C2001/1853, Transcript of Proceedings [2001] AIRCTrans 1092 (5 June 2001)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

JUSTICE MUNRO

C2001/1853

HOLDEN LIMITED

and

AUSTRALIAN MANUFACTURING WORKERS UNION,
AUSTRALIAN WORKERS UNION,
COMMUNICATION, ELECTRICAL, ELECTRONIC, ENERGY,
INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES
UNION OF AUSTRALIA

Notification pursuant to section 99
of the Act of a dispute re contractors

ADELAIDE

10.42 AM, THURSDAY, 17 MAY 2001

Continued from 9.4.01 in Melbourne

PN126

HIS HONOUR: This is matter 1853 of 2001. It was before the Commission on a video conference from Melbourne, I think it was, to Adelaide on 9 April and the Commission issued a direction that the substance which was an indication of issues, the identification of a process of consultation which included the requirement that the parties exchange position about status quo practice in respect of the use of contractors and that they are there listening today for report back conference if necessary and the hearing of any application would need to be made prior to 14 May. In fact, no application has been made but the Commission has been provided on 11 April with the signed version of the status quo which I will read onto the record in accordance with Munro J direction and recommendation.

PN127

The following status quo practice about the use of contractors and overtime is common ground between the parties during the course of these recommendations: (1) the company determines what days are worked. If only one day is worked on the week-end, then there are no contractors brought in to do maintenance on that one day unless an emergency. (2) If two days, Saturday and Sunday are worked, then the central roster will be used. (3) If not enough members are available to work overtime in the central rosters, then the contractors are brought in and finally, the central register will continue to be used to ensure Holden trades-people are given full opportunity to work overtime.

PN128

That is signed on behalf of Holden's and by the organiser for the AWU, Mr Johnson, for CEPU, Mr Watson, the AMWU by Mr Lazzetta. The matter was proposed to be adjourned today but I thought to having regard to what appeared to be different reasons for adjournment and the possibility of the matter would again need to be listed but any application for adjournment should be put on the records since they have attended in Adelaide partly for the purpose of securing a report that was listed for today and the expectation that progress might have been made on the negotiation of those particular issues independently or in advance of negotiations for the round of bargaining that is about to come up. I wanted it clarified whether the matter was to be merged or whether it will continue to be dealt with significant to finalisation and also I would want some understanding of how the status quo position will be maintained. Is there any change to appearances?

PN129

MR KANE: Your Honour, Mr Johnson apologises for today, he is off ill so we would seek his leave to be absent.

PN130

HIS HONOUR: Yes, that is Mr Kane, is it?

PN131

MR KANE: Yes, I'm Mr Kane, your Honour.

PN132

HIS HONOUR: Yes, thank you and Mr Watson?

PN133

MR WATSON: Yes, your Honour.

PN134

HIS HONOUR: Sorry, I'm a bit short sighted on the television screen so faces that I should know, that was partly one reason why I wanted to put you to the trouble of attending today even if you have largely I hope resolved the matter as to process. What is the position? I do apologise for dragging people out in the rain, I hope that the conference might be productive.

PN135

MR KANE: Your Honour, if I may go first. Your Honour, the reasons for the adjournment were two-fold. One we have had ongoing discussions with the company in relation to the matter. Secondly, that EBA discussions are currently taking place at the Elizabeth site and they continue in Victoria in 2 weeks time and this issue is part of those discussions and it is part of the unions - combined unions log of claims for the contractors agreement to be sorted out at that level. In essence, your Honour, we are dealing with it on two fronts, one we have had discussions with the company and we are going to be having further discussions with them in the course of the enterprise agreement discussions.

PN136

Commissioner, there are two fundamental issues in relation to the original document that the company seek to change from the original contractors agreement and that is items 1 and 5 and they relate to the "work can be completed to time and requirements", those words and then item 5, "contractors will not be used for maintenance work normally performed by Holden" or GMHA as it was back then, "personnel unless all avenues have been explored", etcetera. Commissioner, the company now seeks to outline core business and non-core business in the contractors agreement and the unions are saying that that is an extra claim and should be dealt with through enterprise bargaining.

PN137

We have had quite a bit of advancement in relation to the document. We have actually agreed to, with some minor word changes, clauses 9, 10, 11 and 12 in the original document. In fact clause 2, clause 3, clause 4, 6, 7 - in fact all of the clauses are agreed to apart from some minor word changes apart from clause 1 and clause 5 of the original contractors agreement. As I said, the company seeks to actually insert into those two clauses, core business and non-core business and that at the moment is the sticking point as far as the discussions are concerned but those discussions are ongoing.

