BARCLAY MOWLEM CONSTRUCTION LTD, THORNLIE RAILWAY STATION ANDBRIDGE STRUCTURAL WORK PROJECT CERTIFIED AGREEMENT 2004-2005 ANDCONTRAVENTION OF SECTION 170MN

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES MARCUS THOMAS CLARKE

CLAIMANT

-v-

MICHAEL POWELL, WALTER VINICIO MOLLINA, THE CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION OF WORKERS

RESPONDENT

CORAM INDUSTRIAL MAGISTRATE W.G. TARR

DATE THURSDAY, 28 APRIL 2005

FILE NO. M 237 OF 2004

CITATION NO. 2005 WAIRC 01509

REPRESENTATION 

CLAIMANT MR A D LUCEV (OF COUNSEL) AND MS MC CASH (OF COUNSEL)

RESPONDENT MR T J DIXON (OF COUNSEL) AND MR TR KUCERA (OF COUNSEL)

REASONS FOR DECISION

1         The Claimant in these proceedings is an inspector appointed pursuant to section 84 of the Workplace Relations Act 1996 (the Act).  He has brought this action against the Respondents claiming the Respondents are in breach of the provisions of section 170MN of the Act in that they were engaged in industrial action contrary to the terms and conditions of a certified agreement.  The agreement was made pursuant to the provisions of section 170LL of the Act which provides for what is commonly called a pre-start agreement.

2         The agreement was made between Barclay Mowlem Construction Ltd (Barclay Mowlem) and the First Respondent, the Construction, Forestry, Mining and Energy Union (the union) and is titled the Barclay Mowlem Construction Ltd, Thornlie Railway Station and Bridges – Structural Work Project Certified Agreement 2004-2005 (the agreement).  It was certified by Deputy President McCarthy of the Australian Industrial Relations Commission on 26 May 2004 and came into operation from that day and remains in force until 1 July 2005.

3         It was intended by the parties to the agreement, and is provided therein in clause 1.5, that the agreement:

“shall stand alone and operate to the exclusion of any other Federal or State awards, orders or agreements that would otherwise apply had it not been for the making of this Agreement.”

4         Clause 1.6 under the heading “No Extra Claims” provides:

“This agreement is made in full and final settlement of all claims in relation to this project and the parties shall not make any further claims for the period of operation of the Agreement.  The parties agree that the wages, allowances and employment conditions set out in this Agreement cover all circumstances, conditions and disabilities associated with the Project.”

5         Notwithstanding the provisions of clause 1.6 and the agreement therein that the wages, allowances and employment conditions set out in the agreement covered all circumstances, conditions and disabilities associated with the project, it is apparent from the evidence that within a short time after the commencement date of the agreement there were three provisions of the agreement that at least the employees wanted to vary.

6         Firstly, there was the issue of redundancy.  Clause 2.10 generally provided for the payment of $60.00 per week ($65.00 with effect from 1 December 2004) where the redundancy was occasioned otherwise than by the employee.  The employees wanted the redundancy provision payable to those employees who left of their own accord and they wanted redundancy contributions for all employees to be paid into the Western Australian Construction Industry Redundancy Fund Ltd.

7         Secondly, the employees were not happy with the inclement weather provisions of clause 6.5.  They wanted the same inclement weather conditions that were provided for in clause 21 of the National Building and Construction Industry Award 1990.

8         The third issue was the special project allowance provided for in clause 3.7 of the agreement.  Clause 3.7 provided for an allowance of $110.00 per week as follows:

“Notwithstanding that the site allowance provided for by this agreement covers all general disabilities and special circumstances arising from construction activities on site, an amount of $110.00 per week worked will be paid as a Special Project Allowance provided, however, pro rata entitlements will be calculated as detailed below.”

9         The clause goes on to provide:

“For the purposes of pro-rata entitlements, the allowance applicable shall be calculated at the rate of $22.00 per day, Monday to Friday inclusive.”

10      In respect of the special project allowance, it was the employees’ position that they should be paid an extra $22.00 for their work on Saturday, which was a normal working day, and the same amount if required to work on a Sunday.

