C2008/2605, Transcript of Proceedings [2008] AIRCTrans 367 (21 July 2008)

TRANSCRIPT OF PROCEEDINGS

---

Workplace Relations Act 1996 18749-1

COMMISSIONER BLAIR

C2008/2605

s.496(1) - Appl’n for order against industrial action (federal system).
Skilled Group Ltd
and
Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union and The Australian Workers’ Union
(C2008/2605)

MELBOURNE

9.39AM, THURSDAY, 03 JULY 2008

Hearing continuing

PN1

MS L MUMME: I seek leave to appear on behalf of Skill Group Limited, together with MR P BOROBOKAS from the company.

PN2

MR J WIELADEK: I'm instructed to appear on behalf of the registered organisation the AFMEPKIU.

PN3

MR L BUNTMAN: I appear on behalf of the Australian Workers Union. I ..... amendment to appearances Mr M Borowick was listed to appear in this but it's no longer the case.

PN4

MR E QUIGLEY: I appear on behalf of the Australian Building and Construction Commissioner, who has given a notice of intervention in this matter, Commissioner.

PN5

THE COMMISSIONER: Yes, thanks Mr Quigley, I've received that notice.

PN6

MR QUIGLEY: It was a short notice. I was unable to provide notice in advance to the parties to this matter, Commissioner.

PN7

THE COMMISSIONER: Thank you. Mr Wieladek and Mr Buntman, do you have any objections to Ms Mumme seeking leave.

PN8

MR WIELADEK: No, sir.

PN9

MR BUNTMAN: No.

PN10

THE COMMISSIONER: Thank you. Leave is granted thanks, Ms Mumme.

PN11

MS MUMME: Thank you, Commissioner. Yes, Ms Mumme?

PN12

MS MUMME: Thanks, Commissioner. Commissioner, the applicant seeks an order under section 496 of the Act to prevent further industrial action by Skilled employees at the Viridian Glass site at Dandenong. I understand that the Commission as presently constituted has some background in the matter. The parties are respondent to the Skilled Group Limited Metal and Associated Industries Labour Hire Agreement 2006-2009, which is clearly still in operation.

PN13

With effect from yesterday afternoon the AMWU, AWU and employees engaged at the Viridian Glass site have engaged in overtime bans. The overtime ban is unprotected action within the meaning of the Act. Commissioner, an application obviously has been served and filed, and the jurisdictional criteria, as the Commission is aware, are reasonably limited under the current legislation. The jurisdictional criteria being that Skilled in operation a current certified agreement that is read in conjunction with the Metal Industry Award from which the hours of work provisions are applicable. It contains, as the Commission is no doubt aware, the standard reasonable overtime provisions.

PN14

At Viridian Skilled employees are engaged to work 10 hour shifts. Two of those hours per day are rostered overtime hours. This has been the case since the commencement of the project some months ago. As a consequence of the ban on overtime the project is at serious risk of falling behind schedule. It's a limited project that my client is engaged in at this site. The Commission, as I have mentioned earlier, is aware of the underlying issues of this dispute. I'm instructed that the overtime ban commenced yesterday after employees were addressed by Craig Kelly from the AMWU and Michael Borowick from the AWU. Obviously we are planning on calling evidence to that effect.

PN15

We will submit and do submit that the industrial action falls within the definitions set out in section 421A and B of the Act, and Skilled is a person affected by the action under section 496(4) of the Act. I'm happy to go into evidence, Commissioner, if you consider it appropriate at this stage. Obviously we submit that once it appears to the Commission that the industrial action is happening the Commission doesn't - then the Commission must issue an order that it stop. Commissioner, I do propose to call James McKee, who is a supervisor, Skilled supervisor engaged at the site, and perhaps if the unions want to put anything at this stage.

PN16

THE COMMISSIONER: Thanks Ms Mumme. Yes Mr Wieladek?

PN17

MR WIELADEK: Sir, thank you. The AMWU disputes much of what Ms Mumme has put to the Commission, but what we may suggest now that may be beneficial for both parties, if we engage in a conference to discuss the issues on a without prejudice basis. That's something that the unions extend to Skilled and Skilled's representatives. If the Commission pleases.

PN18

THE COMMISSIONER: Mr Buntman?

PN19

MR BUNTMAN: Yes, Commissioner, we would be of the same basis. We think also we take the view to go into conference and have a discussion about the issues prior to the formal aspects taken, and thrash out what's actually happening or what is going to happen and what can be done, and then we can then make our submissions.

