Mr Gosling. Is there anything else the Commissioner would want to ask or get clarified?

PN157

THE COMMISSIONER: Only, Mr Gosling, in relation to the RTBU's involvement in what you anticipate is going to be a failure of workers to report to work this evening, you have made an assumption that it was the RTBU direction or encouragement to those workers to leave the job site today?---Yes.

PN158

And on the face of it, not report for work this evening?---Yes.

PN159

We have had an assurance from the CFMEU that they have not been directly involved in any of those activities, in the sense that they have not sought to direct anybody to not report for work. So on the face of it, if people don't report for work and there are two unions that were on the site today, that means the other union was probably involved?---Yes, and we've also had, as I say, dialogue with the - both of the other two subcontractors who have confirmed that they have had contact from the RTBU indicating that work was not to commence tonight and that they were seeking to reach some agreement which would allow work to continue, but at the time of these proceedings, I hadn't heard that the matter had been resolved by those two contractors with the RTBU. Certainly the RTBU, as I'm instructed from those two companies, advised them that they were, you know, indicating that work should not commence tonight and they should in fact agree to certain provisions as a means of resolving the dispute.

**** GRAHAM LESLIE GOSLING XN MR PARRY
PN160

Do you have anything more, Mr Parry?

PN161

MR PARRY: If the Commission pleases, might Mr Gosling be excused for the time being?

PN162

THE COMMISSIONER: He may, yes?---Thank you, Commissioner.

<THE WITNESS WITHDREW [6.30PM]

PN163

MR PARRY: If the Commission pleases, we seek an interim order for a period of one week. There is a debate in the Commission as to how one arrives at interim orders and whether one needs to establish jurisdictional matters beyond doubt. We would submit that, firstly, Thiess are directly affected, that the work is regulated by certified agreements which we have provided to the Commission. We submit that the evidence of Mr Gosling indicates that there is industrial action that is threatening, impending or probable, that is, a ban on the employees of the three contractors attending for work this evening and performing work. We submit that that industrial action, insofar as there is a discretion in the Commission which undoubtedly there is, is illegitimate and we submit that this is an appropriate matter in which the Commission should make an interim order.

PN164

Now, the order that we have provided to the Commission, we have deleted the CFMEU following the earlier proceedings. The order contains within it a definition of industrial action and hopefully what is in 4.2(a) is - my draft as 1 pm, but I hope that has 1 am in 4.2(a), (b), (c) and (d). The operative parts of the provision occur in clause 5 where there is an injunction in effect on the RTBU and its officers and delegates and employees not to engage in industrial action. There is provision in order 5 for a letter to be sent. Now, we do seek that. We recognise that we will need to serve this, but the fact of this appearing in an order of the Commission, we submit, is an important matter and it will be able to be certainly used by the employers to indicate to the employees that the Commission sees this matter as one appropriate for orders of the Commission.

PN165

So we would seek an order in the terms sought. As I indicate, we don't seek the six month period. We would want this matter to come back in any event, and on those grounds, we seek an order be made by the Commission.

PN166

THE COMMISSIONER: What duration? Are you suggesting perhaps one week, Mr Parry?

PN167

MR PARRY: I'm suggesting one week, Commissioner, yes.

PN168

THE COMMISSIONER: Would it be appropriate for the order to commence from, say, 7 pm this evening?

PN169

MR PARRY: Yes, Commissioner. That would be suitable.

PN170

THE COMMISSIONER: Good. Is there anything else you want to say, Mr Parry?

PN171

MR PARRY: No, Commissioner.

PN172

THE COMMISSIONER: Good. Mr Bunting, do you want to press your application for intervention and make some submissions?

PN173

MR BUNTING: May I make just a very brief submission, Commissioner, just dealing with perhaps the intervention and what we say about the matter at the same time. In relation to the intervention, our submission is that the ABC Commissioner has a simple right of intervention. It's not a matter for leave. It is governed by section 72 of the Building and Construction Industry Improvement Act 2005, and that section - - -

PN174

THE COMMISSIONER: It's not an Act I'm terribly familiar with, Mr Bunting, I'm afraid.

PN175

MR BUNTING: No. No, I understand, sir. That section says:

PN176

The ABC Commissioner may, by giving written notice to the industrial registrar, intervene in a matter before the AIRC that arises under the Workplace Relations Act and involves, (a) a building industry participant, or (b) building work.

PN177

THE COMMISSIONER: So it says "intervene", not seek to intervene?

