C2001/62, Transcript of Proceedings [2001] AIRCTrans 10 (20 February 2001)

AUSCRIPT PTY LTD
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TRANSCRIPT OF PROCEEDINGS


O/N 5748
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT ACTON

C2001/62

GLOBAL TELE SALES PTY LIMITED
AWARD 1999

APPLICATION BY AUSTRALIAN MUNICIPAL,
ADMINISTRATIVE, CLERICAL AND SERVICES
UNION-MEU/PRIVATE SECTOR VICTORIAN
BRANCH TO VARY THE ABOVE AWARD TO
REFLECT INDUSTRY SAFETY NET CONDITIONS
OF EMPLOYMENT

MELBOURNE

9.42 AM, THURSDAY, 1 FEBRUARY 2001

PN1

MR M. FOLEY: I appear on behalf of Australian Services Union.

PN2

MR J. SANDLER: I seek leave to appear on behalf of Global Tele Sales with MR T. LANGE.

PN3

THE SENIOR DEPUTY PRESIDENT: Any objection to the application for leave to appear?

PN4

MR FOLEY: Not surprisingly, yes, Senior Deputy President. We believe that this is but a humble application for a safety net application bringing terms and conditions of employment into line with a process that was set out some 18 months ago. We say it is totally in line with the standard principles of the Commission and we can't understand why under section 42(3)(b) that there would be any special circumstances that would warrant our friends to appear at the other end of the table, particularly given, as I understand it, that the company has within its own ranks legally trained and qualified people who just happen to be in Court today, and based on that, Senior Deputy President, we think you should exercise your discretion and ask our friends to depart the bar table. If the Commission pleases.

PN5

THE SENIOR DEPUTY PRESIDENT: Mr Sandler.

PN6

MR SANDLER: As the Commission pleases. Well, the fact that Mr Foley is surprised is interesting because he was put on notice that we intended to take a jurisdictional point and that jurisdictional point relates to the Commission's capacity to exercise any arbitral powers in relation to the application on the basis of section 170N of the Workplace Relations Act which as the Deputy President would know prohibits or prevents the Commission exercising arbitral powers in relation to a matter that is at issue between negotiating parties, and that is the situation that exists today.

PN7

There is a bargaining period in place and there are negotiating parties, and Mr Foley is well aware of it, his union has been involved in the process of bargaining, of the agreement making as recently as yesterday, so he is well aware that there is a bargaining period in place and that the Commission should not be exercising - or that we are arguing - - -

PN8

THE SENIOR DEPUTY PRESIDENT: What section is it again?

PN9

MR SANDLER: 170N(1).

PN10

THE SENIOR DEPUTY PRESIDENT: N, right.

PN11

MR SANDLER: N, sorry, yes.

PN12

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Sandler.

PN13

MR SANDLER: We put him on notice on Tuesday afternoon of that fact. So we say that there is a jurisdictional issue. The jurisdictional issue raises complex legal issues, fundamental questions of law, and we would ask you to exercise your discretion and allow the application for leave to appear.

PN14

THE SENIOR DEPUTY PRESIDENT: Mr Foley.

PN15

MR FOLEY: Although I have been in the bush, I am unaware of having been placed on notice, but I am not here to say that our friends haven't been in contact with our office, and I know that some of our organisers met with the company yesterday, but I can stand here in all good conscience and say I am not aware of any of those things.

PN16

THE SENIOR DEPUTY PRESIDENT: Yes, but that is not the issue. The issue is whether I should grant leave to appear - - -

PN17

MR FOLEY: Absolutely.

PN18

THE SENIOR DEPUTY PRESIDENT: - - - on the basis of section 170N argument.

PN19

MR FOLEY: Well, if I might, whilst we are on the subject, as I understand it section 170N(1):

PN20

During a bargaining period the Commission must not exercise its arbitration powers under Part VI in relation to a matter that is at issue between the negotiating parties.

PN21

Well, this sort of gets fairly down the track of some other submissions that I was going to make, but at least in terms of the issue of whether our friends should appear or not, the company's own admission is that it is seeking an agreement to not involve the Australian Services Union, that we are not a negotiating party, and as recently as 9 January Ms Hoffmeister from the company, at page 3 of a letter addressed to me, says at point 7:

PN22

We are not prepared to agree to any elements of the process proposed by the ASU. You have missed the point. We are not seeking to negotiate an agreement with the ASU. We are seeking to make an agreement directly with our employees subject to the provisions of section 170LK of the Act. The ASU has no further role in the negotiating process between GTS and its employees.

PN23

And there are a couple of gratuitous comments after that which I will leave alone. But in that regard, we don't pretend that we are a negotiating party. We agree with the company that we are not a negotiating party in the process of the bargaining period that they have initiated directly with their employees. And failing that, 170N(2) does not prevent the Commission exercising its arbitration powers to deal with an application to vary an award by making a safety net wage adjustment, and again this was going to be dealt with further in my submissions. We would say the nature of our application is essentially to bring safety net terms and conditions of the international airline industry as it applies in Australia through the Overseas Airlines Award as a model to this particular enterprise.

PN24

So we say that, fine, the company has every right to bargain directly with its employees, and has sought to initiate a bargaining period with those employees, not with the Australian Services Union; we are not a negotiating party. That process simply has to be dealt with on its merits. We say that based on that by the company's own admission that there is not an issue as to who or who is not a negotiating party. We agree with them. So on that basis we say 170N(1) doesn't catch us. If the Commission pleases.

PN25

THE SENIOR DEPUTY PRESIDENT: Mr Sandler.

PN26

MR SANDLER: I think Mr Foley has amply demonstrated that there are fundamental matters of law which need to be properly argued before the Commission to entertain that precise jurisdictional point.

PN27

THE SENIOR DEPUTY PRESIDENT: Leave to appear is granted, having regard to the subject matter. Mr Foley, your application, as I understand from it and from what you have just said, is an application to incorporate into the Global Tele Sales Award '99 certain terms and conditions of employment; what is the basis of those terms and conditions?

PN28

MR FOLEY: Well, firstly, Senior Deputy President, I would like to thank you for listing this matter sooner than was otherwise possible at our request. I was going to hand you up one document which tried to put all of that in context, so I might do that.

EXHIBIT #ASU1 DOCUMENT REGARDING APPLICATION DATED 01/02/2001

PN29

MR FOLEY: Thank you, Senior Deputy President. If I can just briefly - I won't go through all the appendices given the limited time that we have got today, but essentially what I have tried to do in this document and have placed 12 appendices to it, is the background to proceedings that have been before this Commission in times gone by and proceedings both - that are under way at the moment, the 170LK process that the company has under way with its staff, and also some Federal Court applications that are also afoot in this matter.

PN30

THE SENIOR DEPUTY PRESIDENT: Sorry, does this document deal with those?

PN31

MR FOLEY: It does. It deals - it tries to paint as full a picture as it can from our point of view as to both the history and the current set of circumstances, but doesn't address the merits of why we say our application should proceed. So to move through it at a relative pace, Lufthansa German Airlines, which is the controlling company for Global Tele Sales, has operated and been bound - well, it has been bound by awards of this Commission and its predecessors since 1974.

PN32

In - I think it was 1995, it might have been 1994, Lufthansa ceased direct flights to Australia and started to co-share flights with its Star Alliance partners out of Singapore into Australia.

