C2008/2001, Transcript of Proceedings [2008] AIRCTrans 50 (6 February 2008)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 18045-1

COMMISSIONER WILLIAMS

C2008/2001

s.496(1) - Appl’n for order against industrial action (federal system).
P&O Ports Limited
and
Maritime Union of Australia, The-Western Australian Branch
(C2008/2001)

PERTH

9.36AM, THURSDAY, 24 JANUARY 2008

Hearing continuing

PN1

MS K REID: I appear on behalf of the applicant.

PN2

MR T BORGEEST: I appear on behalf of the respondent, the Maritime Union of Australia, and with me is MR M BAKER, an official of the respondent union.

PN3

THE COMMISSIONER: Thank you. Leave is granted for counsel to appear in both cases. Yes, Ms Reid?

PN4

MS REID: Sir, we're here today to seek orders pursuant to section 496 of the Workplace Relations Act. What I'll do first is just outline briefly the facts of the matter. I'm then going to identify the relevant provisions of the Act and the certified agreement, and then I will be calling a witness who will give evidence as to the facts that occurred yesterday. Sir, the applicant is in the business of providing stevedoring services. There is a registered agreement registered on
17 March 2006, and there is no industrial bargaining currently on foot in relation to that agreement, so there's been no protected action or any bargaining notices issued.

PN5

Yesterday there was an issue that arose in relation to the unloading of some concrete pipes from a vessel called the Port Angeles. And if I could just explain, sir, that what happens when these vessels is unloaded is that there's a crane positioned on the deck of the vessel, the crane swings into the hold of the vessel, picks up the pipe, swings over the side and puts it in a cradle that is on trucks, and the trucks take the pipes away. And the dispute is about the positioning of the personnel involved in that procedure.

PN6

Now, what the applicant does on a national basis is that there is a hatch man who is a kind of spotter if you like, sir, and what his job is to do is to keep a line of sight with the crane driver and to make sure that the operation is being conducted safely. And if there's anything untoward that occurs, the crane gets out of position, then the spotter can communicate with the crane driver. And Mr Walker will give evidence as to all of this. I just wanted to set the scene and give you some background first.

PN7

And the dispute is basically about whether or not that person should be on the deck of the ship or on the wharf. And, as we understand it, the union's position is that if the person, if the hatch man or the spotter is on the wharf then there's a short point in time where he loses direct eye contact with the crane driver. The applicant disputes that, and WorkSafe seems to have vindicated the applicant's position in that regard.

PN8

Now, what happened yesterday was that an employee, Bill Walker, who was the hatch man at the time, was asked if he would - he took it upon himself to be positioned on the deck of the vessel rather than on the wharf, and he was told to remove himself from the deck of the vessel and place himself on the wharf next to the truck that was receded in the concrete pipes. Mr Walker refused to perform that work as directed and instead he remained on the deck of the ship. Mr Walker claimed that there was a safety issue and he refused to comply with the direction to place himself on the wharf.

PN9

The WA state manager, Mr Staff, was notified of this by the supervisor, and then Mr Staff then asked to meet with Mr Walker. Mr Walker then attended Mr Staff's office with another employee as a witness. Mr Staff spoke to Mr Walker and directed him to carry out the work. Mr Walker refused, and it was indicated to Mr Walker that he'd failed to follow the required procedures in relation to a dispute, he'd failed to follow the required procedures in relation to notifying issues, and that because he'd been warned about these kind of things previously it was going to become a disciplinary issue.

PN10

At that point officials from the MUA arrived on the scene and removed Mr Walker and the other employee from the office of Mr Staff. And then Mr Walker and the MUA officials held discussion with all of the applicants on the site and advised them that they were not required to perform the work as directed by the applicant. So at that point all of the workers on site then refused to work, and that remained the case for the remainder of that shift. So work stopped from that point and did not reoccur for the rest of the day.

PN11

Now, sir, that particular - as I understand it the shift that has commenced work today is currently working as directed, but there is an application listed before the Safety Tribunal this morning in relation to the threat of disciplinary action against Mr Walker. WorkSafe did attend site yesterday and gave approval to the method of work that the applicant was recommending, but despite that there is this application before the Safety Tribunal, so the issue is certainly still live. And because of the fact that the issue is still very much live the applicant continues to have a very real apprehension that further issues will arise.