11      Dispute resolution procedures are provided for in clause 4.5 as follows:

“Where any questions, disputes or difficulties arise, the provisions of this Section shall be applied in resolving the matters.  Provided always that work shall continue in the usual manner without loss of time or wages and without bans or limitations so as to allow the steps below to be followed:”

12      Seven steps are listed progressing from step one where the employee or his elected job representative raises the matter with the immediate supervisor for resolution, through to step seven where the matter is referred to the Australian Industrial Relations Commission:

“for assistance which may include the Commission exercising its conciliation and arbitration powers with respect to the interpretation and determination of any dispute arising under this Agreement.  The decision of the Australian Industrial Relations Commission shall be accepted by all Parties subject to legal rights of appeal.”

13      Clause 4.5 goes on to provide that:

“Sensible time limits shall be allowed for each step and work shall continue as it was prior to the matter being raised.

No Party will be prejudiced as to any final settlement by the continuance of work.”

14      It is not in issue that employees who were the subject of the agreement took industrial action by going on strike and leaving the site on 9 July 2004, 29 July 2004 and on 19 and 20 August 2004.

15      The Claimant’s position is that preceding each decision by the employees to withdraw their labour a meeting had been arranged and organised by the site shop steward Mr Peter Levy (Levy).  All the meetings were attended by Mr Michael Powell (Powell) and he was accompanied by Mr Mick Buchan (Buchan) on 9 July 2004, by Mr Walter Vinicio Molina (Molina) and Mr Joe McDonald (McDonald) on 29 July 2004 and by McDonald on 19 August 2004.

16      Powell and Molina are the Second and Third Respondents and are employed organisers of the Union, as is Buchan.  McDonald is one of the Union’s assistant secretaries.

17      The meetings were also attended by the site shop steward Levy.

18      Mr Ante Radalj (Radalj) gave evidence that he was a civil engineer who was employed by Barclay Mowlem as its project manager.  He was in charge of the Thornlie Railway Station and Bridges Structural Work Project (the project) and responsible for “everything to do with the program, budget, safety, the quality, the environment”.

19      Radalj gave evidence of the attendance on site of Powell and Buchan on the morning of 9 July 2004.  He said Powell told him he was there to investigate the incident on 8 July 2004 where a truck dumping fill in area B had its tray tip over onto its side.  Radalj described Powell as becoming hot-headed after Radalj had queried Powell’s right to enter the site without giving notice.  He said Powell had told him to “fuck off” and that “he would come on site when I want to when it’s to do with the boys’ safety” and when told that there had already been an investigation into the truck incident Powell said he would do his own investigation and stormed out.

20      Radalj said he was aware of a meeting of basically the entire workforce and Powell.  The meeting lasted fifteen to twenty minutes and after it finished Powell came back to the office and said the boys are withdrawing their labour.  When asked why, Radalj said Powell told him it was because management had failed to consult about the incident with the truck, the facilities in area D were not up to standard, toilets were not cleaned and there was no first aid box in area D.  It was Radalj’s view that the issues were of a minor nature and could have been readily resolved.

21      Relevant to the incident on 29 July 2004 Radalj gave evidence that Powell and Molina came to the site and had a meeting with the workforce.  After the meeting Powell and Molina attended at the site office and raised with Radalj the issues of the $22.00 per day allowance and the redundancy payment.  On that day the workforce left the site after the meeting.

22      The evidence of Radalj about what took place on 19 August 2004 was that Powell came to the site around 10.00 am.  He said:

“A meeting was held.  The meeting was later transferred outside the gates.  On the conclusion of the meeting Mr Powell came in and spoke to me and basically said that the workforce is out on strike.  I’m not sure if it was one, two or three days.  He identified the reasons why they were going on strike.

. . . One of them was that I was hassling people on how to do their job; that I was taking money away from people by saying when they can and cannot work; that I was allowing work to proceed in an unsafe area.  I’m pretty sure inclement weather was raised again – about when people can go home.”

23      On all three occasions the workforce went on strike the entire workforce left the site and it is the evidence of Radalj that they did so without the dispute resolution procedures being applied.

24      It is not my intention to refer in detail to the evidence of the other prosecution witnesses.  Generally the evidence leads me to the conclusion that the issues in dispute centred on the special project allowance, redundancy and inclement weather clauses of the agreement and supports the prosecution claim that the dispute resolution procedures were not followed.

25      The Respondent’s claim that they did nothing to encourage the workforce to withdraw their labour but tried to prevent the strike and direct the workforce towards the dispute resolution procedures.

26      Powell gave evidence of his involvement.  When he arrived on site on 9 July 2004 with Buchan they “ran into some very disgruntled people” who were upset about access and egress to area D where there were no toilets, first aid facilities, provision for washing hands or communications.

