PR950827 PR950827 Download Word Document AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION Workplace Relations Act 1996 s.127 (2) application to stop or prevent industrial action Grocon Constructors Pty Ltd (C2004/4878) Building, metal and civil construction industries COMMISSIONER WHELAN MELBOURNE, 13 AUGUST 2004 Alleged industrial action at the RACV project site DECISION [1] This is an application under section 127 (2) brought by Grocon Constructors Pty Ltd which seeks the making of orders effecting the Construction, Forestry, Mining and Energy Union (CFMEU), its officials, employees and agents and a range of subcontractors and their employees engaged on the RACV Project site. [2] The application was lodged on 30 July 2004, two days after Ross VP had issued an order binding the CFMEU and Grocon employees engaged on the RACV Project site but declined to extend such an order to subcontractors engaged on the site on the basis that he was "not satisfied that industrial action by the employees of subcontractors is probable" ( PR950125 , paragraph [36]). [3] Grocon called two witnesses: Mr Skinner, the Project Manager for the site and Mr Green, the Grocon Occupational Health and Safety Officer for the site. Both of these employees also gave evidence before Vice President Ross. [4] The CFMEU called two witnesses: Mr Callipari, principal of Keystone Installations Pty Ltd and Mr Wilson, director of Asset Interiors Pty Ltd. Both companies have current certified agreements with the CFMEU. Background [5] The company seeks the order on the basis that industrial action by the employees of contractors engaged on the RACV site is probable. Grocon cited the following as the basis for this contention: On Wednesday 21 July 2004, five employees of Keystone Installation Pty Ltd ceased work for approximately 30 minutes at the direction of Sam Sposito (CFMEU shop steward). (ii) On Wednesday 28 July 2004, two Stilcon Holdings employees were sent home by Mr Sposito because of inclement weather. This matter was later not relied upon as the company became aware that the two employees concerned, who were actually employees of Melbourne Site Services Pty Ltd (MSS), had been allowed to leave the site by a MSS foreman. (iii) On Thursday 28 July 2004, the CFMEU called a meeting of Asset Interiors Pty Ltd employees which involved approximately 54 men to discuss overtime issues. It went for between 1 and 1 1/2 hours. (iv) On Friday 30 July 2004, Mr Sposito and Mr Cody (the CFMEU occupational health and safety representative) called a meeting of about 100 employees of both Grocon and subcontractors on the site which lasted approximately twenty minutes. [6] The company also seeks to rely on the evidence before Ross VP in C2004/3617 which is referred to by him at paragraphs [32] and [33] of his decision [ PR950125 ]. The evidence The 21 July incident [7] The company's evidence in relation to this consisted principally of conversations between Mr Green and Mr Sposito. Apart from those conversations, it appears from the evidence of Mr Green and Mr Callipari that the following occurred. [8] Mr Callipari and his men were installing a curtain wall next to some temporary toilets. They were having difficulty in getting the curtain wall to sit down into the rebate. Mr Callipari removed some chipboard in order to assist in fitting the wall and in the process exposed some bearers. Mr Sposito observed what was happening and told them that the bearers were a trip hazard and they were to stop work until it was fixed. [9] Mr Callipari said, "OK, that's fair enough" . He and his workers stopped until a Grocon carpenter had rectified the problem. Mr Callipari was not wearing a watch but thought that the work was stopped for about ten minutes. [10] Mr Green and Mr Gelsumini had two conversations after the event with Mr Sposito. The conversations as reported by Mr Green were characterised by aggressive rudeness on the part of Mr Sposito and a disregard by him for the appropriate processes for the handling of safety issues. It should be noted that Mr Sposito is not an authorised occupational health and safety representative and that Mr Cody, the CFMEU occupational health and safety representative, declined to become involved. [11] On 2 August 2004, Mr Skinner rang Mr Callipari to ask him whether Keystone "had authorised its employees to stop work on 21 July 2004" . Mr Skinner stated that Mr Callipari, "informed me that Keystone did not authorise the stoppage" and that, "Sam stopped the men working" . Mr Callipari could not recall exactly what he said to Mr Skinner but he did not say, "I did not authorise the men to stop working" . He did say that, "Sam told the men to stop working because he (Mr Callipari) had pulled the plywood off and it was a tripping hazard" . The 28 July incident [12] Mr Skinner gave evidence that he was notified at around 1.15 p.m. on 28 July 2004 that the CFMEU had called a meeting of Asset Interiors employees. Present on the site were Mr Oliver, CFMEU Assistant Secretary and Mr Setka, CFMEU Organiser. [13] At around 2.15 p.m., Mr