PN178

MR BUNTING: Yes. The only question is, have we given notice? Yes. Notification was given to the registrar. I think you will have that, sir. Is it a matter before the Commission arising under the Workplace Relations Act? Yes. Does it involve a building industry participant or building work? I won't take up time with that, but it is as plain as day that it does, sir, having regard to the definitions in this Act.

PN179

THE COMMISSIONER: Mr Bunting, I'm better informed on that than I was earlier, if that's the case.

PN180

MR BUNTING: Yes. I'm not sure whether it's necessary for me to seek leave, but that was only as solicitor or counsel appearing, and that may be a matter still governed by section 42 of the Workplace Relations Act. So to the extent that that might be the case, I sought leave.

PN181

THE COMMISSIONER: Yes. Mr Bunting, help me with the formal title of the code that's been referred to.

PN182

MR BUNTING: Yes, the code that's referred to is the National Code of Practice for the Construction Industry, and then associated with that are - did you get that, sir?

PN183

THE COMMISSIONER: Yes, I did.

PN184

MR BUNTING: That, I might say, was first issued in 1997. Then associated with that are some guidelines known as the Australian Government Implementation Guidelines for the National Code of Practice for the Construction Industry. They have been issued, a revised version issued September 2005 by the Department of Employment and Workplace Relations. Sir, the only substantive submission we wish to make is support the proposition that in the exercise of your discretion the order proposed by Mr Parry is appropriate. Having regard to the materials and the evidence before the Commission, having regard to Mr Parry's submissions and having regard to the terms of the Building and Construction Industry Improvement Act, and in particular the section 38 which provides that a person must not engage in unlawful industrial action, a term which is defined in section 37 in a way which I think undoubtedly picks up this industrial action, having regard to that, we would say it is clearly a case where in our submission it is appropriate for the Commission to exercise its discretion in favour of granting the order. That expression, "unlawful industrial action" is defined in section 37
as - - -

PN185

THE COMMISSIONER: Mr Bunting, I don't need to be convinced about the proposition that industrial action appears likely this evening.

PN186

MR BUNTING: I have no further submissions. Thank you.

PN187

THE COMMISSIONER: Thank you. Good. Having heard the submissions of Mr Parry, supplemented by Mr Bunting, taking account particularly of the consequences of the failure of work to commence on the Craigieburn Rail Project this evening, I propose to exercise my discretion and issue an interim order which will be directed to the Rail, Tram and Bus Union as sought by Mr Parry. The order will require that the Rail, Tram and Bus Union and its officials and members not engage in industrial action which would affect the Craigieburn Rail Project. It will come into force from 7 pm this evening, Friday, 24 February and remain in force for a period of one week. I would propose to reconvene this matter at 2 pm on Monday next to hear further submissions from the company and the union, and any other intervenors who have an interest in the matter.

PN188

Just in relation to a statement which I propose to issue, I have included in that statement that Ms Walters from the CFMEU gave the Commission an undertaking to the effect that the CFMEU has not sought or instructed any workers involved in the Craigieburn Rail Project to engage in any industrial action over the weekend commencing Saturday, 25 February 2006. Does that sound as though it would be sufficient for everybody's purpose? I could say to engage in any industrial action or to refuse to attend work - including to refuse to attend work.

PN189

MR PARRY: I think she told the Commission that there was no ban on industrial action placed by the CFMEU on work on the site.

PN190

THE COMMISSIONER: Yes.

PN191

MR PARRY: Yes.

PN192

THE COMMISSIONER: She did. That was my recollection.

PN193

MR PARRY: Yes.

PN194

THE COMMISSIONER: Good. Is there anything else that anyone would like to say?

PN195

MR PARRY: No, Commissioner, but of course, it’s a late night and we thank the Commission for sitting late and hearing what is an important application.

PN196

THE COMMISSIONER: Good. We will now do the paperwork necessary to issue the order. I did ask that an email copy be provided with the amendments that we spoke about earlier to my email address, and hopefully it's there. If that is the case, I would assume, depending on my very efficient associate who will be doing this work, I will be ready in about 30 to 45 minutes to give you the documents.

PN197

MR PARRY: If the Commission pleases.

PN198

THE COMMISSIONER: Good. This matter is adjourned.

<ADJOURNED UNTIL MONDAY 27 FEBRUARY 2006 [6.42PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #P1 - DOCUMENT TENDERED BY MR PARRY PN105
EXHIBIT #P2 - DRAFT ORDER PN107
GRAHAM LESLIE GOSLING, SWORN PN125
EXAMINATION-IN-CHIEF BY MR PARRY PN127
THE WITNESS WITHDREW PN162