PN138

The officials and the company representatives have a very heavy workload with enterprise bargaining, not only at Holden's but at Mitsubishi, in fact your Honour, the entire component sector, Mr Watson and I are currently involved in those discussions and that is the problem. It is getting together for those discussions but we have assured the company we will endeavour to do that and carry those discussions through to a finality. If it pleases the Commission.

PN139

HIS HONOUR: Yes, Mr Kane, one reason that I insisted in fact on having the report back today was against the background that I think Ms Gray had suggested that there might be a need for a further report back next week which would have involved either a video conference or another attendance was that it seemed to me that it might be sensible if the matter is going along the lines that you indicated that if it comes back before the Commission and if Commissioner Foggo is presiding over any of these matters, then it might prudently be given to her because she will be here more regularly. To this point, have any of the matters come back before the Commission?

PN140

MR KANE: No, Commissioner, not to this point.

PN141

HIS HONOUR: Yes, very well.

PN142

MR KANE: We have only just started the enterprise bargaining in the vehicle industry for both the majors here in Adelaide and they are taking up 3 days every week for the next 4 to 5 weeks, Commissioner.

PN143

HIS HONOUR: Well, this matter originally arose out of bans on communications and effectively it was a 99 that was I suppose concerned with industrial action peripheral to the real issue about contractors agreements. That is essentially the case, isn't it?

PN144

MR KANE: That is essentially correct, your Honour.

PN145

HIS HONOUR: Yes, and you are applying what, for an adjournment what indefinitely?

PN146

MR KANE: Well, we are adamant that we would like to see those two particular clauses sorted out as quickly as possible by ongoing negotiations with the company, bearing in mind that the availability of people over the next 2 months, there's a horrendous amount of work going on in industrial relations and in Adelaide at the moment with the vehicle and the component sector and belated sectors for enterprise bargaining, and it is just effect getting to these meetings.

PN147

HIS HONOUR: Do you envisage this contractors agreement still being finalised independently of the EBA bargaining round, if you can reach agreement on these points, then presumably it is something that might eventually be tapped into the EBA?

PN148

MR KANE: It quite possibly could but the problem of the core and non-core business as outlined in a document that the company put to the unions on the 30 April has major ramifications for maintenance work at the Elizabeth site. It is something quite new and it might have to be - that particular item might have to be negotiated as far as the enterprise agreement is concerned.

PN149

HIS HONOUR: I see, yes.

PN150

MR KANE: Thank you, your Honour.

PN151

HIS HONOUR: Yes, thank you. Mr Watson, did you wish to add anything?

PN152

MR WATSON: No, not to add too much, your Honour, just simply say that I concur with all the submissions made by Mr Kane that it is difficult at this time to get together with the company. We've not ruled out trying to work through the initial dispute that was placed before you independent of the EBA negotiations but there is a significant issue around contracting as that does form part of the agenda of the enterprise bargaining agreement. I should appreciate, your Honour, we work in a single bargaining unit with all unions, within Holden's, as we do in all of the vehicle industry.

PN153

We can't just unilaterally make a decision and say we are going to go outside and do something different. We have to be consistent with the single bargaining unit. So that creates another difficulty but we at no time with the company took the position that we are not going to deal with this, try and fix it, we've gone along quite constructively I believe in trying to resolve the issue about that particular - those parts of the agreement.

PN154

HIS HONOUR: Yes, thank you, Mr Watson.

PN155

MR WATSON: Thank you.

PN156

HIS HONOUR: Ms Gray?

PN157

MS GRAY: Yes, your Honour. We are dealing with two issues I know. One is the threshold issue and the other one is the report back and I've kind of prepared my response in both aspects for you. So if I start with the adjournment side of it and try to take into consideration what Joe and Jim and have put forward. There have been weekly meetings, your Honour, and union representatives have shown commitment to attending these meetings, albeit I've understood the difficulties of the organisers to be able to attend that at times.

PN158

There has always been an organiser present at these meetings albeit not all three. We were all aware prior to the last hearing that we were in a position of stalemate. When I say that, I say that we have spent many hours with the senior shop stewards over extended period of time to try to get agreement if you like on this contractors agreement - document, and unfortunately we have not been able to move to any position which opens up a window to discuss compromise and hopefully a win win. So even in this month of weekly meetings and we held them on a Monday and every Monday we met, so with this, we have not been able to reach any small step if you like to reach compromise.

