C2006/2577, Transcript of Proceedings [2006] AIRCTrans 799 (2 June 2006)

TRANSCRIPT OF PROCEEDINGS

---

Workplace Relations Act 1996 15064-1

COMMISSIONER SIMMONDS

C2006/2577

BENDIGO MINING LIMITED
AND
COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION
s.496(1) - Appl’n for order against industrial action (federal system)
(C2006/2577)

MELBOURNE

9.37AM, FRIDAY, 19 MAY 2006

Continued from 18/5/2006

PN161

THE COMMISSIONER: Change to appearance?

PN162

MR L LEVIN: I seek leave to appear on behalf of the applicant.

PN163

MS E WALTERS: No change to appearances on behalf of the CFMEU and I understand the AMWU and ETU have no opposition to the application for leave.

PN164

THE COMMISSIONER: I'm sorry?

PN165

MS WALTERS: No opposition to the application for leave.

PN166

THE COMMISSIONER: I think given that leave was granted to the, it's pretty automatic. Where are we at?

PN167

MR LEVIN: Commissioner I understand that the employees are back at work. I understand that they returned to work at approximately 8.30 this morning. Whether, obviously we are all holding fingers, holding fingers that the arrangement does continue, that they do continue to be at work. For present purposes what I would be asking the Commission to do is to adjourn this application. We have another, a ….. period until the 48 hours elapses. I would like to, obviously ideally like to test whether or not this return to work is not temporary. That it is a permanent arrangement.

PN168

Especially in view of what has happened in the last couple of days where there has been a stop/start return to work so with the Commission's permission, what I would like to ask is that this application be adjourned and if, at the end of the 48 hour period that, are still remained at work then the application will lapse.

PN169

THE COMMISSIONER: So it's an adjournment, well I think we probably ought to try and get some agreement about what time it was lodged. According to the file it was at 13.34 on the 17th so I'm talking about 13.34 today.

PN170

MR LEVIN: Yes Commissioner.

PN171

THE COMMISSIONER: So what process do you say we should adopt?

PN172

MR LEVIN: What I suggest is - - -

PN173

THE COMMISSIONER: If I hear nothing further from you. We'll adjourn now. If I hear nothing further from you I'll take it that the application is withdrawn.

PN174

MR LEVIN: Yes.

PN175

THE COMMISSIONER: So if I haven't heard from you by 1.34.

PN176

MR LEVIN: By 1.35, yes.

PN177

THE COMMISSIONER: 1.34, because that's when the time is up, I will assume, no I won't assume.

PN178

MR LEVIN: It will be deemed.

PN179

THE COMMISSIONER: It won't deem anything. My understanding is that your position is that if you have not contacted me, the application is withdrawn.

PN180

MR LEVIN: That's correct, Commissioner.

PN181

THE COMMISSIONER: Anyone else want to say anything?

PN182

MS WALTERS: Yes if the Commission pleases. This morning, officials of the CFMEU and I understand and instructed AMWU and ETU attended the site in line with submissions of the respondent yesterday. They sought to enter the site in accordance with the Occupational Health and Safety Act pursuant to section 58 of that Act to report back in conjunction with the site safety committee as to the process that had been exhausted in relation to WorkSafe and the DPI.

PN183

If the Commission pleases, in breach of that Act as appears to be a continuous breach on behalf of the applicant, those officials were denied entry to the site. Those officials were there for legitimate purposes, were there simply to comply with the Occupational Health and Safety Act and to deal with the matters that had been at issue for the last couple of days in relation to the occupational health and safety concerns.

PN184

Certainly the CFMEU seeks in the first instance, a direction from the Commission that the applicant comply with the Occupational Health and Safety Act in relation to the provisions of right of entry, that is pursuant to 58 which is whereby a representative of the Occupational Health and Safety Committee can request assistance from a qualified professional on that basis and also in relation to section 70 whereby an official of the union who has a, what is called an REO permit, presents that permit and their Federal right of entry permit and any suspected breach of the Act for which they seek to enter those premises, that the applicant complies with the Occupational Health and Safety Act.

PN185

In circumstances, given what's transpired this morning if the Commission pleases, whilst we may be here on the purposes and the jurisdiction of a section 496 application, the respondent unions require some comfort that the applicant is going to no longer breach the Occupational Health and Safety Act and we need to be able to relay that back to employees of the applicant because the employees currently are extremely concerned that matters cannot be dealt with in accordance and under the auspices of both statutory regimes. The union is simply seeking to comply with them and we are having a great difficulty in doing so.

PN186

On that basis we seek a direction from the Commission, or indeed a recommendation that the applicant complies with the relevant provisions of the Occupational Health and Safety Act. That is not without, that is within the jurisdiction of the Commission. It remains within the Workplace Relations Act. The provision whereby the Commission is required to consider and to comply with the relevant provisions of any state Occupational Health and Safety Act and if the Commission pleases I can refer you to that section. I've not got it at hand. 107 of the Workplace Relations Act post-reform and we seek that direction. If the Commission pleases.

PN187

THE COMMISSIONER: What's the basis for me, that requires a finding that there has been a breach. I hear the assertion that there's been one but I'm not sure that the whole thing isn't misconceived. The Commission's not here, I don't think the role – I mean I see what you say about 107 and that talks about me in performing my functions. What functions am I performing? The application before me is for the matter to be adjourned.

PN188

MS WALTERS: Yes. If the Commission pleases that may be the subject matter of a separate application and certainly the respondent unions understand, certainly the CFMEU is in a position to bring forward such an application. We appreciate, in terms of the application before you in relation to the 496 that it be adjourned until the 48 hours lapses at 1.34. We have no opposition to that application on the basis that currently there is no jurisdiction for the Commission to make a finding in relation to the section 496 application. We, in conjunction that given the subject matter of the dispute before the Commission, that is the subject matter - - -

PN189

THE COMMISSIONER: I'm not sure there's a dispute before the Commission. What there is, is an application for an order against industrial action.

