C2006/1023, Transcript of Proceedings [2006] AIRCTrans 361 (16 March 2006)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 14333-1

DEPUTY PRESIDENT MCCARTHY

C2006/1023

AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION-WESTERN AUSTRALIAN BRANCH
AND
TOTAL CORROSION CONTROL PTY LTD
s.127(2) - Appln to stop or prevent industrial action
(C2006/1023)

PERTH

4.09PM, THURSDAY, 23 FEBRUARY 2006

Hearing continuing

PN1

THE DEPUTY PRESIDENT: This is an application lodged by the AMWU asserting that industrial action is occurring, or there is a probability of it, and seeking an order to issue pursuant to that section. That matter was lodged yesterday afternoon at abut 3.30, allocated to me later yesterday and unfortunately I couldn’t list it before 4 pm this afternoon.

PN2

MR D ELLIS: I appear on behalf of the applicant.

PN3

MR A TALBERT: I appear on behalf of the applicant.

PN4

MR C GOUGH: I appear with MS J MARCHESE, on behalf of the respondent.

PN5

THE DEPUTY PRESIDENT: You’re seeking leave, I take it?

PN6

MR GOUGH: My apologies. Yes, I seek leave, if that’s possible.

PN7

THE DEPUTY PRESIDENT: Any issue with that?

PN8

MR ELLIS: I too seek leave, sir. I apologise for - - -

PN9

THE DEPUTY PRESIDENT: I’m not sure that you need leave. You’re an employee of the AMWU, are you?

PN10

MR ELLIS: Correct, sir.

PN11

THE DEPUTY PRESIDENT: I don’t think you need leave but leave is granted to both of you in case both of you do need it. You certainly do need it. Yes, Mr Ellis?

PN12

MR ELLIS: Thank you, sir. Preliminarily before we go, the airconditioning is humming quite loudly out here so I’ll try and speak up so that I’m clearly heard.

PN13

THE DEPUTY PRESIDENT: I would have hoped we wouldn’t have issues relating to airconditioning.

PN14

MR ELLIS: That’s true. Sir, we say this is an application, we say it’s a fairly straightforward matter. It has been under way for some time. We might note from the file that there was a previous application which was withdrawn. It was a previous matter that appeared before Commissioner Blain.

PN15

THE DEPUTY PRESIDENT: I have had a very brief perusal of the transcript of that matter but I can’t say I have any familiarity with it at all.

PN16

MR ELLIS: I just wanted to draw it to you attention. Sir, I’ll just take you, if you don’t mind, to the grounds of the applications and if you’re happy I’ll lead you through those or, if you like, we can take them as read.

PN17

THE DEPUTY PRESIDENT: I have read them, yes.

PN18

MR ELLIS: I won’t go through those in detail, sir. This is a situation that boils down to - the situation involves approximately 130 workers. Our agreement nominates 100 workers but I was advised this afternoon of an event which occurred I think on 14th February, which involved 130 workers, so people move around so that it’s a different number of individuals involved. But in any event, it’s a significant number of people involved.

PN19

These workers are in engaged in working which is regulated by the Total Corrosion Control Alcoa Local Services Contractors and Associated Projects Certified Agreement 2004-2007, which has a nominal expiry date of
1 January 2007. Sir, this afternoon we propose to call evidence that will show the employer’s determined disregard for the heat stress and related clauses of the agreement. There are two or three, clause 17 and clause 18, 18.4 - sorry 8, I beg your pardon, which is involved.

PN20

In any event, we submit that the conduct of the employer that we complain of has been taken is into unprotected industrial action. What they have done is not taken pursuant to any bargaining period and, in any event, the only relevant bargaining period ..... the certification of the agreement. Sir, we say that the conduct of the employer is straight out unprotected industrial action. It is, in our submission, unlawful by virtue of the Building and Construction Improvement Act and it’s taken without any attempt to access the dispute resolution procedures in the agreement, without any attempt being made to utilise the bargaining period under the Workplace Relations Act.

PN21

Sir, to invoke the jurisdiction of the Commission in relation to our application, we draw your Honour’s attention to the authority of the National Union of Workers v Geoffrey Thompson Fruit Packing Co Pty Ltd, which is print numb N3221, wherein the learned Commissioner Merriman said on that occasion, and I’ll read the quote so that it’s available for the Commission:

PN22

On the threshold question of whether or not an employer can be subject to an order pursuant to section 127 of the Act, the decision of the Full Bench ...(reads)... in any circumstances it could not apply to action taken by an employer.