PN20

THE COMMISSIONER: Ms Mumme?

PN21

MS MUMME: Well, Commissioner, the Commission is more than aware that these proceedings - that this matter arises really out of a matter that was before the Commission. Skilled's position is quite clear. We came here in good faith, we tried to, under a dispute notification, there have been various discussions between the parties about this matter. We're happy to continue discussions but we won't do so in the guise of an overtime ban, as simple as that.

PN22

THE COMMISSIONER: What the Commission will propose to do at this point is adjourn for five minutes. My associate will take Mr Wieladek and Mr Buntman into a conference room. I think there's one attached to this court. And the Commission will just have a few words with Mr Wieladek and Mr Buntman, and then it will reconvene. So we'll stand adjourned for five minutes.

<SHORT ADJOURNMENT [9.46AM]
<RESUMED [10.25AM]

PN23

THE COMMISSIONER: Right, thank you for that. Ms Mumme, do you wish to proceed please with your witness?

PN24

MS MUMME: Thank you, Commissioner. I call James McKee.

<JAMES RONALD MCKEE, SWORN [10.26AM]
<EXAMINATION-IN-CHIEF BY MS MUMME

PN25

THE COMMISSIONER: Thanks Mr McKee. Mr McKee, the microphone before you is simply for recording purposes, it's not for amplification, so if you could speak up thanks?---Certainly, yes.

PN26

MS MUMME: Thanks, Commissioner.

PN27

Mr McKee, can you state your full name and work address please?---James Ronald McKee, the address I work from is 850 Whitehorse Road, Box Hill. The current site address that I'm on is 95 Queen's Road, Dandenong.

PN28

And can you tell the Commission your current occupation and current position?
---I'm the manager for shut down services with the Skilled Group, or Skilled Services Group, and I'm currently project managing the Viridian Pilkington site.

PN29

Thank you. And, Mr McKee, can you give the Commission some background about that project between Skilled and Viridian?---There's a number of projects that we have running with the current project. There's a refurbishment of a furnace and bath, a removal and reinstallation of a ..... section, which is a ..... section which is a ..... line and the removal and installation of a cutting line which is conveyor systems.

PN30

And, Mr McKee, when did Skilled commence on the Viridian Glass at Dandenong?---We commenced some of the initial preparation work in the end of February, effectively on site I think in the mid to end of March.

PN31

And how many employees are Skilled currently employing to the site?---Around 84, 85.

PN32

Thank you. Now, Mr McKee, can you explain to the Commission what happened commencing at about lunchtime yesterday when the parties, as I understand it, some parties returned from the Commission to the site?---Yes. I was advised by my manager Mr Claude Ceceomancini earlier on in the morning that Mr Kelly, Craig Kelly from the AMWU would be attending the site to have a report back meeting. The call came through about 20 past 12 that there was a visitor at the reception area. I went to reception to pick the visitor up, which ended up being Michael Borowick from the AMWU. We stayed there for a little - for a short space of time. I tried to contact Mr Kelly. His phone just went to voicemail. We then waited a little longer. About a quarter to one Mr Kelly arrived. He was - we were to proceed to the rear of the building or the rear of the site for a meeting with the rest of the troops. It was drizzling at the time and the road closure, the road to the rear of the site was closed so we gained access to the site from the rear entry via by the rear car park. At that stage I left Mr Kelly and Mr Borowick and Mr Rex Christie, the local AMWU shop steward, to conduct their meeting.

**** JAMES RONALD MCKEE XN MS MUMME
PN33

And you weren't present for that meeting?---No. I was initially talking with one of the other supervisors about 20 metres away and asked to move away.

PN34

And you saw employees attend that meeting?---Yes, I did.

PN35

And can you estimate how many employees were at that meeting?---In excess of 70 that I could see.

PN36

Thank you. And following - so did you go back to that meeting at any stage, or what happened at the conclusion of that meeting?---No. The supervisor I was talking with over a separate matter, we went into the building then to have a look at a specific issue, then went back to our office area which is probably 50, 60 metres away, stayed there for a short period of time, around five past one walked out to see if the meeting had concluded. It was still going. I made a call to Mr Borobokas to request some information about whether it would be a paid meeting or not, and the suggestion was around about 10 past one go out and give them a bit of a wind up indication. Another call came in at the same time so I left the office about quarter past one, walked out to the site, gave them a tap on the watch and a bit of a wind up signal. Went back into the office and waited. Around 1.30 Mr Kelly, Mr Borowick and Mr Christie came back into the office.