PN33

THE SENIOR DEPUTY PRESIDENT: What is Star Alliance? Is that - - -

PN34

MR FOLEY: That is the international alliance of which Lufthansa, United Airlines, Ansett, Thai, you know, they are all - there is three in the world. There is Star Alliance, One World, which Qantas are in, there is another one, I forget. But basically Lufthansa and United are the key players globally in the Star Alliance. So obviously enough, as Lufthansa pulled out of its direct flights to Australia - it was based in Sydney - its airport numbers fell, it continued to maintain an Australian and New Zealand office dealing broadly with customer service, call centre related functions, and we set some figures out there.

PN35

In or about June of 1998, Lufthansa, through its various incarnations, established Global Tele Sales as a fully owned subsidiary, we say, in order to assign, sell through GTS its business - a part of its business, the air transport services that it delivered that Lufthansa previously delivered about air transport services, essentially customer service based functions, around that. Now, I don't swear to that figure, it is a bit of a changing feast, but since that time we understand that the figures of staff are in the 70 to 80 category at or around this time, it has fluctuated over time.

PN36

It was registered in Victoria, the company; we talk about its ultimate ownership and there is some supporting documentation at attachment 1 there, which if - I wasn't going to take you to it, but if I can briefly, just sets out the company extracts from the Australian Securities and Investment Commission, pointing to the ultimate holding company being Lufthansa Commercial Holdings.

PN37

THE SENIOR DEPUTY PRESIDENT: Where is that, sorry?

PN38

MR FOLEY: I haven't numbered the tabs, but that is behind the first blue piece of paper.

PN39

THE SENIOR DEPUTY PRESIDENT: Yes, yes, I can see that, but seeing where it says Lufthansa.

PN40

MR FOLEY: Yes, that is on page 2 of that Australian Companies and Securities Commission document, just under the Directors. We go Ms Campbell, who is here in the Court with us today, and then we go:

PN41

A current ultimate holding company, Lufthansa Commercial Holdings GmbH.

PN42

And there is a few other bits and pieces. Following on from that, you will see a letter from Mr Thompson, who is the General Manager of Australia and New Zealand of Lufthansa, dated 28 June 1998 in response to a letter from our national office's Ms White.

PN43

THE SENIOR DEPUTY PRESIDENT: Just on that - sorry, Mr Foley - I just notice that Lufthansa Commercial Holding GmbH owns all the shares, it appears.

PN44

MR FOLEY: It does.

PN45

THE SENIOR DEPUTY PRESIDENT: Yes.

PN46

MR FOLEY: Which we say is not an unimportant factor in this and other proceedings. The next document in that same group of tabs is a one-page document from Mr Thompson who was and is the General Manager for Australia and New Zealand of Lufthansa German Airlines, and this is - our Ms White wrote to him after the announcement of the set up of Global Tele Sales, and he says:

PN47

I note your interest regarding the staff in the recently announced Global Reservations Centre. At this stage, as you will appreciate,

PN48

we -

PN49

presumably Lufthansa -

PN50

are going through the process of establish of the company and the centre. We have engaged a number of advisers...

PN51

dah, dah, dah. Not a lot raises on that, but we say that that points - one of the many documents that points to the relationship between Global Tele Sales and Lufthansa. Back to our outline document, the business then started to set up in 1998, in or around September and October. It has significant support from the State Government - which business these days doesn't? - as evidenced by - there is a range of reports on the public record for the State Regional Development. There has been proceedings elsewhere, which we will allude to, where the State Government sought to intervene, pointing out a whole range of support it was bringing to the company.

PN52

Behind the second blue piece of paper in that regard there is also a couple of other documents of interest pointing to the relationship between Lufthansa and Global Tele Sales. The first of those dated 5 June 1998 is an internal memo - page of 2 of it has been photocopied upside down, Senior Deputy President, sorry about that - from Mr Thompson again which points - just an advice to staff about the nature of the business that Global Tele Sales - that the centre is all about, how it is going to employ 100 people, handle calls for customers dialling Lufthansa Reservations - we stress that - basically from the Asia Pacific area as well as after-hours in Germany, the USA and Canada:

PN53

It is a further step in Lufthansa's plan to establish a multi-lingual global reservation network providing round-the-clock speedy response...

PN54

etcetera. It talks about where it will operate, talks about as Melbourne is one of five - I think it might be six or seven now - Lufthansa call centres globally, talks about the staff being multi-lingual, will average 5000 calls, etcetera. With the upside-down page 2, which I apologise for, it gives a series of reassurances to Sydney staff of Global Tele Sales about the fact that they have got nothing to worry about. It is also important, as he says in his third-last paragraph:

PN55

...to point out that for the time being the call centre is not able to handle Miles and More -

PN56

which is the Lufthansa frequent flyer system -

PN57

activities. An official announcement is going to be made by the Victorian State Government and Lufthansa...

PN58

etcetera. As an aside, I understand that Miles and More activities are now actually conducted by the GTS Melbourne centre.

PN59

The next document in that same group of things is an information release from the Embassy of the Federal Republic of Germany which just at the bottom of that document just has a paragraph saying that:

PN60

Lufthansa will establish its Asia Pacific reservations call centre in Melbourne -

PN61

same sort of thing in much lesser detail than Mr Thompson's memo. So that is what happens with GTS in September/October 1998, and we try to engage them and their representatives at that stage, and I wish our friends at this end of the bar table all the best, Baker and McKenzie. They don't want to talk. They offer Australian Workplace Agreements, which is their right, directly to those employees who are going to be established - who are offered employment, should I say.

PN62

I should point out - I failed to point out, but on the back side of the Embassy of the Federal Republic of Germany's Information Service is the first ad that was put out to attract staff which is branded, amongst other things, Lufthansa. It is on the back of the - - -

PN63

THE SENIOR DEPUTY PRESIDENT: Yes.

PN64

MR FOLEY: That is no longer the case, they don't brand it any longer, but you will see down the bottom left-hand corner that "Global Reservations Speak to the World" is the heading:

PN65

Lufthansa is proud to announce the establishment of a global reservations centre located in Melbourne. The centre will continue ...

PN66

etcetera, etcetera, the multi-lingual nature, a range of different positions, who to apply to, and co-branded, the recruitment company and Lufthansa. So that is what people applied for. Behind the next blue separation sheet is the initial Australian Workplace Agreement that employees - and as this doesn't nominate any particular individual, we are not breaching any provisions of the Act or confidences or Office of Employment Advocate's anythings. That was the standard individual Australian Workplace Agreement offered to the employees. Ultimately, as this saga progressed, that was set aside.

PN67

The Australian Services Union logged Global Tele Sales and behind the next sheet after the AWA you will find a record of the finding of that dispute by Commissioner Whelan. We also, much to my own personal regret as events have unfolded, initiated a bargaining period in matter 36677 of '98 with the company. After a series of hearings, we sought an interim award to apply to Global Tele Sales prior to - even though the employees had been issued the AWAs, they had yet to be lodged or whatever it is you do with AWAs with the Office of the Employment Advocate.

PN68

Commissioner Whelan in print Q9177, Melbourne, on 27 November 1998, issued a decision and an order setting out with some changes the interim award that we had applied applying to Global Tele Sales, the essence of which, given that - I take you to clause 7 of that interim award which was later quashed on appeal, applying the Overseas Airlines Award 1994 conditions as set out there.

PN69

THE SENIOR DEPUTY PRESIDENT: Hang on; where is the award?

PN70

MR FOLEY: It is at the back of her decision.

PN71

THE SENIOR DEPUTY PRESIDENT: Yes, I see Yes, and where are you going to?

PN72

MR FOLEY: Her decision runs for 21 pages.