PN159

I will address the issue of some of the changes that we have talked about. To assist the union organisers, we are happy to adjourn this report back to a date as long as it is in the not too distant future but we are concerned about this delay and prepared to report back as I said today on the status. We've commenced our EB partnership discussions as has already been said. They continue today but they probably won't culminate until August 14 of this year. The company needs to continue this matter to reach a timely compromise as our managers need to move on from the current agreed status quo as soon as possible to ensure proper management of their business.

PN160

The union are happy with the status quo. The company is not, your Honour. We entered into it in good faith and still do. The words that we sent to you were actually words given to us by the union and we adopted them happily to continue with these meetings. However, as long as it is understood that that status quo is certainly not a position that we want to find ourselves in until August. I can leave it there, your Honour, I suppose as to the adjournment issue. If I was to discuss the report back, I would like to go into a much lengthier discussion.

PN161

As I say, we are happy to adjourn. We need the meetings to continue, taking into account the organisers inability perhaps to all be present at those meetings and I suppose that is the number one issue for me. If I'm going to do a report back, I can continue on.

PN162

HIS HONOUR: I'm just going to - I suppose the concrete path that you want is getting meetings difficult. If there is a stalemate, how do you see the stalemate being resolved?

PN163

MS GRAY: Well, this again I suppose goes back into my report back, so perhaps if I just continue with that.

PN164

HIS HONOUR: Yes.

PN165

MS GRAY: All right

PN166

HIS HONOUR: I don't see any difficulty in indicating it.

PN167

MS GRAY: No.

PN168

HIS HONOUR: I mean, you are agreed that there should be an adjournment.

PN169

MS GRAY: Yes.

PN170

HIS HONOUR: Perhaps if you put on the record the concerns that you have, they might assist the unions in addressing - - -

PN171

MS GRAY: Certainly.

PN172

HIS HONOUR: One matter that I will want some comment from if there is to be a continuation of this proceeding is whether it might not more appropriately be conducted by Commissioner Foggo. She is across what is happening in the vehicle industry - has come back from a tour of Europe where I gather she is gung-ho to come to grips with these sorts of issues - perhaps I am exaggerating a bit - but at least she will be familiar with what is happening with other sites. I'm not withdrawing my services, but it occurs to me that if there is to be some massaging of both of you, then, she might be in as good a position as anyone to do it and she will be a bit more available than I will be in person, because I would like to escape from video conferences but go ahead, Ms Gray.

PN173

MS GRAY: In regards to that matter, Commissioner, the company has no problem whoever might reside over our issues.

PN174

HIS HONOUR: Yes.

PN175

MS GRAY: So be it yourself or Commissioner Foggo, we have no problem with either. If I start with what I call a report back for you. Four meetings have been held, one meeting per week since the last hearing. Trades and the three senior shop stewards - trade senior shop stewards have been invited and have attended where possible. At one meeting we asked our senior executive in-charge of operations at Elizabeth to address the meeting, to talk with the group about the need for change, the future direction of the company in regards to growth and what the company requires of its trades people to continue with this growth plan.

PN176

At the other meetings we discussed the old contractors' agreement that you have a copy of, your Honour. The outcomes of these discussions were that apart from updating of words in some clauses - and this is what Joe rightly refers to - there were two clauses, clause 1 and 5, which we could not agree on the meaning of "application of". I suppose I stress that as a difference to the interpretation that we want to change it. It is just that, I suppose, the wording in there has to be explained more fully and we have to come to agreement on what those words actually mean. Now, that obviously I think at this stage means that we have to re-write that clause because we have differing opinions on the application of the clause.

PN177

To explain their opinion clearly managers met on a number of occasions. Because we had the meeting where: hey, you know, 1 and 5 is just not agreed on, no matter which we talk about it, and as I said previously not just the last month of meetings but many, many meetings prior to that these were the two clauses that were always contentious. The managers decided to meet not on these Monday meetings, but during the week to discuss where they needed to explain more fully how these two clauses impact on their business. From that they produced what I will call a "Holden's Contractors' Procedure". I would like to give you a copy, your Honour, but I might need to fax that to you. I have got one here but not a copy for you, and that is the procedure Joe was alluding to.

PN178

It was not meant, if you like, to add to the Contractors' Agreement. It was not produced to indicate that this would be an agreed position because we already knew from previous discussions that we were pretty well polls apart. It was meant, I suppose, to try and bring us closer into discussion about how we would reach a compromise, so it wasn't meant to be put into the agreement. It was just meant as a discussion point to say: this is - if we were to introduce a procedure by which managers need to run their business, this would be the document that we would want.

