PR950193 PR950193 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 (C2003/6530) Building, metal and civil construction industries VICE PRESIDENT ROSS MELBOURNE, 28 JULY 2004 Application to extend an order to stop or prevent industrial action - whether industrial action probable - discretion - cultural change - further improvement required - additional steps to be taken - not persuaded to extend order at this time. DECISION [1] This decision deals with is an application by Grocon Constructors Pty Ltd (Grocon) to extend an Order 1 made by the Commission on 22 March 2004 (the Order) pursuant to s.127 of the Workplace Relations Act 1996 (Cth) (the WR Act ). The Order took effect at 7.00 a.m. on 23 March 2004 and expired at 7.00 a.m. on 18 May 2004. The Order was accompanied by written reasons for decision 2 , also dated 22 March 2004. [2] In my decision of 22 March 2004 I said, at paragraph 66: "[I]n the event that there is no change in the existing practice on the [Exhibition Street Project] site the term may be extended, on application." [3] The "existing practice" referred to was the persistent disregard shown by the CFMEU's site representatives for the dispute resolution procedures in the relevant industrial instruments and the culture of pressing industrial objectives through unlawful activity rather than agreed process and merit. At paragraph 65 of the decision I said: "It is to be hoped that the order will act as a circuit breaker and assist in bringing about a cultural change at the site such that industrial issues are resolved through the processes specified in the relevant industrial instruments rather than by resorting to industrial action." [4] Grocon subsequently made application for the term of the Order to be extended until the Exhibition Street Project is completed in its entirely. The application is made on the grounds that the CFMEU, its officials, employees and agents, together with the Grocon employees bound by the Order, have "continued their ongoing and long standing pattern of resort to illegitimate industrial action, in breach of the dispute resolution procedures in [the relevant industrial instruments] in defiance of the Order." 3 [5] Grocon relied on the evidence in the earlier proceedings in support of its application. In addition three witnesses gave evidence on behalf of Grocon: Mr Steven Coker, Exhibition Street Project Manager; 4 Mr Manuel Marques, Exhibition Street Project Site Manager; 5 and Mr Joseph Brinzi, Exhibition Street Project Occupational Health and Safety Officer. 6 [6] Two witnesses were called on behalf of the CFMEU: Mr Neil Browne, a Grocon employee and the CFMEU shop steward on the Exhibition Street, Project; 7 and Mr Steven Balta, a Grocon employee and the CFMEU occupational health and safety delegate on the Exhibition Street Project. 8 [7] Grocon contends that the evidence details a continuing pattern of illegitimate industrial action and in these circumstances the irresistible inference is that further industrial action is "probable" . Grocon submits that the following matters favour the exercise of the Commission's discretion in this case: "13 Although the Order has in Grocon's view assisted in stemming the tide of industrial action and prolonged industrial action, it has not yet led to a cultural change. Recently further industrial action has escalated, from short and contained stoppages, to longer stoppages and ongoing bans and limitations. 14 In those circumstances an extension to the Order is warranted. The Order is required to protect Grocon's legitimate commercial and business interests, and will have ongoing utility in addressing illegitimate industrial action. 15 Further, the contempt for the Commission's Order demonstrated by the CFMEU and its officials, agents and members favours the Commission exercising its discretion to extend the Order." 9 [8] Grocon also relies on the matters set out at paragraph 36 of its March submissions. 10 [9] Grocon provided the following chronology of industrial action which has occurred at the Exhibition Street Project since the Order commenced operation 11 : Chronology of Industrial Action at the Exhibition Street Project - March to May 2004 Date Classification of event Event Paragraph reference 26 March 2004 Stop work meeting Messrs Browne, Balta and Setka directed all CFMEU members to stop work and attend a meeting. This meeting went from approximately 9.40am to 10.25am. Third Statement of Steven Edward Coker Pars 10 - 22 26 March 2004 Threat of further action At a meeting with Mr Van Camp and Mr Coker, Mr Setka said to Messrs Browne and Balta, in the presence of Mr Coker, words to the effect that " if Frank Bortoletto comes on site, the men should sit in the sheds ". Third Statement of Steven Edward Coker Pars 23 - 29 30 April 2004 Stop work meeting All workers on site directed to attend a 30 minute stop work meeting convened by Mr Browne. Workers directed to stop work the following day for the May Day Rally. Third Statement of Steven Edward Coker Pars 31 - 33 1 May 2004 State wide stoppage Site stoppage for all workers to attend May Day Rally. Work stopped at 1.00pm for the remainder of the day (until 2.30pm). Third Statement of Steven Edward Coker Par 34 8 May 2004 Alleged safety dispute Mr Balta directed 2 Grocon employees and employees of KGM Concrete Cutting to stop work over alleged safety issue. Approximately 5 hours work lost. 3 subcontractors performing Concrete cutting (approx 5hrs), jack hammering (50mins) and steel fixing works (3hrs 15mins) directed to stop by Mr Balta and Mr Browne, over alleged safety issues. Site safety procedures were not followed. Third Statement of Steven Edward Coker Pars 56 - 66 Alleged safety dispute Mr Balta directed employees of DB Farrell Investments to cease jack hammering works over alleged safety issue. Approximately 50 minutes work lost. Third Statement of Steven Edward Coker Pars 67 - 73 Alleged safety dispute Mr Balta directed employees of A Grade Steefixing to cease work over alleged safety issue. Approximately 3 hours 15 minutes work lost. Third Statement of Steven Edward Coker Pars 74 - 79 10 May 2004 Stop work meeting Mr Browne directed all workers on site to attend a stop work meeting