PN23

That’s the definition of “industrial action”, sir:

PN24

However, that issue needs to be determined in the context of the relevant facts.

PN25

Sir, section 127 of the Act requires the Commission to consider making orders to stop or prevent industrial action, and “industrial action” is defined by section 4 of the Act. Do I need to draw the Commission’s attention to the definition in the Act, sir?

PN26

THE DEPUTY PRESIDENT: No.

PN27

MR ELLIS: Sir, we say today it’s well settled that an employer can engage in industrial action as defined within the meaning of the Act and there are a number of authorities which support that proposition, they being the Firefighters case, the National Union v Geoffrey Thompson Fruit Packing, which is the one I have just referred to, sir, and the Australian case - - -

PN28

THE DEPUTY PRESIDENT: If I can interrupt there, Mr Ellis, it’s probably not contested. It might be contested whether as a matter of fact industrial action is being undertaken but do you contest the scope or the meaning of the 127 taken in conjunction with the definition of “industrial action”, an employer may be found to have been involved in or taking industrial action?

PN29

MR GOUGH: I have no difficulty at all, your Honour, with the proposition that an employer may be found to be engaged in industrial action. What my learned friend needs to do I think is take you to why this is industrial action.

PN30

THE DEPUTY PRESIDENT: Yes.

PN31

MR ELLIS: I was coming to that point as we speak. Sir, it is our submission today that taking into consideration the relevant facts, and we intend to adduce evidence to support that, we say the employees were engaged pursuant to a certified agreement and the action of the company is a limitation and a restriction on the employees in accepting work or offering for work for which they have undertaken to perform in accordance with the agreement.

PN32

We say it is clear the employees have offered for work and the action of the company in not implementing the terms of the heat stress related clause in the agreement limits their ability to perform their work. This is particularly so when the employees who present for work, and given the employer has not complied with the terms of the agreement and the employees who then conduct themselves in strict accordance with the agreement, the employer then refused to pay the employees for their compliance with the agreement.

PN33

Your Honour, we say it is true that the employer is under an obligation to consult with the AMWU and the employees in relation to the implementation of the heat stress clause. This in itself does not constitute industrial action. What we do say, sir, is that whilst refusing to consult does not itself constitute industrial action, there needs to be something more, whether that is a restriction, limitation or ban - and once again I invoke the authority of the National Union of Workers in support of that.

PN34

Sir, we say there’s something more - there are two characteristics in this case. The first is a restriction of the employees offering for work which they have undertaken to perform in accordance with the agreement where the conduct of the employer constitutes a restriction or limitation or ban and that, in this case, the restriction exists in that the employees are told to work in conditions which are not contemplated by the agreement, in particular that being heat stress conditions, that is, they were told that unless they accepted certain conditions, that being excessive heat in the workplace, they could not work, that is they would not get paid, and that’s exactly what happened.

PN35

The second characteristic or something more is that notwithstanding employees working in compliance with the agreement, they were not paid, and we say that non-payment is enough to constitute something more and thus characterises a conduct of the employer as industrial action as defined by the Act. It is our submission that this conduct of the employer constitutes an ultimatum being offered by the employer, that is work in hot conditions or bugger off. Sir, that concludes my opening submissions.

PN36

THE DEPUTY PRESIDENT: Mr Ellis, what’s the urgency of this matter? I know the temperatures in the last week or so have been fairly high. I don’t know what the projection of temperatures is in the forthcoming weeks, but what, if anything, causes an urgency in respect of this?

PN37

MR ELLIS: Sir, there is an urgency and there has been an urgency created since - or about 13 February. That’s the first date that the workers were not paid for complying with the terms of the agreement. We did bring this matter on before, as you’re aware, as pointed out.

PN38

THE DEPUTY PRESIDENT: Yes.

PN39

MR ELLIS: We had intended - - -

PN40

THE DEPUTY PRESIDENT: But that was in the middle of January.

PN41

MR ELLIS: Yes. There have been other matters which we’ve needed to attend to, sir.

PN42

THE DEPUTY PRESIDENT: I see.

PN43

MR ELLIS: In the meantime, since the last hearing, my instructions are that there was an attempt to conciliate the matter with the company in negotiations.

PN44

THE DEPUTY PRESIDENT: I see.

PN45

MR ELLIS: We reached an impasse there and it hasn’t happened so we felt that now there is an urgency. The Act implies an urgency in that the Commission will hear this matters as quickly - as soon as practicable.

