C2015/7195, Transcript of Proceedings [2015] FWCTrans 656 (17 November 2015)

TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009 1052685

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SENIOR DEPUTY PRESIDENT RICHARDS

C2015/7195

s.418 - Application for an order that industrial action by employees or employers stop etc.

Lend Lease Building Pty Ltd

and

Construction, Forestry, Mining and Energy Union & Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
(C2015/7195)

Brisbane

11.08 AM, FRIDAY, 6 NOVEMBER 2015

PN1

THE SENIOR DEPUTY PRESIDENT: Good morning, everyone. Please take a seat. If I could take some appearances, thanks.

PN2

MR M BELFIELD: If the Commission pleases, Belfield, initial M, from Master Builders, on behalf of Lend Lease, and with me is Mr Mark Plummer from Lend Lease and Micky Richardson from Master Builders. Thank you.

PN3

THE SENIOR DEPUTY PRESIDENT: Good. Thank you.

PN4

MR A BORG: Your Honour, Borg, initial A, from the CFMEU.

PN5

MS K INGLIS: Good morning, your Honour. Inglis, initial K, for the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union, Electrical Division.

PN6

THE SENIOR DEPUTY PRESIDENT: Good. Thank you.

PN7

MS M DELAWARE: Good morning, Commissioner. My name is Delaware, initial M, and I appear on behalf of the Plumber's Union.

PN8

THE SENIOR DEPUTY PRESIDENT: Good. Thank you, Ms Delaware. That said, Mr Belfield, you best take me to your application.

PN9

MR BELFIELD: Thank you, your Honour. I provided your associate with some notes about a matter I'm about to address on. We're pleased to advise you that the workforce - it did return to normal operations this morning, and as of this point there's no further incident.

PN10

This application and supporting statements was filed on Thursday the 5th seeking an order under the Act, under 418 and 419. The application contends that yesterday, Thursday the 5th, the CFMEU and the CEPU members who are employees of Lend Lease Building and employees of some 52 subcontractors who are presently engaged on the site were identified in the application. They withdrew their labour from the site, and in doing so, engaged in alleged unprotected industrial action on the project. The action caused a complete stoppage of work on the hospital on 5 November.

PN11

Lend Lease Building is concerned that one or more of the unions will organise and undertake similar unpredictable stoppages in the near future. The project is a significant Federal government community project, and I think it was $1.8 billion, your Honour. The delay in its completion caused by this alleged unprotected industrial action is against the interests of creating work opportunities and sustainable employment for the South East Queensland communities, notwithstanding the contractual implications for Lend Lease Building Pty Ltd and its client.

PN12

Your Honour, we seek this opportunity to place the CFMEU and CEPU, its delegates, officers, employees and agents of the unions, employees employed by Lend Lease employed on the Sunshine Coast Hospital, and all the employees of the 52 subcontractors that were listed in the application; put them on notice that such erratic, unpredictable and costly stoppages of a wildcat nature have no place in the modern workplace.

PN13

We stress that stoppages of this nature caused significant damage and destruction with no regard for dispute resolution processes and consultative processes available to employees and unions. We ask permission to arrange a copy of the transcript to be provided to all parties as soon as possible. Your Honour, with return to normal working operations at site today, the required jurisdictional prerequisites will not be satisfied, and we will file a notice of discontinuance for this application. We thank you for your time.

PN14

THE SENIOR DEPUTY PRESIDENT: Does anyone wish to say anything at all? Mr Borg?

PN15

MR BORG: Yes, your Honour. I just want to make a few points, and I think the main point that I wish to make is that we note that the company, through the Master Builders Association, are withdrawing this application. And I note further that the comments made by Mr Belfield were made in the context of not having tendered any evidence, they simply filed an application. Because I do see where Mr Belfield will try and take this, given that what he's trying to do is put us on notice, and we reject that notice.

PN16

What he's trying to do, he's trying to establish a position whereby he can come back to the Commission at a future stage and point to today's hearing and say, "Well, it happened there. It's happening again. We've got a course of conduct, therefore you should place orders on the unions and workers." But I note that no evidence has been received, no evidence has been tested; they have just been vagaries presented to the Commission, and we reject all of that.

PN17

And I just want to address some of the points as well that my friend has made in relation, in particular, to all of these allegations of wildcat conduct and so forth, which we reject. Your Honour, the reason why this application has been pulled is because the jurisdiction hasn't been established on the Master Builders' own material. And the reason why it hasn't is firstly because workers are back at work, as Mr Belfield has raised; but also, as you will glean from their statements that they have filed in the Commission, for whatever they're worth, one can glean from that that at the heart of this issue is a health and safety dispute.