27      Powell said he also observed a number of other situations of a safety nature which gave him concern, including workers on an abutment with no fall protection, a lot of integration between “trucks and people carrying materials” and lack of a traffic management plan.

28      When Powell attended at the site office he claims Radalj raised the issue of Powell not giving the required notice before entering the site and threats to call the police were made.  He then described what followed as a bit of a slanging match between them and claims Radalj, when told there were a lot of safety issues on the site, responded by saying that the things he had put in place were adequate.

29      Powell said he took that response “back to the blokes” during the meeting and said he was verbally attacked by the members on the site.  Despite Powell telling those at the meeting “we’ve got a dispute resolution procedure and that we should be following it” and that “they remain on site while we go through those dispute resolution procedures” the workforce voted to go on strike for the day.

30      On 26 July 2004 Powell attended at the site with Molina and spoke to Radalj.  Powell said he raised the issues of a list of contractors for the site, the special project allowance and redundancy.

31      At the request of site steward Levy, Powell and Molina again attended the site on 29 July 2004 and a meeting “just outside the gates of the project area”.  The issues raised were about the special project allowance and the redundancy payments.  Powell said “there were also some issues on safety, scaffold components and the like”.

32      When asked in examination in chief did he say anything else at that meeting after addressing the workers, Powell said:

“I told the blokes in that meeting that we were in a position that - - that there is an agreement already been made, that there’s - - there’s a site agreement already been made, and - - and basically, the conditions of those agreements we have to wear.”

33      The meeting concluded with the workforce withdrawing their labour and leaving the site.  Powell then went to see Radalj and “told him that they’d gone because of - - they’re very unhappy with the - - the redundancy clause, the $22 productivity clause, and there were some other issues raised at the meeting as well”, and he also said the inclement weather clause was an issue raised.  He said he told Radalj “we needed to sit down and get these issues fixed”.  Radalj had replied that he could not do anything and would have to talk to someone higher up.  Powell raised the issues later that day with Mr Kevin Reynolds (Reynolds), the secretary of the union, and made contact with Mr Damien Meaney, the operations manager for Barclay Mowlem.

34      On 19 August 2004 Powell attended a meeting with the workforce on site at the request of the site steward.  As a result of that meeting the workforce went on strike and Powell said he reported to Radalj that the “blokes withdrew their labour” over the issues of redundancy, overtime, inclement weather and the site allowance of $22.00 per day.  Powell again said he told the meeting of the “need to be following (the) procedure”.

35      Evidence was given on behalf of the Respondents by Mr Roger Aleknavicius (Aleknavicius), a crane driver employed by Barclay Mowlem.  He said he was not happy with the agreement, in particular with the site allowance, redundancy and inclement weather provisions.  His evidence is that at the meeting on 9 July 2004 his major concern was for his safety, although the other issues were raised.  He said the redundancy package (was) brought up again.  “There was also the $22.00 and the inclement weather again”.  The motion which resulted in a vote to withdraw their labour was put and he said Powell “turned around and said to the guys that it was in our best interest to stay at work because it was a safety issue.  He - - he told us that we could actually work into maybe a safer area.  As far as I was concerned no other area was safe at that time”.  When asked what happened next he said “There was a motion put on the floor and I stuck my hand up in favour of going home because I’m not working on an unsafe site”.

36      Of the meeting on 29 July 2004 Aleknavicius, when asked who called that meeting, said “Once again, that was called by the workers of the union, CFMEU . . . It was brought to my attention by some of my other workers and basically I was still not happy with the proceeds of what was going on . . . Basically we’d asked for Mick (Powell) to go and talk to management

to get a - - come-back on our $22.00, our redundancy, and inclement weather, at this stage still - - still ongoing, nothing had happened”.  Once again a motion to withdraw labour was put to the meeting and the workers went on strike.

37      Aleknavicius said that Powell had told the meeting “that he still wanted to try and negotiate with the company at that stage, and he believed that if they had time they could negotiate with the company a bit more”.  Aleknavicius said his attitude was “we’d had a meeting on the 26th and they’d gone and talked after that meeting.  There was still no outcome, so I was not happy with what I had - - . . . Well, I was - - I was not happy with Mick, simple reason that we’d asked him to go and do a job for us and it wasn’t happening and we weren’t happy with the company’s result as they weren’t giving us any information that we required.”

