C2008/3172, Transcript of Proceedings [2008] AIRCTrans 630 (15 October 2008)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 17741-2

SENIOR DEPUTY PRESIDENT RICHARDS

C2008/3172

s.496(1) - Application for order against industrial action (federal system)
Ergon Energy Corporation Limited
and
Communications, Electrical Electronic, Energy, Information, Postal Plumbing and Allied Services Union of Australia Electrical Trades Union of Employees
(C2008/3172)

QUEENSLAND

5.00PM, FRIDAY, 3 OCTOBER 2008

PN1

MR M OSBORNE: I'm from Deacons, appearing on behalf of the applicant, Ergon Energy Corporation Limited.

PN2

MS K INGLIS: I appear on behalf of the CEPU and ETU.

PN3

THE SENIOR DEPUTY PRESIDENT: Thanks very much. This is an application under section 496(1) of the Act seeking an order against industrial action and has nominated and the applicant is Ergon Energy Corporation Limited seeking an order against the CEPU and the ETU, Queensland. Mr Osborne, I understand there have been discussions interim consequent of earlier discussions, but perhaps you can update me as to what the circumstances of the application may now be.

PN4

MR OSBORNE: Thank you, your Honour. Your Honour, firstly can I thank you and the Commission for bringing this matter on so urgently. We appreciate that it's not terribly convenient to do that but unfortunately was necessary in the circumstances. I'd like to also give apologies for the informal dress appearance of some people in the Commission, but casual Friday is rampant today.

PN5

THE SENIOR DEPUTY PRESIDENT: No, that's all right.

PN6

MR OSBORNE: The application, your Honour, arose in such urgent circumstances because following the termination of the annulment of the probation of a probationary employee or Ergon Energy this morning following their failure of a drug and alcohol test conducted by QAL a week or so ago, the two representatives of the CEPU and/or the ETU, in particular one of whom was Mr Peter Simpson who is the Divisional Branch Secretary of the CEPU and I understand the Assistant Day Secretary of the ETU, contacted representatives of my client and informed them to the effect that effectively immediately there were bans in place, such that any members of either the CEPU or the ETU would refuse to enter any site where they were required to submit to a drug and alcohol test.

PN7

The significance of that, your Honour, is that all sites which are - or workplaces which are operated by people or organizations like mine or significant refineries like QAL commonly is a matter of course in order to achieve the highest standards of safety and also to meet their specific legislative obligations, imposes a condition of entry that people entering the site or workplace submit to a drug and alcohol test. My client needs its employees and directs them to enter those sites or workplaces when necessary to undertake work to ensure that supply of electricity is maintained and to, even more urgently, take action when there is a loss of supply of electricity.

PN8

The consequences, if my client's employees, in effect refuse to enter those sites or workplaces, which is what the nature of the ban was, is that in the event that there was a fault or, even worse, a loss of supply, there could be potentially catastrophic consequences economically and, more importantly, from a safety perspective, the areas in which my client provides these services include many mines and also include many refineries and other significant industrial processes where you would know, your Honour, from your first hand experience that any loss of supply not only means that there can be immediate significant economic impact, but also due to the nature of the processes and operations which occur at those sites and workplaces there can be significant safety concerns for the employees at those workplaces and in some cases the surrounding community.

PN9

Now, this ban was imposed in this telephone conversation, or a telephone conversation between Mr Simpson and a representative of my client, Mr Scott Berryman, at approximately a quarter to 11 this morning. An email was forwarded by my client to Mr Peter Simpson confirming what Mr Simpson had told Mr Berryman because Mr Simpson indicated that he would decline to confirm it in writing himself. That email, your Honour, was forwarded by Mr Berryman at approximately five to 2 today. There has been no response - - -

PN10

THE SENIOR DEPUTY PRESIDENT: What time was that again?

PN11

MR OSBORNE: Five to 2 today. As you might imagine, your Honour, having been told of this ban at a quarter to 11, significant discussions ensued within my client and between representatives and steps needed to be taken to get advice as to what the options available were. The email was sent at five to 2. The email, your Honour, and I won't bother handing a copy up, but it confirmed the nature of the ban that was advised verbally. It made note of the significant economics and safety implications and it asked that Mr Simpson, on behalf of the CEPU, immediately reconsider the union's decision to impose this illegal ban and immediately confirm its withdrawal in writing and said that if that did not occur then my client would have no choice but to urgently apply to the Commission to obtain orders to stop the action.