PN12

And if I could just refer you briefly? We've only just received the application within the last half hour, sir, in relation to the Safety Tribunal proceedings, but if I could quote from the application:

PN13

This has been the result of direct disputation over a safety issue, and the MUA seeks the urgent assistance of the OH&S Tribunal to resolve the matter. There is a great deal of emotion and heat in this issue on the wharf currently and the matter is spiralling out of control primarily due to this issue following three critical safety breaches since midday yesterday.

PN14

So as I say, although the employees, or one of the shifts - as I understand it there's a number of shifts - one of the shifts is actually unloading the vessel as we speak and working as directed, but there is certainly no guarantee of that continuing while this issue remains live.

PN15

THE COMMISSIONER: Sorry, Ms Reid, when is the vessel expected to be unloaded, when is that supposed to finish?

PN16

MS REID: I understand that will happen this morning. The vessel was due to sail last night but because of the delay is currently being unloaded and, all things going well, will sail later today.

PN17

THE COMMISSIONER: So the original application, if I can just refer you to it, filed last night talks about the incident, if I can call it that, with Mr Walker took place whilst the final lift of concrete pipes were being loaded onto a truck? Do I not understand what final lift of concrete pipes means? There's obviously a lot more work to be done unloading if that's continued today.

PN18

MS REID: Sir, that might have been for that truck.

PN19

THE COMMISSIONER: I see.

PN20

MS REID: But there's a hold full of pipes so there's other trucks I imagine that come along, but Mr Staff can probably answer that question better than me.

PN21

THE COMMISSIONER: Okay, thanks.

PN22

MS REID: Sir, so in making this application the applicant relies on section 496(1)(a) and (b) of the Act. There is industrial action that has happened, and certainly, as Mr Staff will indicate, based on past history there is a very real apprehension that this issue will continue to bubble along and cause further disputation. In addition, as I mentioned, there's this concurrent proceeding and the disciplinary action of Mr Walker to be resolved, and obviously depending on how that transpires there is a very real likelihood in the applicant's mind of further industrial action occurring of the same nature that occurred yesterday.

PN23

Now, sir, just briefly I'll just refer you to the relevant provisions of the certified agreement. Do you have a copy of that agreement at all?

PN24

THE COMMISSIONER: No, I do not.

PN25

MS REID: Now, sir, the dispute does not turn on any particular clause of the agreement, but there just are some relevant provisions you should be aware of. The first is, there is an express clause which deals with working as reasonably directed, which is clause 8.4 of the agreement, not that that clause is entirely necessary as that's an implied employment obligation in any event, but the parties saw fit for whatever reason to have that expressly in the agreement.

PN26

The other relevant clause is clause 9 which deals with a union right of entry issue. And the essence of that clause is that the union officials are not required to provide notice, right of entry permit, except in one circumstance where what they are required to do is to notify the applicant of their intended attendance at the site, and then once that permission is granted the visit can proceed. If there's any non compliance with that procedure then the applicant has the right to ask for a right of entry permit.

PN27

The other relevant clause is 9.3.1. Any meetings of employees are supposed to be during their breaks and with minimal disruption to the workplace. And also 9.4.2.2, which is that a union meeting is supposed to go for no longer than two hours and be a meeting which is arranged with company agreement. And that certainly is not what happened yesterday. Now, if you're clear on the background to the matter, sir, I'll now call Mr Staff.

PN28

THE COMMISSIONER: Thank you.

PN29

MR BORGEEST: Excuse me, Commissioner, I just want to raise a matter about the way the application ought proceed, and so before I make any submissions to you - - -

PN30

THE COMMISSIONER: Look, perhaps I'll let Mr Staff sit down. If you'd like to take a seat that's fine.

PN31

MR BORGEEST: Commissioner, there is no industrial action happening and there's no controversy about that. The submissions and foreshadowed evidence about any risk of future industrial action is, with great respect, extremely thin. To the contrary, the matter that's relied on, the union taking an appropriate course and submitting to an appropriate authority to discuss a safety issue without any disruption to work tends to suggest quite the obverse, that the union wants to raise an issue, wants to do it properly, doesn't want to disrupt work, and that in all of those circumstances we submit that it would be fair and can be done within the time allowed for under the Act, but fair for this matter to be stood down, certainly so that the union can focus its energies on the Safety Tribunal matter, but also so that the Commission can be assisted by proper submissions and proper cross-examination of the critical safety incidents in particular which occurred in the lead up to this matter occurring yesterday.