PN37

Into your office?---Into the office, correct, to ask whether it would be a paid meeting or not. We were quite pressing about whether it would or wouldn't be a paid meeting. My suggestion to them was that at the quarter past interval it probably would have still been paid, but I would seek some further counsel from Mr Borobokas or Mr Ceceomancini regarding whether it would be a paid meeting or not, was still quite pressing on that issue, and left the office saying, well, okay, you've made the decision, it's not a paid meeting. At that stage I'd received a call back, or just after I received a call back from Mr Borobokas to say that it would be a paid meeting. I went out to see the delegates again and suggested to them that it would be a paid meeting.

PN38

And who did you inform? When you say the delegates who do you mean by that?
---Mr Kelly and Mr Borowick.

PN39

And what happened from there, Mr McKee? You obviously went back out to inform - do you tell the Commission you went out to advise them that it would be a paid meeting. Did they then - - -?---Yes, they had a brief chat with the guys again.

**** JAMES RONALD MCKEE XN MS MUMME
PN40

Were you present for that discussion?---Not actually present for it but not too distant away, probably about 30 or 40 metres away, let them have their privacy.

PN41

THE COMMISSIONER: Sorry, has someone got a mobile phone turned on? It might be on silent, but if they've got a phone on can they turn it off please. It's interfering with the transcript. Thank you.

PN42

MS MUMME: Sorry, Mr McKee?---I then, due to the current site arrangement we have on site, we have to escort the visitors on and off, so I escorted Mr Kelly to the rear turnstile.

PN43

Did you have any discussions with Mr Kelly?---No And then proceeded to walk Mr Borowick back to the front entrance gate where we had some brief discussions, and I just asked the question about what the resolutions were or what had come out of the meeting.

PN44

And what did Mr Borowick say?---He indicated that he couldn't really divulge too much, it was more or less for Mr Kelly or one of the other fellows would advise us what the position would be.

PN45

So this was approximately 1.30 as I understand it?---Yes, but it was after probably quarter to two by that stage, 1.30, quarter to two.

PN46

Right. Can you explain to the Commission what then happened. You had some discussions with some employees?---Sure. After returning Mr Borowick to the front gate, or to Mr Gedding, because he had a meeting with Mr Gedding from Viridian, walked back to the site, walked to the site office, and along the way come across some of the fellows returning from the meeting that were working at the cutting line, and just asked what the resolution - what resolution had come out of the meeting or what had transpired. The first fellow that I spoke to had suggested that he really couldn't tell me too much or he couldn't really divulge too much, but there was effectively no overtime would be worked.

PN47

And did you have any other discussions with employees during the course of the day?---Yes. I then went up to see some of the other supervisors. One of the other supervisors was talking with Rex Christie, the shop steward, and he indicated at that stage - well, Mr Rex Christie walked off, so I'd spoken to the other supervisors, I said basically what was that about? And he said, he indicated that there was some overtime - overtime wouldn't be worked at that stage.

**** JAMES RONALD MCKEE XN MS MUMME
PN48

Sorry, overtime would be or wouldn't be?---Wouldn't be worked at that stage. And the discussion around how much it was going to cost the fellows to be not working overtime.

PN49

And, Mr McKee, can you explain to the Commission what time your employees usually finish work?---Generally around 5.30.

PN50

And what time did they finish work yesterday?---3.30 and 2 o'clock.

PN51

And can you explain to the Commission what happened at 2 o'clock and then 3.30?---Yes. We'd asked some of the other employees who I'd circulated around to ask what had gone on in some of the other areas. Some of the fellows were unhappy that they were missing out on overtime effectively, but were - two of the groups that I'd spoken to were in fear I guess, it's not the right word, but they didn't really want to go against the meeting of what had taken place.

PN52

And so did all the employees leave at 3.30, or that was for the group that left earlier?---There was a group that left earlier. The people that are working in the bath area start at 6 o'clock and they finished at two.

PN53

And what time would they normally finish?---They would have gone through till four.

PN54

And then at 3.30 the rest of your employees?---Yes. Some of the people who are working in the area go through till four and some go through till six, because it was either a 10 or a 12 hour shift.

PN55

Right. And, Mr McKee, have you met Mr Kelly and Mr Borowick previously?
---Yes.

PN56

And have they had some dealings on the Viridian Glass site?---Yes.