PN12

No response was received to that email. As a consequence we filed this application. There is no justification for the industrial action. It clearly is unprotected. For starters, your Honour, the action isn't in pursuit of any matters pertaining to a proposed collective workplace agreement.

PN13

THE SENIOR DEPUTY PRESIDENT: Can I just ask, apart from the threat, was the ban actuated?

PN14

MR OSBORNE: Well, your Honour, that would appear to be the issue of confusion which arose late today after the application was filed and having had discussions with Ms Inglis from the CEPU and the ETU, a proposal was put forward which will, I believe, resolve this, but I think it's important to put on the record the events which have led to this and which have necessitated the application. It's also important, I believe, to put on the record how clearly the threatened action was unprotected. There was no bargaining period still on foot. As you would know, your Honour, from your own involvement, there was an agreement reached on the collective workplace agreement some weeks ago. That was put to a ballot of employees and approved by a valid majority on or about 15 September and was lodged with the Workplace Authority on 22 September.

PN15

In any event, the nature of the ban had nothing at all to do with pursuing claims in respect of a collective workplace agreement. It's reprehensible for this kind of ban to be even threatened, even if it was not implemented, considering the significant economic and safety consequences that could arise if members of the respondent unions refused to enter the sites or workplaces. Having said that, your Honour, in the period before commencing these proceedings which you generously granted us, I've had discussions with Ms Inglis from the CEPU and the ETU. I understand that Ms Inglis has a matter she wishes to put on the record in relation to the status of the threatened industrial action. I note that in that regard Ms Inglis hasn't been able to produce or talk to Mr Simpson because he apparently has gone on leave shortly after the telephone conversation or the email.

PN16

I will - - -

PN17

THE SENIOR DEPUTY PRESIDENT: That leave though was anticipated prior to the events, though, as I understand it?

PN18

MR OSBORNE: I believe that there was leave scheduled. I don't know when it was due to commence, whether at the conclusion of today or some earlier time. That's correct, your Honour. Your Honour, I'll hand over to Ms Inglis in a moment, but I foreshadow that Ms Inglis has undertakings which, on behalf of both the CEPU and the ETU, she is prepared to put on the record. Those undertakings to my client and the Commission having been made in the terms that Ms Inglis has indicated they will, it will avoid the necessity for you to arbitrate this matter. It will avoid the necessity for us to call Mr Berryman as a witness, although he is prepared and would give evidence to support the background that I have outlined and will avoid the necessity for an order to be made. Thank you.

PN19

THE SENIOR DEPUTY PRESIDENT: Thanks. Ms Inglis?

PN20

MS INGLIS: Thank you, your Honour. Your Honour, firstly I apologise for having taken so long this afternoon getting this matter sorted out. We were - - -

PN21

THE SENIOR DEPUTY PRESIDENT: That's all right. The matter came on urgently and there will always be logistical issues arising, but - - -

PN22

MS INGLIS: Your Honour, as Mr Osborne indicated, it is correct that Mr Simpson is on annual leave and it was a period of planned annual leave and as a result is unable to be in the Commission today to assist with these matters. However I have spoken to Mr Gibbons, who is our Central Queensland organizer, who is involved in discussions this morning and I also have assurances from the Secretary that there are no bans in place at Ergon Energy, there is no industrial action in place or about to occur and as Mr Osborne indicated, I am in a position to give undertakings as to the detail of - or rather, to flesh that out.

PN23

I should indicate also, your Honour, that the matter that was at issue this morning is one which the union fully intended to be the subject of a dispute notification to the Industrial Commission to request a dispute resolution process to take place and it's still our intention to file a notice of dispute requesting the assistance of the Commission so that the issues that were the subject of discussions this morning can be fully conciliated and hopefully resolved between the parties. Your Honour, on behalf of the CEPU and ETU who are both named respondents in this matter, I can indicate that the CEPU and ETU will immediately cease any ban on any member of either union employed by Ergon Energy entering any site or workplace where drug and alcohol testing is required.