PN32

Commissioner, the position that you would be informed of when I do call evidence would be that the union has not called on anyone to stop work. Mr Walker did not feel safe, that the work was safe if he was taken off the deck of the ship. The crane driver stopped because he didn't have a hatch man assisting him, and that meant that no work could occur with those crane operations, and so the workers came off the vessel. There was no direction from the union in connection with any of that, Commissioner. So in our submission, while we certainly appreciate and respect the duty upon you to deal with these things swiftly, in these particular circumstances justice calls for some opportunity for the case to be able to be presented and dealt with in a proper and orderly way rather than us being put in the position of being in the disadvantage of not being able to assist you with proper evidence and submissions. Thank you, Commissioner.

PN33

THE COMMISSIONER: Mr Borgeest, before you sit down, I agree with one thing you've said, and perhaps with others, we'll soon see, that I am obliged to deal with these things quickly. They have to be heard and determined within 48 hours of being filed in the broad. Now, what timeframes are you talking about? When are you, if I was to agree with what you're saying, going to be able to put your full case?

PN34

MR BORGEEST: We could return before you mid morning tomorrow, Commissioner. And by that time it may well be that the parties have moved significantly to resolve the differences between them, particularly with the assistance of the Safety Tribunal and having had a proper opportunity to consider the views of the safety inspectors and so forth.

PN35

THE COMMISSIONER: Whilst you're on your feet - and I'll, Ms Reid, obviously hear from you in a moment on all of this - the Act in this area means my role is not, or my decision in this is not a discretionary one. If I'm satisfied that industrial action is happening - and you say it's not - or it's threatened, impending or probable or being organised, if it's any of those things on the evidence then I have no choice but to issue an order.

PN36

Now, if we accept for the moment that industrial action is not happening, it may be that the evidence is that it is threatened, impending or probable, is the union willing to, for instance, provide any undertakings that that is not going to be the case? Because those are all future issues if you like, and that requires some judgments to be made by myself as to whether that is going to happen.

PN37

MR BORGEEST: Yes. Based on what I know I can't imagine that there would be difficulty in the union offering some certain assurances consistent with what I've said, namely, that the union hasn't organised or directed anyone to cease work, that it is directing itself to agitating its concerns and the concerns of certain of its members in the tribunal, and that it has no intention whatsoever in interfering with workers doing what they're directed to do, subject to the overriding right they all have at all times to not work where they feel that there's that imminent danger.

PN38

Now, the union is not going to say that no person will perform work if it involves an imminent risk to themselves or to others, can't say that. That would be directing a contravention of the law. But it would certainly be in a position based on what I've been told, and I will seek some formal instructions, to give assurances that it isn't directing anyone to cease work and that it is directing itself to the tribunal. So I can't see that there'd be any difficulties with that, Commissioner.

PN39

THE COMMISSIONER: Thank you, Mr Borgeest. Ms Reid, perhaps if I can put the positive proposition. In effect what Mr Borgeest is saying is give us some more time, let's do this all again tomorrow morning. If I was to consider that request I would be considering this hearing being delayed for 24 hours, that would be about the best I would consider doing. What would the company's position be to that?

PN40

MS REID: There's two responses to that. First of all, if you were minded to grant an adjournment we would like some interim orders. And if the workers are all at work and there is no threat, as my friend is saying, of there being an issue then there's no harm in issuing an interim order until the matter can come back before you tomorrow. So that gets us through today's proceeding and the Safety Tribunal and any things that arise out of that.

PN41

And secondly, sir, I suppose the real difficulty that I have with this is that these matters are always urgent, and if there was a serious and imminent risk to safety it would be a very easy matter to produce evidence of that on very short notice. There are plenty of people in court today that could give that evidence. And that is really the key issue, is whether these employees have a real apprehension as to an imminent risk to their safety. That is not difficulty to prove. It doesn't require a lot of notice to be able to call a witness to stand there and say I was worried about my safety because of blah blah blah. Okay, that is the key point. Mr Walker just needs to get in the box and say what happened and explain why that then warranted the entire workforce going out on strike.

PN42

THE COMMISSIONER: Whilst I accept your view that an employee can give that evidence, I suspect the debate then is, was that a reasonably held belief? And that in itself can become a complicated contest I suspect.

PN43

MS REID: Well, in some circumstances, yes. But you've heard about the basis of this dispute. It's about a crane taking things out of the hold, over the side, putting them down again, and whether the fellow should be on the deck or on the wharf. There's nothing obviously dangerous about that, and it's not an issue where any lay person can immediately say I can see that there's an issue that that might be a little bit unsafe. So we're in the position where as far as we're concerned it's completely spurious, and there would need to be some evidence called today to change our view otherwise we're going to be back tomorrow hearing the same evidence that you could hear today.