38      The meeting on 19 August 2004 was called “over the $22, inclement weather, and the redundancy” and he said “Once again there was a motion put forward that we withdraw our labour and hopefully get something resolved”.

39      The third Respondent Molina gave evidence of his attendance at the site on 15 June 2004.  He was on his own and convened a meeting with workers on site.  He said he was passing on information about the agreement.  He met with Radalj and conveyed to him the workers’ concern that they were not being paid the special allowance for Saturday.

40      Molina attended the site on 29 July 2004 with Powell and while he said little in examination in chief about what happened, he did in cross-examination confirm that a motion was put in the terms of “If they’re not prepared to fix the - - the problems, let’s go home for 24”.  He explained the problems were the “issue of the $22 and the issue of the redundancy”.

41      As I have mentioned the site shop steward was Peter Levy.  His evidence generally supports the Respondents’ position that the workers withdrew their labour of their own volition notwithstanding being advised of the agreement and Powell’s advice to the contrary.

42      Levy gave evidence that it was he who arranged for the union officials to attend the site each time they did and he was instrumental in gathering the workers for the meetings, including collecting them from the various site areas.

43      The issue in these proceedings is not whether there has been a breach of the agreement but whether the breaches were by the Respondents.

44      Issues of safety have been raised throughout the Respondents’ evidence, particularly by Levy who mentioned “the serious concerns about safety issues on the job” and almost without failure added safety issues when detailing the reasons for the meetings.

45      Clause 6 of the Agreement provides for the Procedure for Dealing With and Resolving Safety Issues.  It sets out the steps to be taken when an employee becomes aware of an unsafe situation as follows:

1. When an employee becomes aware of an unsafe situation, the employee is required to rectify it, if it is within the employee's range of skills/competencies and authority to do so.

2. If the employee is not able to rectify the unsafe situation, the employee is required to notify the leading hand, or supervisor who will take all necessary steps to rectify the unsafe situation.

3. If there is to be any delay in rectifying the situation, the supervisor responsible for that area will ensure that employees who are working in the affected area are relocated to work in other areas on the project until the unsafe situation has been rectified.  The employer safety personnel and employee safety representatives should also be advised or notified.

4. Provided it is safe to do so, all employees with appropriate skills will be used to restore safe working conditions and normal productive work will progressively resume in the affected area.

5. Employees who are not able to be transferred to perform productive work in a safe area shall remain on the project in the site sheds if safe to do so, or at an agreed alternative safe location.

6. If there is disagreement over the existence of an unsafe situation or method of dealing with an unsafe situation, the work process in question shall not be carried out until such time as the matter has been resolved except under such conditions as are agreed between the parties.  The matter will then immediately be referred to the company representative responsible for the coordination of project safety and the relevant safety & health representative, who shall meet and inspect the work area in an attempt to resolve the matter.

7. If the issue is still not resolved, then the relevant safety and health committee will meet to discuss the matter.  The Safety & Health Committee will agree on whether an unsafe situation exists and, if so, agree a method of restoring safe working conditions.

8. Where no agreement is reached by the Safety & Health Committee a WorkSafe Inspector will be called to the site to make a determination.

9. Should all work be deemed to be unsafe, employees will not leave the site, but will remain either in the site sheds if safe to do so or at an agreed alternative safe location.

10. Provided the above safety procedure is complied with, entitlements to pay and other benefits shall continue in accordance with Section 28 of the Occupational Health and Safety Act 1984.

46      Clearly clause 6 requires efforts to rectify the unsafe situation and where there is disagreement a resolution procedure involving a Worksafe Inspection if necessary.  In any event even if “all work be deemed to be unsafe, employees will not leave the site but will remain either in the site sheds if safe to do so or at an alternative safe location” (clause 6(9)).

47      Although safety has been raised by the Respondents as an issue there can be no doubt in my mind, on the evidence before me, that there was anything on site which rendered it unsafe.  There were some minor issues of safety which were easily rectified and when brought to the attention of Radalj were actioned by him.  The incident involving the truck on 8 July 2004 was investigated and the cause identified.  It took place in an area where only a few employees were working and which was some distance from where the majority of the employees were.  A Worksafe Inspector was called to the site and his investigation report concluded “Visited site from complaint number 26388 and did a full inspection of site with the safety manager on site.  Issued improvement notice for no facilities on location D.  The rest of site is adequately covered”.  He had “no issue with” the truck incident.