Ismailoski, the CFMEU deputy shop steward, asked him to attend a meeting with Messrs Oliver, Setka and Sposito. The following exchange occurred (paragraph 30 of Exhibit G1): "Mr Oliver: We had an issue with Asset Interiors workers regarding the working of overtime and Saturdays. I've spoken to Alan Wilson [Director of Asset Interiors] and reached an agreement with him. Myself: Do you require anything from me? Mr Oliver: No, it has been sorted out with Asset Interiors Management. Mr Setka: I am helping Grocon by arranging for the plasterers to work overtime." [14] On 2 August 2004, Mr Skinner rang Mr Wilson the director of Asset Interiors to ask him whether Asset Interiors has authorised its employees to participate in the meeting. Mr Wilson informed him that he had not. [15] Mr Wilson gave evidence that he spoke to Mr Griffith, his on-site supervisor during the course of the meeting on 29 July. He spoke to him again on site following the meeting. Mr Griffiths did not tell Mr Wilson that he had authorised the meeting. He assumed that Mr Griffiths had approved a request for the meeting to be held. Mr Griffiths did tell him that he told Mr Setka after the meeting that it would probably be paid for. Normally if a supervisor did not approve a request for a meeting he would call him (Mr Wilson) straight away. [16] At the time of the hearing, Mr Griffiths was off work due to ill health. The 30 July meeting [17] Late on 29 July 2004 an incident occurred where a small metal object - later identified as a part from a plumbing fixture - was either dropped, dislodged, thrown or otherwise put into motion and landed within five metres of an employee of MC Labour Services. No member of the Safety Committee was available at the time and the worker reported the incident the following morning. [18] Mr Green was informed of the incident by a leading hand. He approached Mr Cody, the CFMEU safety representative and Ms Garbett, the CEPU safety representative to investigate the incident but they were not available at the time so he went with another employer representative to inspect the site. The investigation was unable to ascertain how the object fell, where it fell from or how the incident occurred. The object bounced after landing but did not hit anyone and the only worker in the vicinity did not see anyone. [19] Mr Skinner stated that Mr Green notified him of the incident saying that it appeared that the object has been thrown over the side of the building. Mr Skinner gave evidence that when he approached the area with Mr Green and Mr Gelsumini, Mr Sposito was already interviewing the employee who had witnessed the incident and insisted that he was to take part in the investigation. Mr Sposito was informed that he was not a member of the site safety committee but he insisted that he would participate. [20] Following the interview Mr Sposito informed Mr Skinner that there was going to be a mass meeting about the issue. Mr Skinner told Mr Sposito that he could not hold a mass meeting and that the matter would be dealt with by the safety committee. [21] At about 1.00 p.m. Mr Sposito and Mr Cody called workers to a meeting following the lunch break. Mr Skinner approached the two union representatives and told them that the meeting was unauthorised and that the incident from the previous evening was not such as to necessitate a mass meeting. Mr Cody disagreed saying the incident was a "serious near miss" which, in his opinion, justified having a meeting of the workers and explaining what happened. He requested that Mr Green attend. Mr Skinner refused to allow Mr Green to attend saying that he did not consider it necessary to have a meeting. [22] The meeting went ahead and lasted about twenty minutes. Following the meeting Mr Cody informed Mr Green that he had told the meeting that the Grocon occupational health and safety officer had refused to attend and he was going to report it to Worksafe. [23] It was apparent from the questioning of Mr Skinner and Mr Green that there is a heightened concern about occupational health and safety arising from a failure by management to report an incident in August 2003 when a dumpster which was being used to pour concrete dislodged in a lift overrun falling about two metres. [24] Mr Green also referred in his evidence to a previous incident where an object from the site was found in the street and it was suspected that it might have been thrown or dropped from the building. The issue had been dealt with at the next toolbox meeting. These are held on a weekly basis. Submissions [25] The applicant submits that the evidence discloses that the culture on the RACV site, referred to by VP Ross in his decision [ PR950125 ] dated 28 July 2004, of obtrusive industrial behaviour by the CFMEU and its officials has continued and has involved action by the employees of the subcontractors on the site. It is submitted that in the light of the evidence the Commission should conclude that further industrial action by the CFMEU and the employees of subcontractors is "probable". [26] All of the subcontractors that would be