C2008/2390, Transcript of Proceedings [2008] AIRCTrans 174 (22 April 2008)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 18364-1

COMMISSIONER GAY

C2008/2390

s.496(1) - Appl’n for order against industrial action (federal system).
Hawker de Havilland Aerospace Pty Ltd
and
Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union
(C2008/2390)

MELBOURNE

5.17PM, MONDAY, 07 APRIL 2008

PN1

MR C O’GRADY: I seek leave to appear as counsel on behalf of the applicant.

PN2

MR J WIELADEK: I appear for the AFMEPKIU by way of information sir, I have no instructions to appear on behalf of employees of Hawker de Havilland.

PN3

THE COMMISSIONER: Yes, do you say something about Mr O’Grady’s application for leave?

PN4

MR WIELADEK: No sir.

PN5

THE COMMISSIONER: Leave is granted Mr O’Grady.

PN6

MR O'GRADY: Thank you Commissioner.

PN7

THE COMMISSIONER: Perhaps I will – my associate has called on two files that have been received this afternoon. One is your application Mr O’Grady pursuant to section 496 (1) and the other is yours Mr Wieladek which is pursuant to section 709. Which is – now they are both performing, now perhaps Mr O’Grady as to the position that pertains at the moment and then I’ll see what Mr Wieladek says about that and it may be that it will be useful for there to be a conference.

PN8

MR O'GRADY: Yes, thank you Commissioner. Commissioner you would have seen from the application that we’ve filed that there is currently industrial action happening at my client’s premises and that industrial action would on it’s face appear to have been organised by and or threatened by the AMWU. My instructions Commissioner are that in addition to the employees walking off the site this morning, there have been a significant number of employees who have failed to attend for the afternoon shift.

PN9

The percentage varies from part of the plant, but on my instructions in the ongoing, or the primary part of the plant which deals with airbus composites something like 50 per cent of employees did not turn up to perform the afternoon shift. The Commission would be aware from it’s ongoing dealings with my client, that there is also a night shift that is due to commence at 9 pm this evening and the Commission would also be generally appraised of the significant work that my client undertakes and the enormous damage that industrial action of this type inflicts upon my client and obviously its customers. So that’s the
position - - -

PN10

THE COMMISSIONER: What time should the afternoon shift come on?

PN11

MR O'GRADY: The afternoon shift comes on at about 3 o’clock.

PN12

THE COMMISSIONER: So is it right to say in the converse that half those afternoon shift people are presently working?

PN13

MR O'GRADY: Well they turned up, now how many of them are going to stay and perform the entirety of their shift, is hard to know Commissioner.

PN14

THE COMMISSIONER: I want to understand your submission so half did not attend for duty?

PN15

MR O'GRADY: Yes.

PN16

THE COMMISSIONER: And the others came on shift, but you don’t know whether they are still there?

PN17

MR O'GRADY: Well my understanding is I don’t know for sure whether they are still there. As I say it varies from part of the plant to part of the plant, there were some parts of the plant where something more than 50 per cent did turn up Commissioner, but in the airbus composites area, something like 50 per cent did not turn up. If the Commission will excuse me for a moment. Yes thank you Commissioner. So that’s the current position with respect to the industrial action that is occurring at site. The application also makes it clear that there is to be a further stop work meeting tomorrow in which further industrial action is to be discussed.

PN18

So Commissioner my instructions are that we are not averse to the idea of going into conference, clearly we want that conference to move, I suppose move quickly to the point, if I can use that language because delay in itself inflicts damage to my client. If the conference wasn’t going to resolve the matter, then we would be pressing for orders that are the subject of the application. If the Commission pleases.

PN19

THE COMMISSIONER: Yes. That’s likely to be a right I would have thought that inheres in you to some stage.

PN20

MR O'GRADY: Sorry sir?

PN21

THE COMMISSIONER: I say that’s likely to be a right that inheres in you at some point, put your hand and say, you know, pleasurable as this is, we want to be heard.

PN22

MR O'GRADY: Indeed, indeed and we don’t want to be bloody minded about it Commissioner if we can resolve this quickly through discussions we want to do so. But if what we have been confronted with is a delaying tactic on behalf of the AMWU we wouldn’t want to be spending a lot of time going down that path. If the Commission pleases.