PN44

What we haven't heard is Mr Borgeest's view as to who is it that he would call as a witness who he can't call today, you know, what are the issues that he needs t call evidence on that he can't call from the people present today? That's the bit that I'm very unclear on, and I don't think the matter should be adjourned until that issue is addressed. As I said, if you were minded to give an adjournment then we would ask for interim orders to be made to get us through till tomorrow.

PN45

THE COMMISSIONER: Help me understand, Ms Reid. This dispute, is it centred solely on the unloading of this particular vessel?

PN46

MS REID: Yes. That's the first I've heard of any other safety issues. There's no reference to those others issues in the other application.

PN47

THE COMMISSIONER: The point I'm making is that if industrial action isn't happening at the moment, and that seems to be the case from what both sides are saying to me, then if the unloading of that vessel is soon to be concluded today, the issue of industrial action being threatened, impending or probable is a future issue which assumedly only arises when this vessel or a similar vessel with the same unloading process comes back into port.

PN48

MS REID: Sir, it's a much bigger issue - - -

PN49

THE COMMISSIONER: So I'm trying to get to grips with what's the problem with us adjourning until tomorrow?

PN50

MS REID: Sir, as I understand it the vessel continues to be unloaded as we speak. This is a practice that goes on nationally in all of the ports.

PN51

THE COMMISSIONER: Yes. I'm not interested in the merit of whether this application is going to be granted or not. What I'm trying to get to grips with is, the vessel, the subject of the dispute, is currently being unloaded, there's no industrial action in place at the moment. Once that unloading is complete it would seem that, if you like, the source of the dispute between the parties, perhaps temporarily for the next period of time, is removed. Doesn't that lend support to what Mr Borgeest is saying?

PN52

MS REID: No, sir. And Mr Staff is prepared to give evidence just on that point if need be because I've taken extensive instructions from him this morning. What is it that's making you concerned that this issue is going to blow over? And it's the application that is on foot, and I read in the union's own words, the heat over the issue that is still felt, and the fact that Mr Walker's disciplinary action is still to be determined. So if we don't have an order we are at risk of the matter spilling over again. That is the concern that the applicant has.

PN53

Perhaps if that concurrent proceeding wasn't going ahead the concerns may or may not be allayed. But the point is the issue is still very live in the union's mind obviously, and therefore we have no - it's not as though they've - I suppose I'll contrast the situation, sir. Say for instance if there'd been a safety issue, there was a short stoppage, WorkSafe came out and said work can recommence, work recommences and life goes on. It's not that scenario. It's that scenario plus the fact that in the employees' and the union's mind it is still a very live issue.

PN54

They haven't accepted what WorkSafe has said. They have lodged an application to have the matter heard by the Safety Tribunal. So it is still a live issue. And in a situation where, by their own description, there is quite a lot of heat around it, the applicant has a very real concern that that will result in further stoppages. For instance what if, when the proceedings get underway, the union wants to report back to the members. Are they going to stop work for that report back to happen in relation to this matter, in relation to the other matter? On yesterday's form that is quite likely. Those are the kinds of things that the applicant's concerned about, and on past behaviour the concerns on those issues are very real.

PN55

THE COMMISSIONER: Ms Reid, is it your intention to call anybody from WorkSafe?

PN56

MS REID: No, sir. And that is only because the work is continuing today, that workers on the vessel are performing, so I'm assuming that the workers that are there today at least are accepting the comments that WorkSafe made yesterday. And I was actually anticipating that my learned friend might be calling them as well, sorry, if there was any issue as to ongoing safety. But as far as we're concerned that issue had been resolved. The issue is live in the union's mind but not in the applicant's mind.

PN57

THE COMMISSIONER: Ms Reid, I'm trying to, if you like, balance the - I understand the concept that in the longer, let us say months, because assumedly this vessel or another may return, but if this matter is not resolved between the parties then there can be an argument that an order's required because the unwillingness to accept WorkSafe's view for instance means that industrial action is threatened, impending or probable, there's an argument there. My point of course is that's an argument that we can comfortably deal with tomorrow, which is what Mr Borgeest is proposing.

PN58

What I'm struggling with a little bit is why there is a necessity between today and tomorrow to deal with this matter if work is progressing as normal. The best I think your submissions covered was the possibility of report back meetings or something like that. Now, I would have thought those sorts of issues could be dealt with by some undertakings you might want to discuss with the union.