PN190

MS WALTERS: Indeed. If the Commission pleases that is the application before you. If the Commission pleases there may not be jurisdiction to grant such a direction. In those circumstances what we seek is, in effect, an undertaking from the applicant on transcript that there be no further, what we allege are breaches of the Occupational Health and Safety Act, that the applicant undertakes to comply with the Occupational Health and Safety Act.

PN191

There may be further to be said by the other respondent unions in relation to that but we have some difficulty, currently, in terms of the practical reality of the situation whereby the respondent unions are doing their utmost to resolve issues at hand and that is being frustrated and we allege breaches of the Occupational Health and Safety Act in relation to that.

PN192

THE COMMISSIONER: Mr Terzic?

PN193

MR TERZIC: Commissioner, there's a few matters for the Commission to turn its mind to. Firstly is the application for adjournment by the applicant. That's ….. As for the request for a direction to be issued by Ms Walters, we support that request too but in the alternative if the Commission is not minded to issue a direction, we also would seek an undertaking from the applicant in the manner sought by Ms Walters or again, another approach that might be adopted by the Commission is to make a recommendation to the effect that the relevant union organisers who have taken the time and trouble to go to the site at Bendigo.

PN194

Mr Bradley from the AMWU travelled to Bendigo last night to be at the site first thing in the morning at considerable time and trouble to himself with a mission. The mission being to effect a smooth return to work first thing this morning when the workers turned up for work. Moreover, perhaps I might have been mistaken in my understanding of what had transpired in various discussions between Ms Walters as the leader of the union delegation and the representatives of the applicant in this matter but I was always under the impression that there was perhaps a tacit agreement that the union officials would attend site, be admitted entry on site and that they would give a full report back and recommend a return to work.

PN195

But to confirm whether such had occurred I had telephoned the contacts listed on the application, a Mr Daniel Proietto at and/or about 6 pm last night. When I could not get through to him I called the direct number for Mr Levin and left a message for him, giving my mobile telephone number indicating that I was available to take a call at all hours. I then tried to call this morning with no success, leaving messages at the Minter Ellison switch and then in a last ditch attempt I sent an email to Mr Proietto, being the person on the application we've left an email address for contact. I would like to hand up a copy of that email. The Commission might want to mark that.

EXHIBIT #T1 COPY OF EMAIL TO MR PROIETTO FROM AMWU

PN196

MR TERZIC: Commissioner, you can see the email was sent this morning at 8.09 am. It was addressed to the contact on the application and it states:

PN197

In the AIRC yesterday evening there were various discussions between your client through its representatives and ...(reads)... or scope for work to be delayed any further, can you speak to your client about this urgently.

PN198

I end the quote. Commissioner, based on the submissions I have made and exhibit T1, I think it would be open to the Commission to make a finding that the AMWU through its officers and officials have done everything they possibly can to effect a smooth resumption to work this morning and we have not received any sort of constructive response from the applicant.

PN199

So it's on that basis that, in the alternative, that the Commission recommend that a report back meeting occur, a paid report back meeting occur of a reasonable duration where the union officials can address the workers who had stopped work over safety concerns, explain to them what had happened, explain to them the outcome of these procedures, explain to them the seriousness of an order being issued under section 496 of the Act and hopefully engender co-operative and constructive workplace relations at the Bendigo Mine Construction site in accordance with the objects of the Act, in particular section 3, in the preamble to the specific objects set out in the various paragraphs therein. If the Commission pleases.

PN200

THE COMMISSIONER: Yes thanks, Mr Terzic. Mr Crampton?

PN201

MR CRAMPTON: Commissioner I support the applications before you and like the CFMEU and AMWU, the ETU had officials present at site this morning to assist in the smooth resumption of work having, being in a position to report back that the isolation procedures that had been agreed to, had been carried out. That there could be confidence that the work on site could resume and continue safely. However the situation for the ETU was no different to that, that was presented before the CFMEU and AMWU and without going into further detail I think it's fairly obvious what the position has been. This has been recorded and we would support the application for a report back meeting and support the application for the adjournment. If the Commission pleases.

PN202

THE COMMISSIONER: Yes I propose to grant the adjournment. I'm not inclined to either issue a recommendation or make it. Nor do I believe I have any jurisdiction to make a direction in regard to the other matters. I do say however, for the record that it was my expectation after the discussions last evening that there would be some presence by the unions on the site but if the unions wish to follow that matter up they've got ample recourse. People can't, I mean, if there has been a breach of the Occupational Health and Safety Act or some other Act, the unions have got the recourse to that.

PN203

The employers have shown them, by their actions and what they do in terms of the Workplace Relations Act and what's good for the goose is good for the gander.

PN204

MR LEVIN: Commissioner, if I can just say my instructions are very clear that there has been no breach of the OH&S Act.

PN205

THE COMMISSIONER: Yes well I make no finding one way or the other. If they think that there's been a breach they can go ahead and take whatever action is appropriate but based on what's before me I can't be satisfied, well I can't be satisfied that there's a breach because there's no evidence before me of that. I don't know what the arrangements were last night other than what Mr Terzic said this morning but that seems to me – the Commission wasn't involved in discussions.

PN206

Certainly I left with the impression that there would be some involvement by the unions this morning but that's insufficient for me to make any recommendation on. It's not because I express no view at all about the rights and wrongs and the whole process. The proceedings are adjourned hopefully indefinitely.

<ADJOURNED INDEFINITELY [9.54AM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #T1 COPY OF EMAIL TO MR PROIETTO FROM AMWU PN195