subject to the order have current enterprise agreements with the CFMEU. They all contain dispute resolution procedures which require that work continue as normal while the dispute is dealt with. [27] Grocon is a party directly affected by the industrial action. It is not necessary that industrial action be occurring provided the Commission is satisfied that it is probable. The nature of probability has been addressed in decisions of the Commission ( CFMEU v CBI Constructions Pty Ltd [Print R1748]; and Coal and Allied Operations Pty Ltd v AMWU (1996) 73 IR 311) and the level of satisfaction necessary can be gauged from decisions such as Australian Securities Commission v Deloitte Touche Tohmatsu (1996) 138 ALR 655 and Coal and Allied Operations Pty Ltd V AIRC (2000) 174 ALR 585. [28] On the issue of discretion Mr Skene referred to the reasoning of Ross VP in his decision [ PR950125 ] and to a number of other decisions of the Commission. He pointed to His Honour's finding of a long history of industrial action on the site which amounted to a culture of immediate resort to industrial action. There is no evidence that such a pattern will not continue. The same people who Ross VP found to have shown a persistent disregard for the dispute resolution procedures in the Grocon agreements have continued to behave in that way. [29] The applicant relies upon three factors - the employees of subcontractors being directed to cease work and participate in industrial action; evidence of the continuing attitude of the CFMEU representatives to their obligations under the Occupational Health and Safety Act and relevant dispute procedures; and the existence of the order of Ross VP which places the CFMEU at risk of being found in breach if they involve Grocon employees in any stoppages. [30] Mr Skene submitted that the Commission should draw the inference from the failure of the CFMEU to call either Mr Sposito or Mr Cody that their evidence could not have assisted the CFMEU's case. He referred to the uncontested evidence of conversations between the company's witnesses and Messrs Sposito and Cody in support of the ongoing willingness of those men to resort to industrial action instead of following appropriate procedures. He submitted that the conduct was very serious and warranted the intervention of the Commission. [31] Mr Skene submitted in relation to the various incidents raised in evidence that there was insufficient evidence for the Commission to draw the conclusion that the stoppages were authorised. Further, based on the evidence before the Commission and the failure of the CFMEU to call relevant witnesses, the Commission should draw the inference that they were not authorised. Subsequent payment does not amount to authorisation. Mr Skene referred to the definition of industrial action in section 4 of the Workplace Relations Act 1996 and to the decision of Ryan J in Independent Education Union of Australia v Canonical Administrators, Barkly Street, Bendigo 157 ALR 531 at 551. [32] On the general issue on the drawing of inferences, Mr Skene referred to the decision of the Full Bench in Smith and ors v Moore Paragon Australia Ltd [ PR915674 ]. [33] The CFMEU submitted that while there was no strict onus of proof the applicant can be said to bear the onus of satisfying the Commission that an order should be made ( Coal and Allied (1997) 33 IR 331 at 318). [34] Further there is no industrial action occurring, threatened, pending or probable on the site. [35] The company has cited a number of incidents which it says are examples of industrial action. The matter involving Stilcon is instructive. The applicant starts off by alleging that the fact that two employees went home was industrial action. They then come back and it is clear that the shop steward conferred with a representative of the company, in compliance with the inclement weather provisions of the Melbourne Site Services certified agreement and we can only conclude that it was agreed that the two employees should leave the site. [36] In relation to the other incidents, we have had here representatives of the companies who did not seek to be involved in this application. Without consultation with those companies the applicant made this application. Grocon is not seeking to resolve disputes but to create disputation by the seeking of this order. [37] The evidence of Mr Wilson was that he believed that the person who was in charge of supervising the workers on the site approved a request from the union for a meeting to be held. The evidence of Mr Skinner was that he was told that the meeting was to get more overtime worked and that the issue was settled with the company. [38] In relation to the Keystone matter, the union submitted that the question of authorisation should be looked at in the context of the day-to-day operation of a construction site. Mr Callipari and his workers were having some difficulty with a job. Mr Callipari removed some chipboard. The shop steward saw what he believed to be an unsafe work practice and pursuant to the enterprise agreement took action