PN59

MS REID: Sir, my general difficulty with undertakings is that - and particularly in this case, is that the union can provide an undertaking, but the employees were out and had stopped work before the union got involved, so there's no - and Mr Borgeest has indicated that the union didn't tell anyone to stop work. So on that basis an undertaking given by the union is not going to be effective necessarily in terms of what the employees may or may not do.

PN60

The second problem I have is that Mr Borgeest's comments about a possible undertaking were very much predicated on the basis that the order would not be effective if there was a real and imminent risk to health and safety. Now, that is the key issue that's at the crux of it. So any undertaking, if they're gong to take the position that that doesn't apply in a situation where the employees have that apprehension, then that undertaking is not worth anything to the applicant, with respect. Because that is what this whole case is about, whether or not an employee reasonably had an apprehension for his safety.

PN61

THE COMMISSIONER: But, Ms Reid, even if I issued an order at this moment it still has to have that caveat on it.

PN62

MR BORGEEST: ..... applied for, your Honour.

PN63

THE COMMISSIONER: Well, the Act requires it in effect.

PN64

MS REID: It does, sir, and that's why, that is the reason why if you were minded to grant an adjournment I would like interim orders, because then Mr Borgeest's issue is taken care of in the order.

PN65

THE COMMISSIONER: Okay. And this is what I propose to do. Thank you, Ms Reid. I'm going to briefly adjourn for 30 minutes. At the conclusion of that, Mr Borgeest, one of two things I'll suggest happens. Either over that period you have had discussions with Ms Reid and the company and been able to provide them with satisfactory undertakings that they accept and agree to an adjournment. If that is not the case then I would like to hear from you what undertakings you're willing to give to the company and to the Commission on transcript here this morning, and when I've heard those I will decide whether or not an adjournment will be granted or whether or not we will continue our proceedings in half an hour. On that basis the Commission is adjourned for 30 minutes, thank you.

<SHORT ADJOURNMENT [10.10AM]
<RESUMED [10.40AM]

PN66

MR BORGEEST: Thank you for the opportunity, we have made good use of it we believe. I can inform the Commission that there's some terms of an assurance that the union can offer which I'm informed are acceptable to the applicant, so there should be no issue for the Commission to determine. The applicant has expressed the preference that rather than that assurance just standing as between the parties that it ought be reflected on transcript, and that's what I propose now to do.

PN67

Commissioner, on behalf of the union I can offer this assurance. That during such adjournment of the hearing of the application as may be granted by the Commission on the union's application, the union will not organise, procure, agree to or engage in industrial action as that term is defined in the application, and subject to the exclusion at paragraph 4.1 - I'll just pause there, Commissioner. That's the exception concerning the imminent risk et cetera. Resuming. The union will not organise, procure, agree to or engage in industrial action against the applicant. Two, it will confine any report back to employees to authorise break times and otherwise in accordance with the certified agreement. And thirdly, where any safety issues arise in the meantime the union will recommend that employees follow established safety dispute resolution procedures of the applicant.

PN68

Commissioner, that's what's offered and we've been informed is acceptable. And of course for the union's part we've offered that to give some comfort for the purposes of getting the adjournment we've sought, and we say that entirely without any admissions that the union has engaged in any industrial action or otherwise breached any requirement upon it. But the assurance has been given, we've been told that it's satisfactory, and on that basis we do seek the adjournment that I addressed you on earlier, Commissioner.

PN69

THE COMMISSIONER: Thank you, Mr Borgeest. Ms Reid?

PN70

MS REID: Yes, sir, we do consent to an adjournment on that basis.

PN71

THE COMMISSIONER: Thank you. It's my intention then to adjourn. I had foreshadowed I think a 9.30 start as we programmed for this morning. Does anybody have any difficulties with that particular timing? There would have to be good reasons as to why I'd fiddle with it, but I don't want to box you in to a particular time.

PN72

MS REID: I don't, sir, no.

PN73

THE COMMISSIONER: Mr Borgeest?

PN74

MR BORGEEST: Look, I think it would be unseemly for me to press further, Commissioner.

PN75

THE COMMISSIONER: Nobody likes unseemly, Mr Borgeest.

PN76

MR BORGEEST: But I'd take the bird in the hand.

PN77

THE COMMISSIONER: Very good, all right. On that basis this matter will be adjourned until tomorrow morning at 9.30 am, and at that time will proceed to be dealt with. Thank you.

<ADJOURNED UNTIL FRIDAY 25 JANUARY 2008 [10.43AM]