PN73

THE SENIOR DEPUTY PRESIDENT: Yes, I have found it now. Where are you going to though within the - - -

PN74

MR FOLEY: In print Q9178.

PN75

THE SENIOR DEPUTY PRESIDENT: Yes, I have found that, but you were going to - - -

PN76

MR FOLEY: At point 7, the application.

PN77

THE SENIOR DEPUTY PRESIDENT: Yes, yes.

PN78

MR FOLEY: So the Overseas Airlines Award had yet to be simplified, so the order of Commissioner Whelan essentially applied the Overseas Airlines Award with the exception of a series of clauses that didn't meet the schedule - whatever it is - simplification principles of the Commission.

PN79

So that brought us to November of 1998. Because the ASU had not terminated the initiation of bargaining in 36677 of '98 for reasons that I won't go into, and I suspect my friends will take great delight in pointing out shortly, the matter was appealed and I include behind the next blue tab just the relatively quick summary from Senior Deputy President MacBean quashing the order together with ultimately the decision that he issued in that regard which went to the point of - we had to stick our hand up, yes, we didn't formally end the bargaining period, we were stonkered jurisdictionally in that we had initiated the bargaining period with the company.

PN80

THE SENIOR DEPUTY PRESIDENT: It was a 170N argument, was it?

PN81

MR FOLEY: It sure was. The initial appeal wasn't, but the amended appeal in - I think it was April of that year included it. A lesson in being thorough. So we then re-lodged again - terminated the bargaining period and resubmitted our application for an interim award again. Commissioner Whelan and at that stage no longer Baker and McKenzie, but now Phillips Fox representing the company rescheduled hearings in May. One of the international heads of Global Tele Sales Lufthansa, Mr Voigt, attended those conferences that Commissioner Whelan held and made it clear, we say - well, we didn't say at the time, but we won't say it now either, essentially made it incredibly clear that if the union's application was successful, the company would reconsider its commitment to the Melbourne venture and shift to its then being established Capetown, I think it was, call centre.

PN82

The then State Government intervened through Minister Birrell, a series of conferences. During that process the company proposed an alternative Australian Workplace Agreement to replace its original ones, which are also there behind the next blue separator, dated 24 May, covering letter from the then Managing Director Carleen Goeckel, setting out what was proposed to then be essentially a variation to the first Australian Workplace Agreement, but essentially a whole new Australian Workplace Agreement. I apologise for the scrawl over it, but I couldn't find a clean copy anywhere. So that is 24 May 1999.

PN83

Throughout that period of time, Commissioner Whelan, the State Government, Lufthansa - or Global Tele Sales' Mr Voigt, the Global bloke, a series of proceedings end up in a peace deal essentially which proposed that the AWAs be set aside, that the GTS Award would be created largely delivering the flexibilities that GTS sought via the AWAs, and that the business would be given breathing space to get on its feet, in its terms, and the ASU would place no more claims beyond full bench standards until 31 December 2000, that there be talks between the ASU and GTS as to any future arrangements in October 2000 as to what to apply beyond 31 December.

PN84

So that brings us to essentially the outcome that created by consent - I include behind the revised AWA both Commissioner Whelan's recommendation dated 3 July and then there is a memorandum of understanding attached to that and then Commissioner Whelan's and the parties' consent position dated 29 July in print R7428, what is now the Global Tele Sales Proprietary Limited and ASU Global Tele Sales Proprietary Limited Award 1999.

[10.10am]

PN85

At the time of the settlement of that and entered into the Commission record and the transcript by both Global - well I think it was actually Phillips Fox on behalf of the company and the ASU - were those commitments that I have put in bold on page 3 of the summary documents. There were a series of undertakings as part of that settlement. On 23 July 1999 when it was made those commitments were set out - were entered into.

PN86

But we, the ASU, consented to the award in its then terms to reflect the circumstances of Global Tele Sales, that is to meet the start up operational needs of Global Tele Sales and so maintain its employment, financial and operational commitment to the Melbourne operation. As we said no variations except in accordance with the national test case standards and only by consent until January 2001. That should say "that, at or around" October 2000 the parties would discussions under the auspice of the Australian Industrial Relations Commission about matters concerning the future award provisions after 31 December.

PN87

The ASU undertook not to initiate a bargaining period or pursue industrial action until at least July 2000. It was explicitly stated by us and recognised as our position, but not necessarily supported by the company, that the rates of pay, relativities and the GTS award not - it was not accepted as the appropriate final rates to apply beyond January 2001 nor did we accept that conditions of employment at Global Tele Sales reflected an appropriate set of a final award conditions of employment.

PN88

The acceptance of the award by consent is explicitly accepted as to not prevent the union from pursuing any claim available to it under the relevant principles, the rights of the ASU were explicitly accepted to pursue any variation or cancellation of the GTS award after December 2000. It is more appropriately reflected in the industry safety net conditions in which it operates which in our view is the international airline industry. So that formed a part of smoking the peace pipe of that time.

PN89

The undertaking to hold discussions under the auspice of the Australian Industrial Relations Commission in October of last year whilst - I think it was probably November by the time it kicked off, it was actually - ended up being under the auspice of the state government rather than the Commission. It was a position that the parties agreed to at that time. I am not sure who initiated it but I think it might have been the company.

PN90

So those talks auspiced by the state government begin in November of last year and they unfortunately don't get anywhere in terms of a package of resolutions and in late December GTS indicated it would not longer negotiate with the ASU and would seek a section 170LK agreement directly with its employees. So it then in very late December initiated a bargaining period directly with its employees, it resubmitted this application on 3 January and that has been allocated matter 14289 of 2000 and given that I suspect my friend's argument swings a lot on it.

PN91

I have included behind the award, the Global Tele Sales award, a letter from Ms Campbell to the Registrar referring to the notice of initiation of bargaining filed with the Commission. We were certain the notice did not contain particulars as to the proposed nominal expiry date etcetera and they have enclosed an amended notice. So, to save my friend pointing out the screamingly obvious, when we go to the notice of initiation of bargaining period it talks about the nature of the agreement and the particulars as specified under section 170MJ, the company, the types of employees covered by it, the call centre, and the matters that are proposed to be dealt with in the agreement.

PN92

I suspect a number of key ones are going to be, for instance in C1, the relationship between the agreement and Global Tele Sales Award 1999. The others are - I don't intend to speak for our friends but I suspect they will make something of that. Together with them having omitted it in their first one the nominal expiry date being 31 December 2003. Dated 5 January. By which time our application which you have kindly put before us today has been lodged in the Commission as well in line with the undertakings that we wouldn't seek any variation except by consent until 2001.

PN93

So they initiate the bargaining period. They then - they being the company - then distributed our section 170LK agreement in late January to its employees which I have also included there referred to as the Global Tele Sales Customer Service Group Employment Partnership Agreement 2001 and has advised the employees proposed to be covered by the - proposed to take a vote on the proposed agreement between February 5 and February 8.

PN94

So after the initiation of bargaining period you will find the GTS Customer Service Group Employment Partnership Agreement for 2001 which again not wishing to unnecessarily delay the Commission has at point 6, I think - - -

PN95

THE SENIOR DEPUTY PRESIDENT: The agreement are you saying?

PN96

MR FOLEY: Yes, of the proposed agreement.

PN97

THE SENIOR DEPUTY PRESIDENT: Yes.

PN98

MR FOLEY: Pardon me, point 4 - - -

PN99

THE SENIOR DEPUTY PRESIDENT: Which one are you looking for?