PN46

THE DEPUTY PRESIDENT: Yes, but in the sense of the practicability do you consider that there’s likely to be a circumstance arise in the future where the temperature is above those temperatures where it may cause a problem?

PN47

MR ELLIS: That’s true of course, sir. We are of course always willing to abide by the letter of the law and filed our application and here we are today. Given the temperature - - -

PN48

THE DEPUTY PRESIDENT: Is the heat behind us and it’s next summer that this may become an issue or is the heat still with us?

PN49

MR ELLIS: Who knows what’s going to happen on Monday or Friday with the heat. Sir, I put it to you that the evidence I intend to adduce with the leave of the Court will illustrate to you that we haven’t been asleep on the question. We are attempting to negotiate a resolution of the matter. We feel it’s clear that our delegates, despite their best endeavours, have come to nothing which has brought us to this point.

PN50

THE DEPUTY PRESIDENT: Yes. Just a moment.

PN51

MR ELLIS: I should point out, sir, that there are predictions of a late summer which could go longer, workers haven’t been paid.

PN52

THE DEPUTY PRESIDENT: The wonders of modern technology, Mr Ellis, I am informed that the temperature for Monday is estimated to be 35 degrees, but I guess that may be an issue - - -

PN53

MR ELLIS: I appreciate your point, sir. If we reach the resolution day in some way or another - - -

PN54

THE DEPUTY PRESIDENT: The other thing I’m considering, given the lateness of the hour today is - and as it happens I have fairly free day tomorrow - that whilst it might cause an inconvenience to people for me to deal with the matter tomorrow, it might not create as much compaction of time or elongated hours of dealing with it. Do you have a view about that?

PN55

MR ELLIS: Let me just consult on that.

PN56

MR GOUGH: Perhaps, your Honour, while my friend seeks instruction, I may make some points to you.

PN57

THE DEPUTY PRESIDENT: Perhaps, Mr Gough, whilst he’s getting those - can you wait until he comes back and I’ll hear from you then and then hear from him once he has his instructions.

PN58

MR GOUGH: Yes, sir.

PN59

THE DEPUTY PRESIDENT: Just before you respond to that, Mr Ellis, Mr Gough wanted to say a few words.

PN60

MR ELLIS: Certainly, sir.

PN61

MR GOUGH: Thank you, your Honour. I was just briefly going to point out that if it was to be a full hearing today I might have some difficulty in that my file ..... since 6 February 2006, when the union withdrew their initial application.

PN62

THE DEPUTY PRESIDENT: Sorry, I didn’t hear you?

PN63

MR GOUGH: On 6 February they withdrew their initial application by letter to this Commission.

PN64

THE DEPUTY PRESIDENT: Yes.

PN65

MR GOUGH: There has been a great silence since then and one would almost presume somewhat of an ambush in that this was faxed to my client after business hours yesterday. I have the fax in front of me which shows it went through at 20 to seven last night. My client didn’t actually receive that fax until very late this morning and we received instructions midday or slightly after.

PN66

THE DEPUTY PRESIDENT: I’ll just alert you, one needs to be careful with those times because quite often the fax time shows the Eastern summer time. I’m not sure what the time there is.

PN67

MR GOUGH: I think it’s a safe assumption if your file shows that it was filed at 3.30.

PN68

THE DEPUTY PRESIDENT: That’s what it does show, yes.

PN69

MR GOUGH: It’s unlikely to be Eastern States time and, in any event, Eastern States time would only apply if the fax was originating in the Eastern States and the ID on this fax clearly indicates that it’s come from the AMWU.

PN70

THE DEPUTY PRESIDENT: Yes, 5.22 pm, that would be Western Standard time.

PN71

MR GOUGH: This shows the AMWU at 1841 last evening.

PN72

THE DEPUTY PRESIDENT: Yes, okay. No, 8.55 pm yesterday the listing was - - -

PN73

MR GOUGH: At any rate, your Honour, the position is that it wasn’t or didn’t come to the attention of our clients until late this morning. Accordingly, my preference would be that if you’re minded to deal with all the issues at once, I’d ask for an adjournment until tomorrow if it’s convenient. I am in a position to address today the issue of jurisdiction if you prefer to proceed on that ground. I do have some witnesses with me and I have endeavoured to get instructions as best I can in the last hour or so but obviously my instructions are limited given the short time that I have had.