to stop it. Mr Callipari could have either directed his workers to continue working or agree that they should stop work while the rectification occurred. He chose the latter and the job was delayed for ten minutes. That is all entirely consistent with clause 10 of the Keystone certified agreement [AG821030 PR926775 ]. [39] None of those incidents amount to industrial action within the terms of the Workplace Relations Act 1996 . There was no evidence in relation to any specific contractor of a pattern of industrial action. [40] Mr Wainwright described the remaining incident as a "site toolbox meeting" . The falling of an object from the building is a very serious issue which ought to be investigated. The confidence of workers on the site in the safety procedures and the company's representatives was very low due to an earlier serious incident. [41] The union health and safety representative believed that there should be a site-wide toolbox meeting on the issue. For some reason the company refused to have a site meeting and refused to participate in the meeting organised by the union. The meeting was convened to follow the lunch break and was only of twenty minutes duration. The Commission should characterise the meeting as protest action rather than as industrial action. [42] On the issue of jurisdiction, should the Commission consider the site toolbox meeting to be industrial action, Mr Wainwright submitted that Grocon Constructors had not established itself to be a party affected by the action. It is not the employer of labour on the site. It has not shown how any action has affected it. There is no evidence of any loss suffered by Grocon Constructors. [43] Mr Wainwright submitted that Ross VP had not been satisfied that industrial action by employees of subcontractors on the RACV Project site was probable and nothing since then should convince the Commission that the situation is now different. An order will not contribute to the settlement of any industrial dispute which may exist and is only likely to create an entirely poisoned environment. [44] The CFMEU has enterprise agreements with all contractors on the site who employ CFMEU labour and the union is committed to the implementation of those agreements and to the procedures contained in those agreements. [45] In reply, Mr Skene submitted that it is only where there is an immediate risk to health and safety that a stoppage of work is justified. Grocon Constructors is clearly a party effected. The CFMEU is interfering with the work of contractors. The contracts are between those contractors and Grocon Constructors. The Workplace Relations Act 1996 does not require that Grocon Constructors be a party to an industrial dispute. It just requires that there be an industrial dispute and industrial action in relation to it. A dispute between a union and a contractor about overtime can be an industrial dispute about which industrial action occurs. [46] The order sought is not about underlying disputes but about behaviour. Section 127 is about industrial action. There are established processes and they have not been adhered to by the CFMEU. There is no evidence that the CFMEU will adhere to those processes. The CFMEU officials have acted completely oppositely from the way Mr Wainwright says they are committed to behaving. Conclusions [47] The Commission only has the power to issue a section 127 order if: (a) industrial action is happening, threatened, impending or probable; and (b) that industrial action is in relation to: an industrial dispute; or the negotiation or proposed negotiation of an agreement under Division 2 of Part VIB of the Workplace Relations Act 1996 ; or work that is regulated by an award or certified agreement; and (c) the application is brought by a person who is likely to be affected by the industrial action. [48] In this matter the applicant contends that industrial action is probable and relies upon a number of incidents which it characterises as industrial action to sustain that contention. [49] Industrial action is defined in section 4 of the Workplace Relations Act 1996 . The applicant characterises each incident as involving, "the performance of work in a manner different from that which it is customarily preformed, or the adoption of a practice in relation to work, the result of which is a restriction, limitation, or a delay in, the performance of the work, where the terms and conditions of work are prescribed by a certified agreement or the work is performed, or the practice adopted, in connection with an industrial dispute". [50] Further the applicant contends that the actions are not subject to the exclusion contained in part (e), "action by employees that is authorised or agreed to by the employer of the employees" . [51] The applicant relies on a pattern of action to establish that further action of a similar kind is "probable". [52] Three incidents are relied upon by the applicant. In relation to the first of these evidence was given by Mr Green and Mr Callipari. Evidence of a conversation after the event, between Mr Skinner and Mr