AG2001/924, Transcript of Proceedings [2001] AIRCTrans 1153 (18 June 2001)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT HARRISON

AG2001/924
C No 60420 of 2000

Application pursuant to section 170NA(1)
by ALHMWU re negotiations in respect of
agreement

Application pursuant to section 111AAA
by Corrections Corporation of Australia
(now called AIMS Corporation) for the
Commission to cease dealing with part of
C No 60156 of 2000

SYDNEY

2.05 PM, WEDNESDAY, 23 MAY 2001

PN1

THE SENIOR DEPUTY PRESIDENT: May I have appearances in Perth, please?

PN2

MR J. RIDLEY: Yes, I appear on behalf ALHMWU.

PN3

MR R. GRIGOROFF: Your Honour, I represent AIMS Corporation.

PN4

THE SENIOR DEPUTY PRESIDENT: If you for some reason you want a short period of time to talk about any matters, let me know. I've called several matters, well, two matters in particular but there's another related matter not listed this afternoon, I've called them all on to ascertain the current views of the parties in relation to the assistance the Commission can give and secondly, whether I need to hear further submissions in evidence in relation to a matter in which I'm decision reserved. I regret I have been decision reserved for some time but I want to try and bring that matter to completion.

PN5

I've also taken this opportunity to call them on as I need to be assisted in relation to whether there have been any changes to legislation in Perth that might in some way have impacted upon the previously existing state Workplace Agreements legislation, I'm not entirely sure if I've accurately described the legislation in existence. There has been existence and in respect of which registered workplace agreements were made and their status was provided for.

PN6

I also need to be brought up-to-date as what the relationship is between AIMS Corporation and the previously existing corporations, well, CCA, Corrections Corporations Australia. In that context you are, of course, all aware that the dispute finding that is the basis of all of these applications which was one made by me some years ago, was a dispute finding that names as the parties to it the union and Corrections Corporation. I am not aware that there is in existence any subsequent dispute finding to which AIMS Corporation is a party and there might be some consequences for that.

PN7

So, in no particular order, they are matters I want the parties to address and it is timely that I was given an opportunity through the 170NA request being assigned to me that I could call this matter and raise all of those issues with you. We might start with you, Mr Ridley because the reason we are here is your request for the Commission to, I assume, to assist by way of conciliation in respect of a certified agreement you are hoping to achieve with AIMS. But when you do that perhaps you might refer to each of those other matters I've mentioned as well.

PN8

MR RIDLEY: Yes, thank you, your Honour, yes, I think we should deal with those first three matters that you've raised as preliminary matters. Perhaps if I can take the third one first, I might need the assistance of my colleagues but my understanding is that CCA simply changed its name to AIMS.

PN9

MS McCOMBE: I don't know what the actual date of transmission was but certainly, CCA changed its name to AIMS Corporation.

PN10

MR RIDLEY: In that context we've been simply saying that we still have a well found dispute finding with that employer.

PN11

THE SENIOR DEPUTY PRESIDENT: I understand, yes. That is a matter of some significance because I had rather thought that might not have been the case and it was an issue that needed to be attended to immediately. So, unless I hear from AIMS Corporation on that I would assume that there is in existence a finding of dispute to which it is a party. Mr Ridley?

PN12

MR RIDLEY: Thank you, your Honour. In reference to the second point, that is, have there been any changes in legislation? Although we hope for them and hope for them to be somewhat favourable to workers but no, have actually been tabled or deliberated on by Parliament at this stage. As a rough guesstimate we're thinking the middle part of the second part of this year and that's deliberately vague because we're a little unsure as to the legislative time table.

PN13

If we now go to the first matter which is the 111AAA matter, that certainly is something that we've awaited for the Commission's decision on but in reference to how we might deal with that today and without pre-empting everything that I'd like to say in reference to the 170NA application, the union has raised with AIMS the possibility of simply removing or withdrawing its application and consent to the roping in, that's something that has been considered by AIMS.

PN14

Of course, as you may recall, we did make various submission in relation to the standing or the legal status, if you like, of those workplace agreements and whatever I say now I wouldn't want to be seen as to be in any way contradicting the substance of those submissions that I made. But for the purposes of this matter I'll simply be referring to them that there are workplace agreements that purport to regulate the terms and conditions of employment.