convened at 7.00am, to direct work stoppage later that day. Meeting ran for 20 minutes. Third Statement of Steven Edward Coker Pars 82 - 84 State wide stoppage Mr Browne directed a 2 hour stoppage of all work. Approximately 50% of workers left site to attend rally in support of Mr Craig Johnston charged with criminal offences. The remaining workers sat in the sheds. Third Statement of Steven Edward Coker Pars 85 - 86 11 May 2004 Threat of further action Mr Browne informed Messrs Brinzi and Coker that they would continue to call mass meetings for safety issues rather than address the issues in tool box meetings. Third Statement of Steven Edward Coker Pars 91 - 92 13 May 2004 Alleged safety stoppage/work ban Approximately eight employees of A Grade Steelfixing directed by Mr Balta to stop work at 2.45pm. Work not recommenced as normal until 12.00pm the following day. Third Statement of Steven Edward Coker Pars 108- 110 14 May 2004 Threat of further action Mr Browne said to Mr Marques, words to the effect that " I'll sit the men in the sheds if I see Chris Kotis handling crane slings again ". Third Statement of Steven Edward Coker Par s 111 - 113 [10] I am not persuaded that I should extend the term of the Order. Contrary to the applicant's submissions I am satisfied that the Order has had a positive impact on the culture at the site. Indeed such a finding is consistent with the evidence of the applicant's witnesses. [11] In the course of his evidence Mr Coker was asked how he would assess the impact of the Order. He replied in the following terms: "There was a significant improvement in the conduct of the site from an industrial relations point of view from March through toward the end of April. We didn't have as much lost time or disputation. Toward the end of April there was a marked increase in disputation and stoppages." 12 [12] Mr Marques was also asked about the impact of the order. His response is set out in the following exchange with Mr Skene, counsel for Grocon: "Mr Marques: Well, it was, as far as, maybe it was a good improvement than before. Two months or almost three months we was a lot quieter than it has been - was before and has been lately. Mr Skene: So how are things now? Mr Marques: Could be better. Mr Skene: What do you mean, Mr Marques, could be better? Mr Marques: Is not that we do nothing wrong on the site, and problems are arising every day that people think that we are not doing the right thing on site. Mr Skene: And what happens then? Mr Marques: Well, we just have to follow, we have to stop what we doing, or actually the people involved they stop what the mean are doing, and then we work to go around it to try to find out what is really said to be done." 13 [13] I do not propose to canvass all of the evidence in respect of each of the incidents which are referred to in the chronology set out above. The requirement that industrial action be "probable" involves a degree of subjective evaluation and judgment. I acknowledge that some industrial action has taken place since the Order came into operation. But I am not persuaded that further industrial action is probable. I have reached this conclusion having regard to the particular circumstances which have precipitated the action in each case. [14] Broadly speaking the industrial action in question may be characterised as being in response to one of the following: a State wide issue (e.g. May Day and the rally in support of Mr Craig Johnston); actions taken by Grocon management in breach of an agreement reached with the site safety committee (e.g. the concrete cutting incident - see Transcript at paragraphs 1127-1130); serious safety issues (e.g. the Alimak breaking down and prohibition notices being issued by WorkCover - see Transcript at paragraphs 1156-1162); breach of site health and safety procedures regarding the preparation of JSA's before work starts (e.g. the jack hammering incident on 8 May); interpretation issues associated with the implementation of a new Code of Practice: The Prevention of Falls in General Construction (e.g. the steel fixing incident on 8 May 2003; see Transcript at paragraphs 1238-1244; Exhibits R4 and R7). [15] The circumstances referred to are sufficiently unusual to lead me to conclude that they are unlikely to arise again in the course of the coming months. [16] The CFMEU representatives on site have made a genuine effort to address the issues raised in my decision of 22 March 2004. Further improvement is required but in my view an extension of the Order would not, at least at this point in time, assist in completing the process of cultural change on site. [17] I propose to take the following initiatives to facilitate the cultural change process: 1. Education of on-site representatives :  it is apparent from the evidence that there is still some confusion as to the circumstances in which CFMEU consent is required to work additional hours and about the need for consultation to occur before action is taken in relation to health and safety issues. I recommend that the parties implement an education process in respect of these issues, similar to that referred to in my decision in respect of the RACV Project. 14 2. Report back :  a report back hearing will be scheduled for Tuesday, 24 August 2004 at 3.00 p.m. At that time the parties are to provide a report in respect of the education initiatives they have taken and whether any further industrial action has taken place. [18] I will determine whether any further orders are required in respect of this matter after hearing from the parties on 24 August 2004. At this stage I am not persuaded to grant Grocon's application to extend the Order. Appearances: H. Skene for Grocon Constructors Pty Ltd. J. Maddison for the Construction, Forestry, Mining and Energy Union. Hearing details: 2004. Melbourne: May 25. June 21. Printed by authority of the Commonwealth Government Printer <Price code C> 1 PR944891. 2 PR944890. 3 Exhibit A8 at paragraph 3. 4 See Exhibits A1 and A2. 5 See Exhibits A3 and A4. 6 See Exhibits A5 and A6. 7 Exhibit R8 and R9. 8 Exhibit R1 and R2. 9 Exhibit A8. 10 Exhibit Grocon 7. 11 Exhibit A8. 12 Transcript at paragraph 1077. 13 Transcript at paragraphs 1205-1209. 14 PR950125.