PN100

MR FOLEY: I am looking for the thing that says that the award as it existed at 31 December - - -

PN101

MR SANDLER: 2.1.

PN102

MR FOLEY: Thank you very much. The author of it has pointed it out to me no doubt. Thanks very much. It points out that essentially the Global Tele Sales Award as it existed at 31 December 2000 would form, if you like, the safety net purpose and things flow from that. So then faced with this difficulty - I am almost at the end - the ASU files in the Federal Court of Australia on Wednesday 31 January, yesterday, a statement of claim against GTS seeking, amongst other things, a decision of the court that GTS by virtue of 170MB(1)(d) and MB(2) that both the overseas airlines award and subsequent to that the overseas airlines industry interim award and a number of Lufthansa certified agreements which I think there has been two, and there is certainly one current Lufthansa German Airlines certified agreements that apply to the Sydney employees and the cargo employees, should in fact apply to Global Tele Sales.

PN103

Just for the sake of completeness we also include for the Commission's information behind the partnership agreement both the application to the Federal Court and the statement of claim in regards to that matter. So that is yesterday. There was also yesterday a less then satisfactory meeting between our organisers, not from our point of view, organisers and the human resource manager of the company after a request to meet and confer with us in regards to the content of the proposed agreements, the partnership agreement. And they did meet and they did confer but that was about it.

PN104

We put in writing to Ms Hoffmeister this morning, she might have obviously had a chance to get it because it was only first thing this morning, the list of specific questions that we understand that Ms Hoffmeister was going to take away for further responses from her legal advisers as to some of the questions we raised about the proposed agreement.

PN105

THE SENIOR DEPUTY PRESIDENT: That meeting was pursuant to the provisions of the Act which talk about - - -

PN106

MR FOLEY: That talks about you have to meet and confer.

PN107

THE SENIOR DEPUTY PRESIDENT: Well in respect of agreements if the union requests, yes.

PN108

MR FOLEY: Where we act for people. So, we don't pretend that they did anything other than what they were obliged to do. Then, although everybody has got it just for the sake of having one document, we include right at the end the application in this matter. So we say that where we are today is in fact the culmination of all of these things particularly given the undertakings that we gave in mid 1998 to leave the business alone, let it get on its feet, let it kick on, but that post 2000 that we would be seeking to apply what we say are appropriate safety net terms and conditions of employment given its business, given its operation, given its ownership and given a whole range of other things which are shortly to be tested in the Federal Court.

PN109

We therefore say that today's application, given the proposed agreement that the company has before its employees currently, is solely about what is the appropriate safety net, terms and conditions that should apply to Global Tele Sales and, like we argued in 1988 and like we maintained in 1999, we say that those safety net terms and conditions are those that apply to employees of similar or same businesses performing the same work elsewhere in Australia under the Overseas Airlines now Interim Award 1999 which has been subject to the award simplification process with a couple of leave reserve matters that are winding their way through endless conferences with the Australian Industry Group.

PN110

So we don't seek in any way to impinge on the 170LK agreement that the company has, that has to be determined on its merits, all we are seeking to do is to apply what we have consistently in this and other jurisdictions maintained should be safety net terms and conditions of employment that apply to the sort of work that Global Tele Sales does. We say the Global Tele Sales award as it exists now, as we have said on the record, wasn't arbitrated. It was via way of consent with, we say a number of significant riders that protected our ability to come back and argue what we are now currently - well which we will hopefully, subject to jurisdictional issues from my friend, be able to argue before you perhaps not to conclusion today but before you one way or another.

PN111

I have yet to address in any detail my friend's jurisdictional foreshadowed argument but at least in the initial submissions as to their ability to appear we do have some supporting evidence to point to the fact that we don't want to be a negotiating party, we don't pretend to be, the company don't consider us negotiating party. We say 170N doesn't catch us. So that is what we say, Senior Deputy President for opening submissions.

PN112

THE SENIOR DEPUTY PRESIDENT: Mr Foley, the terms of the draft order, are they precisely the terms of the Overseas Airlines Interim Award 1999?

PN113

MR FOLEY: If you were to transpose word for word the Overseas Airlines Interim Award 1999 there are some things that we have taken out, like district allowances that apply above Cairns and things like that, but that clearly don't apply ..... taken out allowances that apply at airports because they don't run an airport operation but all the provisions in there to the best of my knowledge are word for word the current print conditions of the Overseas Airlines Interim Award.

PN114

Now I am happy to have errors or corrections pointed out but with those exclusions that clearly don't apply to, if you like the air side operations of the Overseas Airlines Industry Interim Award and those sort of remote kind of Cairns allowances and things that have grown up in that award, they are specifically excluded, Senior Deputy President. If the Commission pleases.

PN115

THE SENIOR DEPUTY PRESIDENT: Mr Sandler.

PN116

MR SANDLER: As the Commission pleases. Deputy President as I foreshadowed earlier this morning it is our submission that the Commission does not have the power to exercise - cannot exercise its arbitral power today. I will present our submissions to you shortly but before I do so I do reserve the company's rights to make submissions in relation to how, if we ever get there and we say we won't, how any application for the variation of the award in the terms that Mr Foley seeks should be dealt with in terms of material in terms of time to respond and assess and in terms of time to place material before the Commission.

PN117

I simply reserve the company's rights in relation to that. The application that is before you today is in fairly simple terms. The application is brought by the union and it seeks the effective termination or cancellation of the Global Tele Sales Award of 1999 by deleting all those clauses and replacing them in the terms which Mr Foley has just indicated to you and that is replacing them with the Overseas Airlines award except for those aspects of the award which really have no application to the business or an organisation operating in Melbourne and who is not operating as an airline.

PN118

That is the application that the union has made. We submit that the Commission has no jurisdiction to deal with that application by virtue of section 170N(1). I take the Commission to that section. That section states that during a bargaining period the Commission must not exercise arbitration powers under Part VI in relation to a matter that is at issue between the negotiating parties. Part VI, the Commission is well aware, deals with the making of awards by the Commission. The only exception is that sub section (1) does not prevent the Commission exercising arbitration powers to deal with an application to vary an award by making a safety net wage adjustment. And I emphasise those words.

PN119

Section 170N(1) has a number of elements. Firstly there must be a bargaining period in place. Secondly, there must be matters issue between the negotiating party, so there must be negotiating parties and there must be matters at issue. Let me start with the first element that is in place and I ask to hand up a book folder of materials which we prepared for this morning. I suggest this be conveniently called GTS1, if the Commission pleases.

EXHIBIT #GTS1 BOOK FOLDER OF MATERIALS FROM MR SANDLER

PN120

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Sandler.

PN121

MR SANDLER: If I can take the Commission to tab 5 of GTS1. Tab 5 of GTS1, Deputy President, is statement by Ilka Hoffmeister which sets out the details of how the bargaining period was initiated and distributed to employees. At tab 7 you will see the bargaining period that was initiated on 22 December and that bargaining period was given the matter number C14289 of 2000. If I can take you to that notice.

PN122

THE SENIOR DEPUTY PRESIDENT: Is this the same as - no, this is the early one. Yes.

PN123

MR SANDLER: That notice sets out - is a notice given to the Commission that Global Tele Sales intends to try and make an agreement under division 2 with all persons employed by GTS in the classifications of work under the Global Tele Sales Award 1999 and to have the agreement certified. There are details of the business, the types of employees who the agreement will apply to and then the matters which are set out or should be dealt with by the agreement.