48      The issues of concern to the employees and obviously the union and its hierarchy and officers were the three which had dominated the relationship between the parties and which featured consistently throughout the hearing.  They are the issues of the special project allowance, the redundancy provision and the inclement weather clause.

49      These issues became a concern to the union soon after the agreement was certified on 26 May 2004.  Molina expressed dissatisfaction with the special project allowance to Radalj on 15 June 2004.  I heard evidence of Reynolds’s dissatisfaction with those provisions and his rebuking of the union’s solicitor Kucera for allowing them to “slip through”.  It was the union’s view that the special project allowance of $22.00 per day should be paid on the Saturday as was agreed for the employees on another site.  The union was clearly not happy with the redundancy provision and believed employees should be paid the redundancy allowance when an employee left his employment of his own accord.  As Powell explained, if that did not happen it might encourage an employee who wanted to leave to engage in misconduct which would result in him being dismissed.  In relation to the inclement weather clause the union wanted the same provision as that in the National Building and Construction Industry Award 1990.  In fact the union pursued those issues and was successful in changing the redundancy and inclement weather provisions to the terms sought.

50      Prima facie it must have been the intention of the parties when they entered into the agreement that they agreed with the provisions of the agreement.  That is fundamental to any agreement.  It follows that the union accepted at the time that the agreement, as it was, would continue in force until 1 July 2005 and, as set out in clause 1.6, there would be no extra claims (see page 3 of these reasons).

51      As I understand the evidence all workers on the site were aware of the agreement before accepting employment and I would have thought the union had an obligation to ensure its members were fully aware of the provisions of the agreement.  Copies of the agreement were made available to employees and I would find it unbelievable that any employee was unaware of the existence of the agreement although some may not have taken the trouble to read it.

52      On any construction of the agreement the action of the workers on the three occasions they withdrew their labour and left the site was in breach of the provisions of the agreement.  As I have found, there were no safety issues of any significance and, even if there were, the procedure set out in clause 6.1 should have been followed.  That procedure does not allow the workers to withdraw their labour and leave the site.  The evidence does not support any claims that the industrial action was “based on a reasonable concern by the employees about an imminent risk to his or her health or safety” as provided in section 4 of the Act.

53      I can only conclude that the workers withdrew their labour in pursuance of their claim in relation to the three issues identified.

54      The Respondents claim they played no part in the industrial action taken by the employees.  In my view that claim cannot be substantiated on the evidence and there is an irresistible inference that the union by its officers mentioned in these proceedings played a significant part in the activities which lead to the withdrawal of labour and, in turn, the breach of the agreement.

55      There can be no doubt on the evidence that the union was not happy about the three issues of concern and it pursued them until two had been resolved in its favour.

56      There is no evidence of any bona fide attempt by the union to follow the dispute resolution procedures of clause 4.5.  In fact the evidence leads me to conclude that at least Powell was not conciliatory in his dealings with Radalj.  I accept Radalj’s evidence that Powell had been hot headed, told him “don’t fuck with me” and generally presented in an aggressive manner.  That evidence was supported by Nathan Richardson who was present on 9 July 2004 when Powell “went off” at Radalj and told him “to get fucked quite a few times”.

57      Section 170MN of the Act prohibits “an employee, organisation or officer covered by subsection (2)” from engaging in industrial action for the purpose of supporting or advancing claims against the employer during the currency of an agreement.  Subsection (2) provides:

(2) For the purposes of subsection (1), the following are covered by this subsection:

(a) any employee whose employment is subject to the agreement or award;

(b) an organisation of employees that is bound by the agreement or award;

(c) an officer or employee of such an organisation acting in that capacity.

58      All three Respondents are therefore covered by the section and I find that the industrial action was for the purpose of supporting and advancing claims against the employer.

59      Section 4(8) of the Act provides:

In this Act, a reference to engaging in conduct includes a reference to being, whether directly or indirectly, a party to or concerned in the conduct.

60      In this case the union by its officers including its organisers and site steward called, arranged and attended the three meetings which resulted in the withdrawal of labour.  They had direct involvement in the industrial action and, in my view, at least with the knowledge of the outcome of the meeting on 9 July 2004, it was foreseeable that a similar outcome was likely following the next two meetings as the three issues had still not been resolved and the union had not engaged in the steps provided for in the dispute resolution procedure.

61      I find therefore the Respondents did engage in industrial action for the purpose of supporting and advancing claims against the employer herein as claimed and the Respondents are in breach of section 170MN of the Act.

WG Tarr

Industrial Magistrate