PN74

THE DEPUTY PRESIDENT: Yes. I’ll just hear from Mr Ellis first.

PN75

MR ELLIS: Sir, I believe we have complied with rule 25 of the Rules of the Commission in relation to service. Your Honour will be intimately aware of where I personally was between 3 and 6 o’clock yesterday. We were here on the Monodelphis matter, you might recall.

PN76

THE DEPUTY PRESIDENT: Yes.

PN77

MR ELLIS: So, in terms of personal - that’s the reason why I didn’t get the matter in our fax until - I’ll give you an exact time, sir. 6.50 by my clock, I put it on the fax in my office. That’s when I got back to my room after being here. But, nonetheless, we would say that the service has been satisfied. I have taken instructions from my client in relation to an adjournment until tomorrow and we’re prepared to do that. I personally have been down on section 127 notices with 10 minutes’ notice, sir, and have had to argue a full trial. So I’m sure my friend will get the hang of it after a while.

PN78

But we’re prepared to - certainly we don’t accept or concede to the fact that we attempted to ambush the other side in this matter. But if you feel minded to bring the matter on tomorrow morning, we’re happy to do that.

PN79

THE DEPUTY PRESIDENT: I think it might be prudent to do so and it’s the reason I raised it, Mr Ellis, because I’m probably more aware than most in this room of the obligations under the Act to deal with these matters expeditiously, but it would seem to me that the underlying issue of this matter needs to be very cautiously dealt with and it also seems that it’s not an issue that there should be any incidents arise today or tomorrow although, as you say, who can accurately predict the weather. I think it just might be better all round to deal with it tomorrow in full as I have a free day.

PN80

So, if that’s not going to inconvenience you too much, or Mr Gough, you too much - - -

PN81

MR ELLIS: Fortunately I have a full free day tomorrow too.

PN82

THE DEPUTY PRESIDENT: It’s not an invitation to use the full day, by the way. Does that satisfy you if I do that? And Mr Ellis doesn’t seem to object to that, Mr Gough, unless there’s anything further you want to add now.

PN83

MR GOUGH: It does, your Honour, thank you. I appreciate that. One further point I would make is when this application was filed initially, and the initial hearing came on, one matter that was raised from our side of the bench of course was the jurisdiction issue. On that occasion the union representative claimed surprise and the matter proceeded with an exchange of correspondence between the parties and the Commission, which resulted ultimately in a letter emanating from the Commission suggesting that if the matter went forward in its then form, the Commission would require the union to file some written submissions on jurisdiction.

PN84

We have had a new application filed substantially in the same terms. That situation hasn’t changed. We would say it might be appropriate and useful if the union would file some written submissions on why it says this is an industrial action because the position that we’re going to get tomorrow if we go to a hearing, your Honour, is that I’m going to hand you case after case after case which says actions of this type don’t constitute industrial action and, with respect, the authorities I have I would say are quite clear, and this is going to be, we would say, a situation where the union is in effect alleging a breach of an EBA and their remedies are often the Federal Magistrates Court. And I just don’t want to - if I can circumvent the wasting of both the Court’s and our time by looking at the jurisdictional issue, I suspect there would be some merit.

PN85

THE DEPUTY PRESIDENT: I think I’ll simply list it again tomorrow. I won’t require any written submissions between now and then. In the meantime, Mr Gough, I’ll refresh my own mind of issues relating to jurisdiction that might arise out of this and I’ll hear you tomorrow obviously on those issues.

PN86

MR GOUGH: I have copies of all the cases, your Honour.

PN87

THE DEPUTY PRESIDENT: That would be helpful if you could provide me with those copies now and I can peruse them overnight. But you’d be, I think, on notice, Mr Ellis, that there will be jurisdictional objections so the manner in which you present your case needs to take that into account.

PN88

MR ELLIS: Indeed. We have no doubt that that will be the - - -

PN89

THE DEPUTY PRESIDENT: And to the extent that there are issues that could take Mr Gough by surprise. If you can avert any of those issues by alerting him to the nature of issues that you intend to raise before the hearing tomorrow, I’d appreciate it.

PN90

MR ELLIS: I believe I can confidentially say that there won’t be any issues of that nature.

PN91

THE DEPUTY PRESIDENT: Yes, thank you. I’ll adjourn and you’ll receive notice of listing for tomorrow.

<ADJOURNED UNTIL FRIDAY 24 FEBRUARY 2006 [4.30PM]