PN124

There are a range of matters set out and as Mr Foley foreshadowed perhaps the most fundamental matters - that first one and that is the relationship between the agreement and the Global Tele Sales Award of 1999. Basically what that detail stated, that particular stated that the entire award and its relationship to the agreement was a matter between the negotiating parties and then there are some other matters which are self explanatory, probation employment, rostering arrangements, principles, hours of work and spread of hours, shift loadings etcetera.

PN125

That notice was distributed by handing each employee a copy of the notice together with a covering letter. That covering letter is set out at tab 7 - sorry it's at tab 6 and that is a letter from Susan Campbell advising employees the status of the negotiations as the company had seen it. Just of interest to note that the company's view was that it had reached agreement with the union but could not agree about the underpinning award. That notice was distributed and a number of - each employee who received the notice signed a receipt, that is what Ms Hoffmeister says.

PN126

On 3 January the company became aware that the notice had not indicated the nominal expiry date of the agreement and as a matter of clarification, we say, issued an amended notice to employees which was distributed by handing copies and receiving an acknowledgment of receipt to those employees who were at work and couriering the notice to those employees who were not at work.

PN127

THE SENIOR DEPUTY PRESIDENT: And is it this letter, notice of initiation dated 3 January 2001, on which you rely?

PN128

MR SANDLER: That is correct.

PN129

THE SENIOR DEPUTY PRESIDENT: Yes.

PN130

MR SANDLER: That is the covering letter. The only change to the notice initiating the bargaining period - - -

PN131

THE SENIOR DEPUTY PRESIDENT: Yes.

PN132

MR SANDLER: - - - was that the agreement date was inserted. Perhaps at this stage I might simply take the Commission to the - just deal with those two notices initiating the bargaining period. Deputy President if I can take you to section 170MI and MJ of the Workplace Relations Act. Section 170MI deals with an initiation of a bargaining period and simply says:

PN133

An employer or organisation of employees or an employee acting on their own behalf ...(reads)... certified under division (2) or (3).

PN134

Section 170MI(3) curiously enough, and I will return to this later, defines who the negotiating parties can be. 170MI(3)(a) defines the first negotiating party as the initiating party and 170MI(3)(c) states:

PN135

That if the initiating party is an employer who tries to make an agreement under section 170LK the employees at the time whose employment will be subject to the agreement -

PN136

so the employees at the time whose employment will be subject to the agreement are the other negotiating party - or can be the other negotiating party and this is essentially what happened in this particular instance. It is a 170LK agreement and the two negotiating parties under section 170MI(3) are Global Tele Sales and the employees. Section 170MJ deals with particulars to accompany the notice. Section 170MJ says the notice is to be accompanied by particulars of - and then a range of particulars are set out. The first particular that is set out is the single business or part of the business to be covered by the proposed agreement. Well that is set out in - if I can take you to the first - let me call it the first notice, that is set out in the first notice:

PN137

The types of employees whose employment will be subject to the agreement and the other persons who will be bound by the agreement.

PN138

That is set out in the first notice.

PN139

THE SENIOR DEPUTY PRESIDENT: Hang on, you are relying on the second notice, aren't you?

PN140

MR SANDLER: No. We say that the first notice is valid but to the extent that there may be any objection to the first notice, we would only rely on the second notice.

PN141

THE SENIOR DEPUTY PRESIDENT: Well, the only difference between the two is the date on the end, isn't it?

PN142

MR SANDLER: That is correct.

PN143

THE SENIOR DEPUTY PRESIDENT: So why does it matter? Why do you need the first?

PN144

MR SANDLER: Well - - -

PN145

MR FOLEY: If it would help, we are not arguing the toss on that particular matter.

PN146

MR SANDLER: So you - - -

PN147

MR FOLEY: So we say the second one is legitimate because they whacked on the normal expiry date.

PN148

MR SANDLER: Okay, with that concession I will just take you to the second notice.

PN149

THE SENIOR DEPUTY PRESIDENT: Yes.

PN150

MR SANDLER: The second notice you will see contains the types of employees, those are all persons who are employed in the classifications under the Global Tele Sales Award. The matters that the initiating party proposes should be dealt with and those are set out in the second notice under (i) through to (ix), the industrial dispute, well there is no industrial dispute; the proposed nominal expiry date of the agreement, and that is in the second notice; and any other matters prescribed by regulations, and there are no matters prescribed by regulations that need to go into the notice.

PN151

So the notice initiating the bargaining period, and it has been conceded, is, in effect, and in force. The second component is that there must be, under section 170N, The Commission, as I have said, cannot exercise its arbitral powers in relation to a matter that is at issue between the negotiating parties. There are two components to that. One is that there must be negotiating parties and as I have submitted to you under section 170MR(3) we have GTS and its employees, they were the negotiating parties.

PN152

It is not necessary for the union to be a negotiating party in order to invoke the provisions of a section 170N(1) and I can take you to various authorities which would simply reinforce the objectives of the Act which are to promote agreements of any kind between employers, employees and/or employee associations. And that fits very neatly into the objectives, and that is why it is there.

PN153

THE SENIOR DEPUTY PRESIDENT: Is your point simply that the union doesn't need to be a negotiating party?

PN154

MR SANDLER: Well, that is one of my points. Well let me - can I develop that a little bit?

PN155

THE SENIOR DEPUTY PRESIDENT: Well that is hardly a contentious point, is it?

PN156

MR SANDLER: Sorry?

PN157

THE SENIOR DEPUTY PRESIDENT: It is hardly a contentious point, is it?

PN158

MR SANDLER: No. My point is that the matters at issue, as described by - the matters at issued between the negotiating parties, that is the employees and GTS are as described in the notice initiating the bargaining period that the Commission cannot exercise arbitral powers in relation to those matters.

[10.41am]

PN159

It cannot vary the award, because GTS is a negotiating party, it cannot vary the award in relation to the employer and make the employer subject to that award because GTS is a negotiating party, and the matters at issue between those negotiating parties are described and are all encompassing. Deal with all the matters that Mr Foley has put into his application. They are all still matters at issue that bargaining period is in force.

PN160

THE SENIOR DEPUTY PRESIDENT: Is the point you are making simply that, as a matter of construction of section 170N, the negotiating parties are GTS and its employees.

PN161

MR SANDLER: That is correct.

PN162

THE SENIOR DEPUTY PRESIDENT: To that extent, notwithstanding the fact that ASU was not a negotiating party, section 170N prevents the Commission from arbitrating any matter pursuant to an application by the ASU which is the subject of the bargaining period between GTS and its employees.

PN163

MR SANDLER: That is correct.

PN164

THE SENIOR DEPUTY PRESIDENT: Yes.

PN165

MR SANDLER: And perhaps I can take - - -

PN166

THE SENIOR DEPUTY PRESIDENT: Is that your only point about section 170N?

PN167

MR SANDLER: Well that - well perhaps I have expressed it slightly different in that - well, irrespective of the fact that the ASU is not a negotiating party, there are matters at issue between negotiating parties.

PN168

THE SENIOR DEPUTY PRESIDENT: Yes.

PN169

MR SANDLER: And that prevents the Commission from exercising it arbitral powers.

PN170

THE SENIOR DEPUTY PRESIDENT: Yes, but is that the only issue you have got with respect to 170N?

PN171

MR SANDLER: That is the issue.

PN172

THE SENIOR DEPUTY PRESIDENT: That is the issue. That is your jurisdictional issue.

PN173

MR SANDLER: That is the jurisdictional issue.