PN18

Now, the reason why I want to get into this, your Honour, is because this is a clear attempt at a misuse of the Commission's jurisdiction. What they are trying to do is to get the Commission to do their dirty work in relation to health and safety by compelling workers in unions back to unsafe worksites. Now, I want to place it on the record, at your indulgence, your Honour, that this site has been a disgrace - an absolute disgrace in relation to health and safety.

PN19

The last time an application came before this Commission in relation to a stop work, the application itself was also pulled; but in the news we hear about a dead body found at that site. But that's not the only thing that has been in the news recently.

PN20

And I raise these matters not as a matter of evidence; these are matters that are of notoriety. There was a recent water tank which tipped and spilled a great deal of water, hazardously, on that site. And your Honour will, of course, remember on at least two occasions, major deck collapses at that site during which tonnes of concrete and steel collapsed, placing workers in danger.

PN21

Now, why I say these things, your Honour, is because I want to place it on the record, and I want to place Lend Lease on notice that they need to be weaned off your teat - and I put that respectfully. They need to be able to manage their affairs properly on their own two feet. They need to be able to do that in a way - in particular, in relation to health and safety - which they have not done.

PN22

Now, health and safety isn't just one of these regular industrial ding dongs; health and safety can mean life or death. So for Mr Belfield come in here and to accuse us of wildcat conduct simply because workers are standing up for their health and safety rights is just beyond the pale. What I further say, your Honour, is that - this goes back to my earlier point: this cannot be relied on in future. This is an abuse of the Commission's processes. It's an abuse of your office.

PN23

I mean, if I had the time, your Honour, I would make an application for costs because so hopeless was this application. And I say not only is it hopeless, but this is the company engaging in this kind of brinkmanship. They feel that they can push workers to the limit with regard to health and safety and come in here and get orders. And while that might be the case because of the jurisdictional complications here - we have to establish that there might be an imminent risk to health and safety - that might technically be able to do that.

PN24

But it's still a right for workers to withdraw their labour in the context of work being unsafe. It's still the right of health and safety representatives to order that work cease were work is unsafe. Now, whilst we might not be in a position - evidentiary or otherwise - to meet the definition of imminent health and safety risks, it still has to be borne in mind.

PN25

And if this application were to go ahead, which it's not; but if it were, what I would be doing is pursuing orders against the company under the 418 jurisdiction here that they meet with HSRs; that they do certain things that they're supposed to be doing; that they perform proper evacuation procedures, because they haven't been doing those things. That's all I have to say. Thank you.

PN26

THE SENIOR DEPUTY PRESIDENT: Thank you. Ms Inglis or Ms Delaware.

PN27

MS INGLIS: Thank you, your Honour. In the first instance we support the comments that Mr Borg has made, particularly in relation to the situation of the serious safety incidents that have occurred on the site over the period of the last few months. We note that the applicant no longer intends to press the application, but the CEPU wishes to place on record that we still hold serious concerns about the condition of safety on site, which has been dealt with by Mr Borg, obviously.

PN28

We also note that the applicant, in respect of our union, did not provide any evidence that the CEPU, its officials, it's delegates, employees or agents, in any way had organised or aided or abetted any industrial action as alleged. So, your Honour, we're also disappointed that this application has come to you, and we will be obviously following up on the site with regard to dealing with those safety issues so that our members are kept safe and the public is kept safe. May it please the Commission.

PN29

THE SENIOR DEPUTY PRESIDENT: Ms Delaware, anything?

PN30

MS DELAWARE: Thank you. Just to start off with, again I would like to support the submissions that my union colleagues have already made in relation to this matter. But the Plumbers Union also reject the notice put forward by the applicant. We would also like to say that in the evidence that has been provided in this application to date there has been no evidence against the Plumbers Union officials or delegates in relation to organising industrial action.

PN31

I have nothing further to say, except that we do reject the notice and hope that the applicant will take safety issues more seriously to prevent such issues recurring in the future.

PN32

THE SENIOR DEPUTY PRESIDENT: Do would come back at all, Mr Belfield - - -

PN33

MR BELFIELD: Nothing, nothing ‑ ‑ ‑

PN34

THE SENIOR DEPUTY PRESIDENT: ‑ ‑ ‑ or you've had your say?

PN35

MR BELFIELD: I have nothing of value to add to this, your Honour. It is advice that I gave earlier, that there was a notice to discontinue, we're not proceeding with this matter. I didn't realise it caused so much unhappiness, but let's - let that be so. Thank you, your Honour.

PN36

THE SENIOR DEPUTY PRESIDENT: Okay. Thanks very much, everyone. This matter is adjourned. And I assume, Mr Belfield, I will obtain a notice of discontinuance over the course of the day.

PN37

MR BELFIELD: Yes, I will file that. Thank you, your Honour.

PN38

THE SENIOR DEPUTY PRESIDENT: Thanks very much, everyone, for your attendance. We're adjourned.

ADJOURNED INDEFINITELY [11.21 AM]