Callipari was also given. [53] The work in question is subject to the Keystone Installations Pty Ltd and CFMEU Building and Construction Industry Collective Bargaining Agreement 2002-2005 [AG821030 PR926775 ]. Clause 9 of that agreement deals with a general dispute resolution procedure and clause 10 deals with safety dispute resolution. [54] Mr Skene referred to the decision of Ryan J in IEU v Canonical Administrators , to submit that in order for the evidence concerning the events of 21 July to escape from the definition of industrial action, the onus lay on the union to establish that there was an "unequivocal indication that compliance with the employer's prior directions was no longer required" . [55] The events of 21 July 2003, on my view of the evidence, do not show a refusal by employees to perform work as directed by their employer. Mr Callipari may have been a bit vague about some of his evidence but he is clearly not someone used to forensic cross-examination. I accept that events must be judged in their context which is the day-to-day operations of a busy building site involving a number of different contractors and employees. [56] The Workplace Relations Act 1996 excludes from the definition of industrial action that which is "authorised or agreed to" by the employer. "Authorise" is defined by the Macquarie Dictionary as: " 1. to give authority or legal power to; empower (to do something). 2. to give authority for; formally sanction (an act or proceeding). 3. to establish by authority or usage: authorised by custom" . [57] "Agree" is defined as: " 1. to yield assent; consent. 2. to be of one mind; harmonise in opinion or feeling. 3. to live in concord or without contention; harmonise in action. 4. to come to one opinion or mind; come to an arrangement or understanding; arrive at a settlement. 5. to be consistent; harmonise. 6. to be applicable or appropriate; resemble; be similar. 7. to be accommodated or adapted; suit. 8. to correspond in inflectional from, as in number, case, gender or person. 9. to concede; grant. 10. to determine; settle" . [58] However you look at it, Mr Callipari may have been misled by Mr Sposito's role in relation to occupational health and safety matters, but he did agree that his employees should cease work while the problem of the exposed bearers was rectified. I do not accept the submission that Mr Skinner's evidence of his conversation with Mr Callipari should be preferred as it is inherently implausible that the words used by Mr Skinner would have been used by Mr Callipari in such an exchange. [59] I am not satisfied that the action by Mr Callipari's employees amounted to industrial action. [60] The second incident involved the employees of Asset Services. There is no doubt that these employees ceased work for over one hour in relation to issues concerning the working of overtime. For part of that time they were involved in discussions with the site representative of their employer. Mr Wilson, while he was clear that he personally did not authorise the meeting, stated his belief that his local site representative had agreed to the meeting. [61] Mr Skene contends that I should accept that the incident involved industrial action by employees in relation to an industrial dispute. The evidence of their employer however does not contend that the incident was `industrial action' and any dispute which may have existed was resolved between the employer and its employees. [62] I accept that payment for lost time is not, in itself evidence that the action was authorised or agreed to by the employer. In this case however we have evidence of the employer's belief that his on-site representative had agreed to the meeting and to payment for it. Mr Wilson did not seek or support the making of an order against his employees. He did not notify a dispute concerning the issue of overtime. [63] While the stoppage on 29 July had the appearance, in other respects, of industrial action in the light of evidence that the employer accepted that his representative had agreed to the meeting I have difficulty in concluding that it amounted to industrial action for the purposes of the Act. [64] The final incident was the stoppage on 30 July 2004 which involved both Grocon employees and the employees of contractors on site that day. [65] Neither Mr Callipari nor Mr Wilson suggested that they had agreed to that stoppage although both of them understood that the meeting involved a safety issue. The enterprise agreements covering Keystone Installations Pty Ltd [AG821030 PR926775 ] and Asset Services Pty Ltd [AG822462 PR928932 ] contain safety dispute resolution procedures. In neither case do these procedures appear to have been followed nor does it appear that the procedures of clause 20 - Safety dispute resolution procedure, of the Grocon Victorian Enterprise Agreement 2002-2005 [AG822238 PR928606 ] were followed. [66] Despite Mr Wainwright's characterisation of that action as "protest action" I am satisfied that it meets the definition of industrial action under the Workplace Relations Act 1996 . Further, I