PN174

THE SENIOR DEPUTY PRESIDENT: And you say - do you say as part of that that all the matters that are raised in the ASU application are also raised in the notice of initiating of bargaining period of GTS?

PN175

MR SANDLER: That is correct.

PN176

THE SENIOR DEPUTY PRESIDENT: Yes.

PN177

MR SANDLER: And perhaps I can take you to - - -

PN178

THE SENIOR DEPUTY PRESIDENT: And have you got any direct authority on that point.

PN179

MR SANDLER: I do.

PN180

THE SENIOR DEPUTY PRESIDENT: Yes.

PN181

MR SANDLER: Perhaps I can take you to the Full Bench decision in Metal Engineering and Associated Industries Award.

PN182

THE SENIOR DEPUTY PRESIDENT: Is that attached here somewhere?

PN183

MR SANDLER: Yes. It is attached to tab 22. The relevant analysis by the Full Bench is at paragraph 9 and paragraph 30, paragraph 30 in particular. Paragraph 30 during - sorry, paragraph 29 onwards deals with section 170N and paragraph 30, which I will read to you, which I take you to, Commissioner - - -

PN184

THE SENIOR DEPUTY PRESIDENT: Paragraph, sorry what?

PN185

MR SANDLER: Paragraph 30 deals exactly with the issue that you have raised, where the Commission says:

PN186

We accept that jurisdictional constraint may impact on an exercise of arbitration powers in one sense more peripheral to the bargaining period - - -

PN187

THE SENIOR DEPUTY PRESIDENT: I can't find on my 30.

PN188

MR SANDLER: Okay, that is on page 10, it is paragraph 30.

PN189

THE SENIOR DEPUTY PRESIDENT: So - okay, you have missed the first few sentences, yes, and then you have gone - yes.

PN190

MR SANDLER: And the Commission is dealing with the issue whether, okay, you have got two negotiating parties but can we independently arbitrate leaving them out. That is the - that is what the Commission is consider, as I understand it. And the Full Bench says:

PN191

We accept the jurisdictional constraint in section 170N may impact on an exercise of arbitration powers that is in one sense more peripheral to the ...(reads)... the arbitration power may not be exercised.

PN192

And that is what we say here, is that it is true. Not all the negotiating parties are before you today. But the negotiating parties, that is GTS and its employees, certainly GTS is among the parties to the proposed arbitration and I would say the employees are as well if the union is here on behalf of its members or persons who would be eligible to be members of the union. So the issue as identified by the Commission, is that there must be partial overlap. Well we say there is not only partial overlap here, there is total overlap, because on the table the issue between the parties is the relationship between the Global Tele Sales Award 1999 and the proposed agreement.

PN193

And Mr Foley has taken you to the terms of the proposed agreement and you will see that that has been extrapolated into the preservation of the 1999 award. In other words, the non-interference or keeping it in tact is at issue between the parties. So we say that the entire award is preserved and the Commission cannot arbitrate in relation to Global Tele Sales in the way that the union has sought. It should also be noted that clause 6 of the proposed award is expressly related to - expressly relates to GTS employees. I take you to that proposed award:

PN194

Parties bound in coverage. This award is binding on Global Tele Sales Pty Limited and the Australian ...(reads)... employed within the scope of this award.

PN195

So there - - -

PN196

THE SENIOR DEPUTY PRESIDENT: That clause cannot be right, can it, if this award is made pursuant to a dispute, it can't bind the employees. It can bind the company, it can bind the union, but it can't bind the employees, so there is no jurisdiction for that clause.

PN197

MR SANDLER: Yes, I concede that. But certainly, as I have said, that authority, or that decision, is authority for the proposition where there are a number of parties to the arbitration and some of those parties are negotiating parties, not all of those parties, which is the situation we have here. We would say that, as I have said and I would like to emphasise, the relationship between the agreement and Global Tele Sales Award as described in the notice initiating the bargaining period, is all encompassing. But perhaps I could take a step back because - - -

PN198

THE SENIOR DEPUTY PRESIDENT: Could I just ask you before you go on, about the decision you have gone to of 17 December '99 in print S1931. Do you know whether the bargaining periods which were the subject of that decision were between the employer and the union, or as in this instance, between the employer and the employees?

PN199

MR SANDLER: As I understand the facts of the case, whether or not there was a bargaining period was in fact an issue, and there was no specific bargaining period and there were allegations that there was a bargaining period in place, but there had - my understanding of that case was that the Full Bench found that because there was no specific bargaining period there was no basis for, I think - there was no basis for holding section 170 in argument. I think that appears from paragraph 29.

PN200

THE SENIOR DEPUTY PRESIDENT: So is paragraph 30 then obiter.

PN201

MR SANDLER: Well, it is a Full Bench decision.

PN202

THE SENIOR DEPUTY PRESIDENT: Yes, but that doesn't matter, is it still obiter.

PN203

MR SANDLER: Well, I - well it is a determination on 170N.

PN204

THE SENIOR DEPUTY PRESIDENT: They didn't need it though to get to their decision, did they, from what you have told me I mean - - -

PN205

MR SANDLER: No, they dealt with the - I think they dealt with it because the - one the bargaining periods were indeterminate I think they then went on to deal with 170N in relation to the way it had been argued and raised, so I think they dealt with each issue, that is how I read the decision. And they came to the view that there was no overlap. But - - -

PN206

THE SENIOR DEPUTY PRESIDENT: Yes, very well.

PN207

MR SANDLER: If I can also take you to the decision at tab 18. Decision of Commissioner Smith, and I take you - that was dealing with section 170N, from paragraph 8, where he deals with what is the matter at issue, and he says that:

PN208

There can be little doubt that where a subject matter is included in a bargaining notice prima facie the matter is at issue between the parties.

PN209

THE SENIOR DEPUTY PRESIDENT: Sorry, where are you there?

PN210

MR SANDLER: Sorry, paragraph 9, on the second page of that decision.

PN211

THE SENIOR DEPUTY PRESIDENT: Yes.

PN212

MR SANDLER: So, he says - and he goes on to say:

PN213

Whether or not a matter is at issue will depend upon the factual circumstances surrounding the demands and negotiations. Indeed a test may be whether the parties are acting in a bona fide manner.

PN214

And he is talking about the parties to the negotiations. At paragraph 10, further down, he says - sort of half-way down at paragraph 10:

PN215

While the clear thrust and policy of the Act is to make pre-eminent bargaining between parties ...(reads)... must be bargaining in good faith.

PN216

Well we say there is plenty of evidence of that before you today. The agreement has been provided to parties. Mr Foley says that his union has met and conferred on behalf of those people who have authorised the union to do so. There is a ballot - I mean, I can inform the Commission from the bar table, or lead evidence, there is a ballot which is due to be held; there have been briefing sessions with employees and there has been - there have been meetings with employees.

PN217

A concern has been raised by employees in relation to wage outcomes and I can inform the Commission that the response of the company has been to tell employees that they will give them each a formal - a personal undertaking in writing and have that undertaking formalised when the certification process is under way, if the agreement passes the valid majority test. And that undertaking, simply that nobody will earn - no current employee will earn any less under the new arrangement.

PN218

THE SENIOR DEPUTY PRESIDENT: When is it going to ballot?

PN219

MR SANDLER: It is going to ballot between 5th and 8th - 5th and 7 February. So we say, we haven't simply initiated the bargaining period as an administrative act, it is a genuine negotiation. I don't believe that the circumstances surrounding how we came to negotiate with our employees are relevant. But we say the bargaining period is in place, the matters at issue are between negotiating parties. We are one of those negotiating parties and this application should be refused on that basis.

