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C2004/ 1736 , Transcript of Proceedings [2004] AIRCTrans 589 (13 February 2004)

AUSCRIPT PTY LTD
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Level 6, 114-120 Castlereagh St SYDNEY NSW 2000
PO Box A2405 SYDNEY SOUTH NSW 1235
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TRANSCRIPT OF PROCEEDINGS

O/N 9065
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER HARRISON

C2004/ 1736 

APPLICATION FOR AN ORDER TO STOP
OR PREVENT INDUSTRIAL ACTION

Application under section 127(2) of the Act
by John Holland Pty Limited for an order to
stop or prevent industrial action

SYDNEY

2.35 PM, TUESDAY, 3 FEBRUARY 2004

PN1

THE COMMISSIONER: Could I have the appearances, please?

PN2

MR P. LUDEKE: If the Commission pleases, I seek leave to appear for the applicant and I note the applicant is John Holland Pty Limited, I think, John Holland Engineering was announced as the employer party and that's not correct, so I would ask that that be corrected.

PN3

THE COMMISSIONER: So it should be?

PN4

MR LUDEKE: John Holland P-t-y L-t-d.

PN5

THE COMMISSIONER: Thank you, delete Engineering?

PN6

MR LUDEKE: Yes, please, Commissioner. MR S. SASSE also appears.

PN7

THE COMMISSIONER: Thank you.

PN8

MS S. SULLIVAN: No objection to the appearance of my friend.

PN9

THE COMMISSIONER: You are appearing for the CFMEU, Ms Sullivan?

PN10

MS SULLIVAN: If it please the Commission, good afternoon, Mr Commissioner, I appear for the CFMEU.

PN11

THE COMMISSIONER: Thank you. Thanks, Mr Ludeke, leave is granted.

PN12

MR LUDEKE: Thank you, Commissioner. Commissioner, I'm pleased to say that my client does not press the application today as a result of some discussions that it has been involved in with the CFMEU under the auspices of the Labor Council this morning. Mr Sasse wants to address you as to that and record with you the terms of an understanding reached as a result of those discussions today. For my purposes can I ask that when the Commission records those terms of understanding that you might expedite, if you could, Commissioner, the transcript of today's proceedings so that it becomes available to those involved today and more widely, to members of the CFMEU as necessary, so that they understand that the Commission has had drawn to its attention the basis upon which the parties have come to an understanding today and more particularly, the basis upon which my client does not for the time being press the application.

PN13

Can I also then ask you to, if convenient, list the matter for a report in the week of 16 February and we are open, Commissioner, as to any day in that week. I might just ensure my instructions on that are correct. No, that's correct, Commissioner, at your convenience during the week can I ask now that Mr Sasse reports to you directly on those discussions that he has been involved in.

PN14

THE COMMISSIONER: Thank you. Mr Sasse?

PN15

MR SASSE: Thank you, Commissioner. Just by way of brief background, the contract which we are working under at North Kiama is with the New South Wales RTA, contracts with the State Government are executed under a code of practice. This project is also to receive Federal funding and there's some confusion about which or both codes of conduct that apply to the construction industry, State and Federal apply, there are some slight differences and in some respects, that's the nub of this dispute in terms of what we as the employer can and can't accede to.

PN16

Officers of the company met today with the South Coast officials of the CFMEU who have had carriage of the matter for the union, that meeting was held under the auspices of the New South Wales Labor Council and we agreed the following matters this morning as the basis for this matter being adjourned:

PN17

1) The CFMEU will be conducting a meeting at the North Kiama site at 11.00 am on Wednesday, 4 February. At that meeting the union will recommend an immediate return to work and the lifting of all bans and limitations. Provided that there is a return to work in accordance with this agreement and the meeting doesn't exceed 30 minutes, that meeting will be without deduction of ordinary time earnings. So it will be an authorised paid meeting.

PN18

2) The company will as a matter of urgency, seek clarification from its client as to (a) whether not the Commonwealth Code of Practice applies to the North Kiama ByPass Project; and (b) whether or not in the view of our client the New South Wales Code of Practice for the construction industry allows the establishment of a project productivity allowance after the commencement of the project.

PN19

3) The company will work with the CFMEU to resolve any situation where subcontractors on the project are not complying with awards, enterprise agreements or legislative requirements.

PN20

4) The company and the union will meet on site on Thursday, 12 February 2004 with a view to reviewing progress to date.

PN21

If it is of assistance, Commissioner, either to you or to Court Reporting, those agreed points I have in document form which I can hand up, if required.

PN22

..... : There is no objection to that.

PN23

THE COMMISSIONER: Thank you, Mr Sasse. That was 12 February that you were going to meet again, is that correct?

PN24

MR SASSE: That's correct, Commissioner.

PN25

THE COMMISSIONER: Thank you, Mr Sasse. Ms Sullivan?

PN26

MS SULLIVAN: I have to say, Mr Commissioner, that I don't know a great deal about this dispute, I happened to have been in the Commission in other matters all day and received a phone call that as I was there. Mr Lane and Mr Primmer have been dealing with the matter in Wollongong. Your associate received a call from Mr Lane passing on certain information and frankly, I accept if that is what he says to your associate, I accept that he is saying it to me as well. I can no difficulty in these short minutes of order and to that extent consent to whatever my friend is seeking here.

PN27

Clearly it seems to have been pre-arranged with the Messrs Lane and Primmer.

PN28

THE COMMISSIONER: Thank you. All right, I thank you for that. I will adjourn the matter generally and re-list it for a report back if this is acceptable to the parties, for 2.30 pm on Wednesday, 18 February.

PN29

MR LUDEKE: Thank you, Commissioner.

PN30

THE COMMISSIONER: In the interim we'll ensure that the transcript of today's proceedings is expedited arrives to the parties. Thank you. On that basis these proceedings will stand adjourned.

ADJOURNED UNTIL WEDNESDAY, 18 FEBRUARY 2004 [2.43pm]