PN179

HIS HONOUR: Very well, I think what I will do, so as there is some clarity. I will mark as exhibit Holden's 1, I think this was a covering sheet forwarded on 9 April, which was information relevant to the hearing and was referred to at the first hearing. It was the resolution of 6 April of the relevant members. Appendix 2 to it was Contractors' Agreement 1991. There was then the: Elizabeth Trades Weekend Overtime Share Register, that was appendix 3 to it. And appendix 4 was: Resolution of 31 January.

EXHIBIT #HOLDEN'S 1 DOCUMENT FORWARDED WITH APPENDICES 2, 3 AND 4 DATED 09/04/2001

PN180

HIS HONOUR: I will mark provisionally, subject to you forwarding it, and I gather the unions already have a copy the Holden's Contractors' Procedure Discussion Document, perhaps I will call it that.

EXHIBIT #HOLDEN'S 2 HOLDEN'S CONTRACTORS' PROCEDURE DISCUSSION DOCUMENT

PN181

MS GRAY: Yes, sir. And, yes, they have got a copy.

PN182

HIS HONOUR: Status quo document that was forwarded to me on 11 April - received on 11 April.

EXHIBIT #UNIONS 1 STATUS QUO DOCUMENT

PN183

HIS HONOUR: So far that Holden's Procedure Discussion paper, there has been no detailed response, although Mr Kane has indicated it has caused some concern.

PN184

MS GRAY: Yes, your Honour. The union actually rejected this procedure outright and asked the company to reconsider the old Contractors' Agreement. Their proposal was to put into words - sorry, to put their words, or new words to clause 1 and 5. The company agreed to this, your Honour, with the clear understanding that the union understood our position and that without some pain, if I can put it that way, on both sides we could not reach a compromise. At the meeting this week on Monday the union were expected by the company to present this compromise position, but that was not put forward and, again, our concern is that another week has gone by - another month has gone by as well - where managers are locked into the union status quo - union and company status quo.

PN185

HIS HONOUR: I must say listening to you I would have thought - or am I jumping to the wrong conclusion - that the distinction between work completed to timing requirements and work that it outside the capacity, resource, or skill to undertake is one which the - Holden's are seeking to approach by an identification of core and non-core activity?

PN186

MS GRAY: Actually, our procedure talks about job security, talks about core business, talks about non-core business, talks specialised work, emergency situations and talks about overtime, talks about supplementary labour, talks about manning levels, talks about project work and warranty work, so we have tried to give an outline of our position in each one of those areas so that, if you like, the Contractors' Agreement is without question.

PN187

Over the period of time this last month with the status quo prevailing as it is, we clearly acknowledge that there has been a couple of issues where some of the trades people on the shop floor - and we have 455 - have seen something happen and they have put their arm up and said: the status quo is not prevailing. So I am alluding to the fact that the consultation process that we have with the union under the Contractors' Agreement is strong. The executive manager is ensuring that it is adhered to and it is something that we can adhere to in the future, right, so part of the Contractors' Agreement as far as the consultation is no problem. The issue of what work contractors can do and therefore how it affects overtime is the problem that we have.

PN188

HIS HONOUR: Yes. Well, I wonder whether I could try this for size. It would appear - I don't want to direct the unions to respond in detail with what changes they seek to clarify the words:

PN189

Such work can be completed within timing requirements.

PN190

Or that phrase generally in clause 1, and the words in clause 5 that they say are an issue, but my suggestion would be that and that you work through the document because I think I might have omitted to mark Holden's 2 as the Holden's Contractors' Procedure Discussion Paper, with a view to my identifying perhaps as an appendix the points about which you are supposed to accept, or not accept - work of that character fitting within either of those descriptions. In other words, I think that there should be a re-drafting - if the application of those phrases are the issue that the union side should re-draft and put a proposal forward based upon the points of agreement, or disagreement in relation to Holden's 2.

PN191

At least that way I think you are coming down to brass tacks about what work in that listing and that procedure you accept should be done and, in fact, I think if you are thorough about it, the version that the union has produced should say: this work will not be done. That way at least you have got an issue about whether for instance - I am just picking one at random - it might be: nonsensical emergency duty, will be able to be staffed by supplementary labour, or won't be able to be staffed - the company wants it to be - the unions don't want it to be - but to spell out with particularity as an attachment, illustrations of situations that need the requirements of paragraph 1 or 5.

PN192

I am sensitive to what the company is saying about just how long the status quo agreed, I think by direction from the Commission, prevails. That status quo might have operation and life independently of anything I say, but to the extent that it is dependent on this occasion on a direction from the Commission, I would be concerned if it is going to run virtually indefinitely simply to preserve the matter from debate that you cannot resolve. I have in mind to set a deadline of 2 to 3 weeks.