PN220

THE SENIOR DEPUTY PRESIDENT: Is there any other authority that you seek to take me to, apart from the two you have taken me to?

PN221

MR SANDLER: Well, there is other authority which deals with, at tab 19, which really - and I can - again the NTEU, at paragraph 4, which really emphasises, I think, what is a fairly trite proposition, that:

PN222

The Commission cannot exercise arbitration power and to vary an award is an arbitral act, and section 170N therefore prevents the variation being sought granted to this time.

PN223

So that really deals with, we would say, the particular application that is before you today.

PN224

THE SENIOR DEPUTY PRESIDENT: Is the point that is made in this Act simply that variation of an award where there is no consent is arbitration?

PN225

MR SANDLER: Yes, is the exercise of an arbitral - - -

PN226

THE SENIOR DEPUTY PRESIDENT: I think trite is right, yes.

PN227

MR SANDLER: The decision at tab 20, I don't think says anything new, it simply reinforces the point, and that is at paragraph 25.

PN228

THE SENIOR DEPUTY PRESIDENT: Which point does it reinforce.?

PN229

MR SANDLER: Simply that section 170N prevents arbitration.

PN230

THE SENIOR DEPUTY PRESIDENT: Yes.

PN231

MR SANDLER: And what this case deals with was, and the argument here was that there was one - there was basically one particular in the notice initiating the bargaining period, which I think said, if you look at paragraph 27:

PN232

The particular given was wages, terms and conditions of employment.

PN233

And the Commission said:

PN234

There needs to be more specificity, it simply re-emphasised the period at 170N(1) prevents a variation to an award.

PN235

The decision at tab 21 really actually is quite an important decision, Commissioner, because that accepts the Full Bench decision which you referred to at paragraph 13, in dealing with the - this was again - in this particular case the Chamber of Commerce in Western Australia had a number of its members initiating bargaining periods and going through various stages of negotiation and then it was argued, well what the Commission had to consider was whether in fact those bargaining periods contained matters at issue and whether they were matters at issue in the bargaining notice.

PN236

And you will see at paragraph 13 the Full Bench accepted, or adopted the - either the obiter or - of the Metal Engineering and Associated Industries decision and it quoted that section that I took you to at paragraph 30, 31 and 32, dealing with the question of overlap. And that is really applying to the situation where there are a number of parties before the Commission, some of them are negotiating parties and others aren't. And you will see at paragraph 14 even more importantly, which might be on point, the Full Bench said - or decided - determined:

PN237

Having regard to these considerations we think the conclusion expressed by Laing C was right, and in this ...(reads)... the construction which we prefer.

PN238

THE SENIOR DEPUTY PRESIDENT: Was these bargaining periods again involving the union proper?

PN239

MR SANDLER: Yes. I don't have the earlier decision, Commissioner.

PN240

THE SENIOR DEPUTY PRESIDENT: This is of Commissioner Laing, is it - - -

PN241

MR SANDLER: That is - I don't have the Laing decision unfortunately.

PN242

THE SENIOR DEPUTY PRESIDENT: Okay.

PN243

MR SANDLER: But again it dealt with whether or not the matters were at issue. But it would seem - - -

PN244

MR FOLEY: If I might, Senior Deputy President, just because I kind of figured they were going to argue something like this, it was - Commissioner Laing found that - ruled that the - the Full Bench squashed it, argued that it wasn't genuine for the employers in the cleaning industry in Western Australia to create a bargaining period simply to avoid jurisdiction of an award arbitration.

PN245

THE SENIOR DEPUTY PRESIDENT: Yes, but that wasn't quite my question. My question - - -

PN246

MR FOLEY: So the bargaining period was initiated by those employers against the LHMWU.

PN247

MR SANDLER: And so we say that decision supports - and we say that certainly on the issue of partial overlap, well, the matters sought by the union today certainly overlap entirely with one of the negotiating parties.

PN248

THE SENIOR DEPUTY PRESIDENT: Yes, any other decisions?

PN249

MR SANDLER: Well, again it is reinforced at tab 22 and there the argument was that the Commission couldn't even entertain the jurisdictional argument, because that was exercising an arbitral power. At paragraph 9 the - - -

PN250

MR FOLEY: So sit down.

PN251

MR SANDLER: Yes, well this is authority that I can stand up. It is simply confirmed at paragraph 9, the last third of the paragraph.

PN252

THE SENIOR DEPUTY PRESIDENT: Yes, okay.

PN253

MR SANDLER: So in summary, Deputy President, we would say that there is a bargaining period which is properly in place. I have prepared a table to the extent it might be necessary as to how the various - it is an analysis - maybe I should submit it to the Commission, this is an analysis of how the employees received this - received the various notices and you will see from that that the second notice, the one which has been conceded as being valid and in place was received by everybody, or certainly given to everybody.

EXHIBIT #GTS2 ANALYSIS OF HOW EMPLOYEES RECEIVED VARIOUS NOTICES

PN254

MR SANDLER: So we would say that the matters from the notice initiating the bargaining period, which is in place, that the Commission cannot, under section 170N(1), on the basis of my submissions this morning, exercise - must not exercise its powers in relation to a matter that is at issue between the negotiating parties, and the matters that are at issue include the entire Global Tele Sales Award and therefore this Commission must not - cannot arbitrate, does not have the power, and accordingly the application by the union should be dismissed. Those are my submissions, Deputy President.

PN255

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Foley.

PN256

MR FOLEY: Senior Deputy President, if I could perhaps seek clarification from my friend, just before I launch off, GTS2, that I am imagining, reflects in sort of summary form the two tabs at 10 and whatever it was, 10 and 8, is that right.

PN257

MR SANDLER: Yes.

PN258

MR FOLEY: Yes. Which, by its own admission, indicates that if what we say - I think I indicated earlier that we are not arguing the toss, that 3 January initiation of bargaining if there, indicates at least that some of the employees, for instance Nicole Criminger, and a few others, hadn't actually received the second notice of initiation of bargaining. I stand to be corrected, but is it asserted that all the employees who were employees at 3 January 2001, by one means or another, received, and acknowledged the receipt, of the initiation of bargaining. I think something might swing on that and if I can indulge the Commission, and perhaps a clarification from our friends as to whether they believe that is the case.

PN259

THE SENIOR DEPUTY PRESIDENT: Mr Sandler, can you clarify that?

[11.10am]

PN260

MR SANDLER: Yes. Well, I say two things; firstly, it is clear from the GTS2 that those notices were couriered to those people on a particular day, and those dates were 4 January in most of those cases and that is what that book shows. We would say that even - we don't concede that this is the case, but even if it were the case, Deputy President, that some employees did not get the notice, certainly somewhere between 95 and 98 per cent of employees did get the notice and those employees are clearly in the vast majority and are a negotiating party or negotiating parties for the purposes of the Act as is GTS, it doesn't change anything.

PN261

MR FOLEY: Thanks. I just needed to have it clear in my own mind. But besides doing severe offence to definitions of negotiating parties, which we will submit there has been no negotiations with the employees, it is simply a take it or leave it with a written undertaking that no one will be worse off, does significant harm to any definition of negotiation. We maintain a few things that might assist the Commission in perhaps expediting this matter today at least. We were going to point to, and if needs be I can follow it up, but I suspect what I will say afterwards will obviate the need for it, a decision of a Full Bench in print T1582 of Qantas about a decision of Munro J, Polites, Watson and Gay, Melbourne, 6 October 2000, went to - it is all about this Avalon stuff at Qantas and the ..... and the various efforts the different parties were putting in about that.