PN23

THE COMMISSIONER: Yes, thanks Mr O’Grady. Well Mr Wieladek, I don’t know that – certainly I want to hear anything you want to say, I don’t know that it’s going to be really necessary for you to take up all those points, because it may be that the most practical use of the Commission and the parties time, at least initially is to see if there can be some very positive benefit gained inside a conference, but I don’t want you to think that I don’t want to hear anything that you might want to put, so you can say – you can address, both these files at the moment have been called on, I’m hearing them both.

PN24

MR WIELADEK: Sir I think at this point we prefer it to go into conference and discuss issues there.

PN25

THE COMMISSIONER: Yes, all right, well we’ll take that course now and we’ll go off the record into conference.

<SHORT ADJOURNMENT [5.24PM]
<RESUMED [10.00PM]

PN26

THE COMMISSIONER: The parties have participated tonight in a series of conferences which have had the aim of dealing constructively with the issues which have recently arisen at Hawker de Havilland and which have resulted in a stoppage of work today and the application set out above and by the AMWU and Hawker de Havilland. It has been agreed that the issues relating to the Manfact System sought to be raised by the AMWU will be the subject of further discussions between the AMWU and Hawker de Havilland. Those discussions which will be chaired by the Commission will take place at the earliest convenience of the parties under the section 709 application made by the AMWU.

PN27

The parties have not agreed as to the basis for further dealing for the termination of the employment of Mr Bloom. The AMWU position is that Mr Bloom’s dismissal should be discussed in the section 709 Manfact discussions.
Hawker de Havilland’s position is that Mr Bloom’s dismissal should be dealt with in a conciliation and if necessary determined pursuant to section 643, termination of employment. Hawker de Havilland have requested that their application for orders against section 496 be held over until 2 pm tomorrow Tuesday 8 April 2008.

PN28

Hawker de Havilland have agreed to a 30 minute authorised and paid information report back meeting to occur at 8 am tomorrow, Tuesday 8 April to be addressed by the AMWU state secretary, Mr S Dargavel. As on earlier occasions, the Commission has again tonight urged that full effect be given to the dispute procedure within the Hawker de Havilland Aerospace Pty Limited Port Melbourne Workplace Union Collective Agreement 2007 (the agreement). In the light of these considerations the Commission strongly recommends:

PN29

(1) That Hawker de Havilland employees presently not engaging in industrial action continue to work normally.

PN30

(2) That Hawker de Havilland employees rostered for night shift tonight attend for duty and work normally thereafter.

PN31

(3) That Hawker de Havilland employees rostered for duty on day shift and afternoon shift tomorrow, Tuesday 8 April attend for duty and work normally thereafter.

PN32

(4) That all future grievances or disagreements arising out of the agreement at Fisherman’s Bend be resolved by the parties applying the disputes procedure with recourse to the Commission when an issue of concern to either party arises.

PN33

(5) The Commission reiterates it’s availability to deal promptly with such grievances or disputes of concern to the AMWU, its members or Hawker de Havilland. The AMWU and Hawker de Havilland are requested at the earliest opportunity to bring this statement and recommendation to the notice of all employees whose employment is regulated by the agreement.

PN34

If there is not a resumption of normal work after the authorised report back meeting tomorrow morning, the section 496(1) application for an order against industrial action will come back on for hearing at 2 pm tomorrow, Tuesday 8 April 2008 at 11 Exhibition Street, Melbourne. Any employee bound by the agreement may appear and be heard in relation to the section 496 application and as to whether orders should or should not be made. Should any employee wish to clarify whether the 2 pm 8 April hearing is to occur, contact may be made with my associate on – and the statement of recommendation gives the telephone number.

PN35

I now issue the statement and recommendation. We are adjourning now. I would ask only that the parties advise my associate tomorrow as the day goes on as to the events and it may be of course that it comes back on at 2 o’clock, I hope that is not the case. I now adjourn.

<ADJOURNED ACCORDINGLY [10.07PM]