PN24

The CEPU and ETU will cease any ban on any member of either union employed by Ergon Energy submitting to or participating in any drug and alcohol testing on any site or workplace where it is required by the person or organization responsible for the site or workplace, the CEPU and ETU will not organize and will ensure that none of their respective officers, employees or agents participate in organizing any bans of that nature by any of their respective members employed by Ergon Energy, and the CEPU and the ETU will immediately do everything that's in their respective powers to ensure that none of their respective members employed by Ergon Energy continue, institute or - sorry, initiate or participate in any bans of that nature.

PN25

Your Honour, as I said, there are no bans in place and those undertakings, I believe, will be sufficient to assure the applicant and the Commission that there are no such bans intended and that we will ensure that no such activities take place.

PN26

THE SENIOR DEPUTY PRESIDENT: So presumably then there is no industrial action threatened and there is none being taken or none that is happening, that's a matter of some contest, I presume?

PN27

MS INGLIS: Yes, your Honour. For the purposes of section 496(1) there is no industrial action happening and there is no industrial action threatened, impending or probable, nor is there industrial action being organized.

PN28

THE SENIOR DEPUTY PRESIDENT: Well, those being the undertakings, the question as to whether or not Mr Osborne and, more importantly, his client derives sufficient comfort from those undertakings to cause them to withdraw the application which would cause me to not make the order or to consider making the order that I'm being asked to make by way of the application.

PN29

MR OSBORNE: Thank you, your Honour, I've just taken some instructions. Your Honour, my understanding is that, and I may have missed it, but I don't think Ms Inglis used the actual words, my understanding is that with respect of the unions just gave a formal undertaking to both the Commission and to the applicant and also that, and it may have been that I missed this part, that the bans, if they are in place, will immediately cease. I might just ask Ms Inglis to confirm that and then I'll respond to the question you've raised, your Honour.

PN30

MS INGLIS: Your Honour, yes. In fact, the first part of the undertaking that I gave was that the two unions, respectively, will immediately cease any ban that may be in place and the second part was that - the first two parts both referred to any bans that would be in place at the moment and the other two referred to the fact that we will not organize or participate in, and the last part was that we will do everything in our power to ensure that this is the case.

PN31

THE SENIOR DEPUTY PRESIDENT: And that these undertakings are given both to the applicant in these matters and to the Commission?

PN32

MS INGLIS: Yes, your Honour.

PN33

THE SENIOR DEPUTY PRESIDENT: Good, thank you.

PN34

MR OSBORNE: Thank you, your Honour. Thank you, Ms Inglis. Your Honour, my client's position is that industrial action at the least was threatened and arguably it was implemented and in that regard I note what I've said earlier about the conversation with Mr Simpson, and I also note that Mr Gibbons, who is one of the organizers that Ms Inglis referred to, was the second person who conveyed the ban verbally to representatives of my client. Having said that Ms Inglis, on behalf of the two respondent unions having given the undertakings she has, the effect of which will be that there will be no bans and any threatened bans are lifted, my client is comfortable withdrawing the application in those circumstances, but obviously with full reservations with rights to take action at a later date if similar wildcat bans are imposed, which impact on supply.

PN35

THE SENIOR DEPUTY PRESIDENT: Well, indeed so, and you've be at liberty to re-apply in those circumstances and there is potential, of course, in these situations for the circumstances in which this matter was resolved to be relevant to any future findings as to, for example, the probability of any future industrial action should it be a matter that is a matter for judgment for the Commission on the basis of any prior history, and it may also effect the deliberations in relation to the duration of any order that might prospectively be made in the future as well.

PN36

MR OSBORNE: Thank you, your Honour.

PN37

THE SENIOR DEPUTY PRESIDENT: Good. Well, on that basis then the application has been withdrawn on the undertakings as provided by Ms Inglis on behalf of both the CEPU and the ETU. There is no requirement there for me to make an order. The matter is therefore adjourned. Thank you, everyone.

<ADJOURNED INDEFINITELY [5.17PM]