PN262

There is a number of statements in there which I was going to go to, but I have changed my mind, dealing with genuineness and what can and can't be arbitrated during a bargaining period. Given that our friends have confirmed the timetable for the ballot of employees, being Monday, Tuesday, Wednesday next week, and working on the possibility that those employees might actually vote for the agreement, the bargaining period by definition, as I understand these things, would come to the end at the time of the making of that agreement. So there is that sitting in terms of practicalities right there.

PN263

There is also by ASU1 an application currently before the Federal Court which is listed for initial hearing on 9 March which, should we, as we are confident we will, be successful in that, it would render a large part of what is going on at the moment perhaps obsolete. So we take the view, Senior Deputy President, given what has been said on the record today, that rather than - and if you like we are happy to do it, but mindful of the time and noting that you have got another matter at 11.30, we are happy to have the matter held over to post next Wednesday where, in terms of sheer practicality, we will know whether the employees have endorsed the proposed agreement or not, therefore, working on the basis that they have, bringing an end to the bargaining period, removing any potential argument that there is a jurisdictional issue.

PN264

Now, if the Commission doesn't wish to go down that way, we are happy to argue the toss, but the practical outcome of that is such that even being an admirer as I am of the speed and diligence of the Commission as presently constituted decision making pace, I suspect that we might be arguing for no good reason if we came back in a week or any time thereafter and the bargaining period was ended.

PN265

THE SENIOR DEPUTY PRESIDENT: Okay. So you are - - -

PN266

MR FOLEY: So there is that in reality right there. We are happy if the Commission wants to take the view that we should argue the jurisdictional matter to conclusion, but we don't think in all practical, sort of, results on the ground and given the view of the Commission having - give primacy to the bargaining making process, we don't think it would serve any useful purpose if in the alternative we were to relist this matter any time after the 7th, I think our friends said, of February. That is in no way, shape or form acceding to any of the arguments that our friend has put forward.

PN267

Then again, there is the issue of our application to the Federal Court, which if that should be successful, given the commitments or the declarations that we are seeking therein that in fact the Overseas Airlines Award and in fact the Lufthansa certified agreements have and continue to apply, that might also have some direct bearing on this matter.

PN268

The initial hearing of that is, of course, only a directions hearing and is likely to be lengthy and protracted, so we would at least take the view that in all practical outcomes, given that we don't seek to interfere or disrupt the proposed partnership agreement between the parties, we have concerns with it and we have passed those concerns on, but we are not a negotiating party, if the fate of that agreement is to be determined in less than a week and that would seem to be my friend's primary motivation in life at the moment is to get that agreement up and that then removes the jurisdictional issue, we are happy to have the issue of the fate and terms of the Global Tele Sales Award relisted any time after 7 February which would obviate in more practical terms my friend's concerns, I think, and would allow our argument on merit to be determined.

PN269

If the Commission determines it, we have got to argue the toss on jurisdiction, and we will argue the toss on jurisdiction. We think for all practical purposes in 15 minutes we are not going to achieve that, and in terms of at least what is going to be the practical outcome, why have an argument for the sake of just having the argument if we can deal with the reality and substance from a company's point of view the agreement, from our point of view the award. So I might see what our friends have to say on that one, Deputy President.

PN270

THE SENIOR DEPUTY PRESIDENT: Mr Sandler.

PN271

MR SANDLER: Deputy President, I find that an absolutely outrageous proposition. This is the union that wrote to you earlier this week or last week seeking an urgent hearing of the matter. This is the union that has made the application. This is the union that knows full well about the process and Mr Foley knows and his officers know because they have been involved. They have been attending at my client's premises and meeting with their members. It is very easy for Mr Foley to say that I didn't get any letters from you. He knew the application; he knew exactly what we were on about. I sent him a fax, and I would like to hand up the fax; there it is.

PN272

He wrote to this Commission saying, hear us urgently, we want to be heard. Well, he is here today and we must say that the way he has brought his application, his application we say cannot be entertained for lack of jurisdiction and should be dismissed, and if he wants to make applications further down the track, so be it; he comes back and we start again. I must press for the matter to be determined and he is aware of the points that we were taking. He has pressed for the hearing; we are here today, it should be heard.

EXHIBIT #GTS3 CORRESPONDENCE TO MR FOLEY FROM BLAKE DAWSON WALDRON DATED 30/01/2001

PN273

MR FOLEY: Senior Deputy President, I hate to point it out to our friend, but fax number 8661 7827 is a number unknown to any bit of the ASU. My - - -

PN274

THE SENIOR DEPUTY PRESIDENT: I can tell you it is the Commission's fax number.

PN275

MR FOLEY: Just for Mr Sandler's information, my fax number is Melbourne 9342 3499, and given that the company and I have been regularly exchanging faxes for some time, I am surprised that my friend is unaware of that. We are also in the phone book, but whoever 8661 7827 is, I am sure that they have gratefully received Mr Sandler's advice.

PN276

In terms of him being outraged and offended, I am sure he will get over it. It is, however, our application and, with the greatest respect, we would submit that we are not about arguing jurisdictional issues for the sake of arguing jurisdictional issues, we want to give primacy to the processes of award safety nets and bargaining on the ground, and if it is going to make the process quicker and easier, then there is absolutely nothing to prevent the Commission from seeking to agree with that particularly given that we are into the last 11 minutes that the Commission has allocated for this particular matter today.

PN277

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN278

MR FOLEY: If the Commission pleases.

PN279

THE SENIOR DEPUTY PRESIDENT: I am satisfied in the circumstances that it is appropriate to adjourn this matter. What I propose to do is adjourn it until 2 o'clock on 9 February 2001.

PN280

MR SANDLER: Deputy President, I suppose I - I am unable to appear; I am appearing in another matter before Deputy President Duncan that day in relation to the HECSS Award.

PN281

THE SENIOR DEPUTY PRESIDENT: Very well.

PN282

MR SANDLER: At that time, at 2 o'clock with - programming.

PN283

THE SENIOR DEPUTY PRESIDENT: Sorry?

PN284

MR SANDLER: I am appearing at 2 o'clock, at that particular time.

PN285

THE SENIOR DEPUTY PRESIDENT: Right. Is it expected to go all afternoon that day?

PN286

MR SANDLER: I think it might; there are about 10 parties. It has been going for two years.

PN287

THE SENIOR DEPUTY PRESIDENT: Right.

PN288

MR FOLEY: Perhaps we could go off the record and set a time.

PN289

THE SENIOR DEPUTY PRESIDENT: Yes, we will go off the record to set a time.

OFF THE RECORD

PN290

THE SENIOR DEPUTY PRESIDENT: I will list this matter for 12 noon on 9 February 2001 for mention for the purpose of the parties reporting to me on where they are at with respect to the matter and also to discuss any necessary future programming of the matter. I will now adjourn.

ADJOURNED UNTIL FRIDAY, 9 FEBRUARY 2001 [11.25am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #ASU1 DOCUMENT REGARDING APPLICATION DATED 01/02/2001 PN29
EXHIBIT #GTS1 BOOK FOLDER OF MATERIALS FROM MR SANDLER PN120
EXHIBIT #GTS2 ANALYSIS OF HOW EMPLOYEES RECEIVED VARIOUS NOTICES PN254
EXHIBIT #GTS3 CORRESPONDENCE TO MR FOLEY FROM BLAKE DAWSON WALDRON DATED 30/01/2001 PN273