am satisfied that such action was in relation to work that is regulated by certified agreements. [67] Grocon Constructors is the applicant in this matter. It is not the employer of labour on the RACV Project site. It is the entity with whom the contractors engaged on the site have their contractual relationship. There was no evidence of the extent to which any action involving the employees of contractors impacted upon Grocon Constructors. That, in my view, however goes to the issue of discretion and not to standing which I am satisfied that the applicant has. Discretion [68] It is not possible, nor is it appropriate, to divorce these proceedings from those before Ross VP and which resulted in the making of orders by him on 28 July 2004 [ PR950157 ]. In those proceedings Grocon produced evidence of a litany of incidents concerning stoppages on the site involving actions, in particular, by Mr Sposito and other officials and representatives of the CFMEU. Some, albeit limited, evidence was produced of actions involving employees of the contractors. It was not sufficient to convince His Honour that industrial action by employees of contractors was probable. [69] Once again, the evidence before me is limited. Further, in relation to two of the three incidents referred to I am not satisfied that industrial action has occurred. There is however another plank to this application and that is the attitude of the relevant CFMEU representatives. [70] Evidence of conversations, in particular with Mr Sposito, concerning all of the incidents including the one upon which the company did not seek to rely was not challenged. [71] The evidence included statements such as the following: in response to a statement by Mr Skinner that, "You can't have a mass meeting" , Mr Sposito answered, "I don't care, I'm calling a mass meeting anyway" ; in discussion with Mr Green about the Keystone issue (at paragraph 12 of Exhibit G3): "12. At or around 9.45 am, Mr Gelsumini and I again approached Mr Sposito and an exchange to the following effect took place: Myself: "Sam, can you explain to us why you stopped the Keystone workers from working ?" Mr Sposito: "If you'd fucking open your eyes and do your job you would know why." Myself: "I called you as soon as I found out about the Keystone workers being directed to stop work. I didn't appreciate your tone during that conversation. When I asked your reasons for stopping the Keystone workers from working you just said that if I open my fucking eyes and did my fucking job then I would know. You then told me on the phone to `get fucked' and hung up on me. " Mr Sposito: "I'll tell you now to get fucked as well." Myself: "If you're going to stop men from working, they must be exposed to immediate danger or at risk of disease." Mr Sposito: "Where did you get that bullshit from ?" Myself: "It's part of the OH&S Act." Mr Sposito: "Where did you get these bullshit regulations, they must be your own or Grocon have made up rules for themselves, I don't give a fuck what you do. I will stop anybody, anytime I want. Come up to level 2 now and let's have a look." [in an aggressive tone] Mr Gelsumini: "Relax. Let's just discuss this in a civil manner."" ; and in discussion with Mr Green about the Silcon/MSS employees: "16 An exchange to the following effect took place upon Mr Sposito entering the Shop Steward's Office: Mr Sposito: "I've sent two Stilcon Holdings employees home because of inclement weather." Mr Gelsumini: "You can't do that without first consulting with Grocon Management." Mr Sposito: "I don't care, I've done it anyway". Mr Gelsumini: "There is work for them on Level 2." Mr Sposito: "I don't care, put that in your report." Mr Gelsumini: "Don't worry, I will."" [72] Mr Sposito appears to have taken upon himself a role which he is not empowered to perform under the Occupational Health and Safety Act and has done so, in the case at least of the 30 July meeting, without complying with relevant enterprise agreement provisions. Moreover he has sought to involve employees of contractors in these actions. [73] I am satisfied that in the absence of some restraint being imposed on the actions of the CFMEU, its officials and agents further interference with the work being performed by contractors and their employees is probable and that I should exercise my discretion to, in effect, extend the order of Ross VP to cover such actions. [74] In the absence of any support for these applications by the contractors and the limited evidence of unauthorised action by their employees however I am not prepared to make such an order binding upon them. [75] The order will operate until 23 September 2004. This term may be extended on application should there be no improvement in the conduct and attitude of CFMEU representatives on the site. BY THE COMMISSION: COMMISSIONER Appearances: H. Skene with C. Cook for Grocon Constructors. R. Wainwright for the Construction, Forestry, Mining and Energy Union. Hearing details: 2004. Melbourne: August 5, 6. Printed by authority of the Commonwealth Government Printer <Price code C>