PN193

I will consult with Commissioner Foggo for you to come back before her with progress made in relation to that sort of point and she can consider then whether the direction on that was part of the reason why I wanted this matter to come on today because I was conscious that I had, in a sense, intervened to smother from both sides reaction that was building up about this and I felt I had some obligation, rather than coming back perhaps ineffectively in a video conference, to come to grips with what my direction might have done. Is here any difficulty about my issuing a direction broadly in those terms.

PN194

One, that the unions respond in detail, but by proposing a form of amendment to clauses 1 and 5, addressing with particularity the concrete propositions in Holden's 2 as illustrations of the type of work that would be done, including those that would be permitted, or should be permitted and those which the unions object to because that could be framed from your point of view as saying: well, we won't do this, or this should not be brought in under this category. At least you are taking direct issue with specifics and that that process should be completed as soon as practicable against a deadline that there will be a report back to the Commission on a date to be advised at which consideration will be given if necessary to amending the direction made as to the status quo that is being preserved.

PN195

Now, that mean that you have got to resolve also the issue about - that Mr Kane I think has advanced as to whether this is a new claim - I think it was put in that context, but I think we all know that agreements often have new claims, or old claims, there are simple ways of working them through, but I am not disputing that it is an issue that needs to be preserved, but you might also have to work out what the old agreement means in this context, particularly if it goes back to '91 and is the basis of your practice, which I think is the observation that were probably made at the first hearing. Is there any objection to that course?

PN196

MS GRAY: No, your Honour.

PN197

MR KANE: No, that is fine.

PN198

HIS HONOUR: Very well. Well, I think you understand it. You are probably going to do most of those things anyhow, but at least it gives some clarity to the Commission to where you are going and you have got some understanding from us that the matter will be brought back on. Is there any particular date that would be more satisfactory than others to you?

PN199

MR WATSON: Your Honour, the difficulty we have from the union's perspective is that we are locked into 3 days each alternate week in two states with negotiations with Holden's through to - sorry, and 3 days of the alternate weeks with Mitsubishi - this would be the middle 3 days of each week, right through until June 21. Now, I think in line with our earlier submissions - and certain the foreshadowed recommendation that you put before us - we have no problems subject to our usual constraints with the enterprise single bargaining unit, in trying to continue and work through this issue in the available time outside of those negotiation periods. So I advise the Commission that for the simple reason is it is recognised there is some pre-determined dates already that constrain us, but we will do our endeavours to work through during that period.

PN200

HIS HONOUR: Are you all going to Melbourne on alternate weeks? That is a possibility I suppose.

PN201

MS GRAY: Yes.

PN202

MR WATSON: Yes, we are, your Honour.

PN203

HIS HONOUR: Perhaps I can ask Commissioner Foggo to liaise with you to pick a date and it will be around the third week, I would have thought, that is what I will suggest if she can. What is that? I don't have a calendar here. That would put it somewhere in the week commencing 4 June if that is practicable. What you can do is after I have consulted with her, perhaps if she speaks to - or her Associate contacts you, Ms Gray, Mr Watson and Mr Kane.

PN204

MR WATSON: Your Honour, maybe if you give indications to try and suggest a date on Friday 8 June. At this early juncture we may be able to try and preserve that - - -

PN205

HIS HONOUR: Right, well, I will suggest fairly strongly to her that it is Friday 8 June and if there is a problem, perhaps I will retain the file for that purpose.

PN206

MR WATSON: Okay, thank you.

PN207

HIS HONOUR: Thank you. Is that agreed with you?

PN208

MS GRAY: Yes, that is fine, your Honour.

PN209

HIS HONOUR: Okay, well, we will get back and there will be a listing of that in due course but, I have to say, I think we are the minor part in this ..... in your respective operative systems to try to make you reach agreement yourselves. If for some reason that proves to be grossly inconveniently jointly, then, simply make a contact but I would expect it to be by consent because I am trying to suggest to you that the Commission goad you into getting this matter off your agenda. Very well. Well, the matter will be adjourned provisionally to June 8 at a time to be advised, or an alternative time if that is absolutely essential, but I think you can probably take June 8 will be all right. Thank you.

ADJOURNED UNTIL FRIDAY, 8 JUNE 2001 [11.20am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #HOLDEN'S 1 DOCUMENT FORWARDED WITH APPENDICES 2, 3 AND 4 DATED 09/04/2001 PN180
EXHIBIT #HOLDEN'S 2 HOLDEN'S CONTRACTORS' PROCEDURE DISCUSSION DOCUMENT PN181
EXHIBIT #UNIONS 1 STATUS QUO DOCUMENT PN183