PN57

And they're known to you as being the representatives of your employees on site?
---Yes, they have.

PN58

Thank you. I have no further questions, Commissioner.

PN59

THE COMMISSIONER: Thanks Ms Mumme. Mr Wieladek?

**** JAMES RONALD MCKEE XN MS MUMME
PN60

MR WIELADEK: Commissioner, I have no questions at this point.

PN61

THE COMMISSIONER: Okay, thank you. Mr Buntman?

PN62

MR BUNTMAN: Thank you, Commissioner. Obviously the association has filed witness statements ..... we haven't had a chance to look at any of the evidence presented by Mr McKee, so we'd obviously have to wait for a transcript and reserve our right to cross-examine when the material is provided at a later date.

PN63

THE COMMISSIONER: Okay, thank you. Ms Mumme?

PN64

MS MUMME: Commissioner, well, in response to that, you know, we're talking about a limited period of a day in which there's some evidence of overtime. I would have thought that the AWU was at liberty to seek instructions between yesterday afternoon and today as to the fact of an alleged overtime ban as we've set out in the application. So my client is not prepared to delay pressing this application on the basis that the AWU says it requires time to examine the evidence. It's a fairly straight forward piece of evidence. If the Commission is inclined to allow the AWU that opportunity we would press for an interim order.

PN65

THE COMMISSIONER: Okay. Any further questions of Mr McKee?

PN66

MS MUMME: Not by me, Commissioner.

PN67

THE COMMISSIONER: No, thank you. You can step down thanks Mr McKee.

<THE WITNESS WITHDREW [10.39AM]

PN68

THE COMMISSIONER: Ms Mumme?

PN69

MS MUMME: Commissioner, there was a draft order that was obviously attached to the application that was filed yesterday afternoon. We have re-drafted that order in accordance with some more recent authority of the Commission, and a copy was sent through to your chambers earlier today.

PN70

THE COMMISSIONER: Mr Buntman?

PN71

MR BUNTMAN: Can I just ask a question? I have a document ..... one includes an order for substituted service which doesn't appear executed by this Commission.

PN72

THE COMMISSIONER: It has been.

PN73

MR BUNTMAN: It has been, thank you.

PN74

MS MUMME: Commissioner, the draft order that I've just handed up is in accordance with the more recent authorities of the Commission, particularly a TWU decision which, as the Commission is aware, follows on from the authorities of the Full Bench of this Commission in the HSUA decision relevantly picking up on the matters that were before the Full Court in the TWU decision. Commissioner, the order seeks that both the union parties and the employees as set out in clause 2D be bound by the terms of this order. We have provided a three month period or term of this order which is, we say, appropriate given that my client's contract is due to finalise, as I'm instructed, towards the end of September. We say a three month period is appropriate in that situation.

PN75

The other parts of the order are fairly self explanatory. We set out in there the appropriate service in clause 5, that is, by facsimile on the Victorian branches of the unions, and then sufficient service on the employee if such service is effected on the unions, and a copy of the order placed on relevant noticeboards. Commissioner, I have no further submissions to make other than to say that in the circumstances of the evidence, which is that there is an overtime ban, that the Commission must issue the order that such overtime ban and industrial action stop. We press that the order be issued as a matter of urgency.

PN76

THE COMMISSIONER: Thank you. Mr Wieladek, do you wish to make any submissions?

PN77

MR WIELADEK: If I may just have a very brief moment to confer with my friend at the bar table?

PN78

THE COMMISSIONER: That's fine, thanks.

PN79

MR WIELADEK: Thank you, Commissioner. Firstly, that the AMWU seeks to make it clear that it makes no admission or concession as to any of the submissions or evidence led or made by Ms Mumme this morning. The AMWU also adds that an order should not issue on the basis of the evidence before the Commission today. There is no evidence that directly or indirectly we say implicates a registered organisation in any of the matters that Ms Mumme has alleged. The Commission has accepted that the standard of evidence should be applied in these sort of situations is that in the Briginshaw test, that if serious consequences may follow from a particular decision of a court or tribunal that then an appropriate caution should be weighed to the accepted of the quality of evidence the decision relies upon.

PN80

In this case the evidence really relies upon Mr McKee's discussions with an unnamed employee. The employee isn't named, he isn't present, he wasn't brought as evidence. It was open to Ms Mumme to do that. That didn't occur. We say consequently on that level of strength of evidence that the Commission cannot be satisfied in accordance with the Briginshaw test to issue an order. If the Commission is minded in the alternative to issue an order, we would say that there are matters that can be for further submission and for further evidence that could change the way or perhaps affect the way the Commission may make a decision in this, and it would be appropriate that an interim order should issue if it was found that the jurisdictional prerequisites have been met.

PN81

In addition to this, if an order in the terms that Ms Mumme has sought, the Commission is minded to make, we would just note that the initial draft order that I was given this morning, but I understand was sent yesterday afternoon or yesterday evening, says that the period of the order will be for a period of eight weeks. Now that's moved to three months. If a full order was made we would say that the shorter period would be appropriate. At this point I can't add any more due to the very quick nature of these proceedings being brought on. I don't have complete instructions in this and am unable to lead contrary evidence, but I imagine that that may be the case if I was able to go through all the evidence of the people present at the meeting or otherwise. If the Commission pleases.

PN82

THE COMMISSIONER: Thank you. Mr Buntman?

PN83

MR BUNTMAN: Thank you, Commissioner. We would agree with the submissions made by my colleague from the AMWU and oppose any order at this point, but in the event that an order is made that the order be an interim order until such time as the parties have had an opportunity to seek instructions from those persons and seen proper evidence and submissions to that effect, to give the Commission the liberty to make that ..... and to also make the difference in length of those orders, in the two draft orders provided in, we say, in the event that an order is issued, the shorter period. If it pleases the Commission.

PN84

THE COMMISSIONER: Thank you. Ms Mumme?

PN85

MS MUMME: Commissioner, it's a very short submission, that is, that I don't accept that the unions have not had the opportunity, as I've said earlier, to seek some instructions in relation to this matter, as they've both had the opportunity to cross-examine Mr McKee and didn't do so. In that situation we say that the evidence is uncontested and we seek that the order be issued.

PN86

THE COMMISSIONER: Thank you.

PN87

MR QUIGLEY: Commissioner, I'd like to make some submissions if I could too.

PN88

THE COMMISSIONER: I was just about to cut you off at the knees Mr Quigley, indicating that the Commission wouldn't be seeking submissions at this point from the ABCC.

PN89

This is an application under section 496(1) of the Workplace Relations Act. The application seeks orders from the Commission on the grounds that 496(1) says if it appears to the Commission that industrial action by an employee or employees or by an employer that is not or would not be protected action (a) is happening or (b) is threatened, impending or probable, or (c) is being organised, the Commission must make an order that the industrial action stop, not occur or not be organised.

PN90

Evidence has been provided by Mr James McKee who is manager for shut down services for Skilled Group Ltd. That evidence goes to conversations with some employees who have advised either Mr McKee directly or other supervision employed by Skilled Group Ltd there are overtime bans in place. That advice appears to have been vindicated by employees who would normally be scheduled to cease work at 5.30 pm, ceasing work at 2.00 pm and 3.30 pm.

PN91

The Commission has been advised that the employees' terms of their contract whilst working on this project operate a 10 hour shift, two of those hours are of overtime. The Commission is satisfied that there is industrial action in place, that industrial action is by way of overtime bans. The Commission has heard the submissions on behalf of the unions that they require additional time in order to present some submissions and gather further information.

PN92

The Commission will at this point issue an interim order in the terms sought by the employer. That order will take effect as from noon today, that is, Thursday,
3 July 2008, however the only variation to the order will be that the order will remain in place until 5 pm on Friday, 18 July 2008. That is to allow the Commission to hear full submissions at 9.30 am on Thursday, 17 July 2008. At that point it will either determine that the interim order shall be a full and proper order or it shall revoke the order, depending on the evidence before it. Are the parties clear on the Commission's view?

PN93

MS MUMME: Commissioner, I assume that the provision for the service of the order on both the unions and the employees will stand as put in the draft order provided?

PN94

THE COMMISSIONER: The only variation to the order is the length of the interim order Ms Mumme. Everything else will be in accordance with the draft.

PN95

MS MUMME: Thanks, Commissioner.

PN96

THE COMMISSIONER: The Commission will stand adjourned until 9.30 am, Thursday the 17th.

<ADJOURNED UNTIL THURSDAY 17 JULY 2008 [11.05AM]

LIST OF WITNESSES, EXHIBITS AND MFIs

JAMES RONALD MCKEE, SWORN PN24
EXAMINATION-IN-CHIEF BY MS MUMME PN24
THE WITNESS WITHDREW PN67