PN15

There is however, an important matter which is one of the motivating forces for the LHMU making the 170NA application and that is, that AIMS have been in the process of negotiating a certified agreement with another union, being the Transport Workers Union. My understanding is that if that were to come to fruition that would be something that would be sought to be registered in the Federal jurisdiction and that, of course, would have implications for any State workplace agreement that in fact would still be arguably in existence.

PN16

Senior Deputy President, I'm not sure that I have very much to add in relation to those three matters but it may be useful to perhaps get a response or some commentary from AIMS.

PN17

THE SENIOR DEPUTY PRESIDENT: I suppose the only other issues that I should just record, I understand you have initiated a bargaining period?

PN18

MR RIDLEY: We have.

PN19

THE SENIOR DEPUTY PRESIDENT: That, of course, in relation to one of the matters listed this afternoon you've requested the Commission to assist to exercise any conciliation powers with a view to trying to achieve an enterprise bargaining agreement with your union.

PN20

MR RIDLEY: That is correct.

PN21

THE SENIOR DEPUTY PRESIDENT: All right, Mr Grigoroff, are you doing the talking?

PN22

MR GRIGOROFF: Yes, I am, Senior Deputy President.

PN23

THE SENIOR DEPUTY PRESIDENT: Do you want to respond to each of the matters raised by Mr Ridley?

PN24

MR GRIGOROFF: Yes, in relation to the legislation I'm in the dark as much as Mr Ridley, that will happen in due course. At this point in time all AIMS employees are subject to the State registered workplace agreement which still has a life of I think, about two-and-a-half years. In relation to this PSA AIMS matter we see that clearly as transmission of business and as Mr Ridley has indicated, that means that AIMS is still party to that dispute, it's simply, if you like, a name change.

PN25

With respect to further hearing of the matter under 111AAA I think what might be better would be if I were now to appraise you of what's transpired since probably the beginning of this year in relation to how we got to the point of entertaining a certified agreement with the Transport Workers Union. In about March of this year the Transport Workers Union approached the AIMS employees and signed up approximately 120 of the 240 employees.

PN26

AIMS saw the TWU in the context of the bargaining agent pursuant to the State Workplace Agreements Act, there's a provision in there for a bargaining agent and that an employer is obliged to see that agent on behalf of the employees in respect to whatever is contained in the workplace agreement. So, they approached AIMS with a list, if you like, sorry, the same as a normal log of claims except they were pursuing it in the context of a workplace agreement.

PN27

Along the way AIMS spoke with both the TWU and the Miscellaneous Workers Union about what its preferred position was that it wanted which was a certified agreement under the Federal Act and that we had no preference as to who the industrial party or parties might be. Where that is at right now, that agreement is nearly finalised, there are a few minor points that the TWU and AIMS are discussion. Once that is finished, then the parties intend to go down the path of seeking registration of a certified agreement.

PN28

What has happened now also is the TWU now represents approximately 190 out of the 240 people. We have spoken to both parties on a few occasions about what the preferences are for AIMS, and our view is that in terms of reaching agreement, that the issue of who the industrial parties might be is not something that AIMS sees that it can dictate to. I guess it's a matter that something needs to be sorted out between the unions. Thus far the Miscellaneous Worker's Union has said that it wanted to be party to the agreement, and with my discussions with the TWU yesterday, they are not interested in having the Miscellaneous Workers Union as part to a certified agreement.

PN29

The reason I raise all this is if you look at the roping in application AIMS' point is that where does all this go. Within weeks there will be a certified agreement, presumably with the TWU, so our position would be that it would override a roping in award. Furthermore, we wouldn't have thought that given that the Miscellaneous Workers Union doesn't represent a valid majority of the members, and that the workers have indicated their preference to running with the TWU, that would be the best outcome in the circumstances with probably some maybe in agreement about who the parties to that agreement might be.

PN30

THE SENIOR DEPUTY PRESIDENT: Let's just pause there for a moment. I am just looking at the provisions of the Act, and trying to identify that section that I recollect would allow the Union, if it was able, to show it had even one member - - -

PN31

MR GRIGOROFF: 170J I believe it is, your Honour. That's certainly - more of us are prepared to do that, but my recollection your Honour is that that is a matter where there is a proposed, not an LK agreement, not where it's - - -

PN32

THE SENIOR DEPUTY PRESIDENT: We are not talking about an LK, are we, we are talking about an ongoing agreement. It used to be 170M, but I think it's no longer though - - -

PN33

MR GRIGOROFF: I think it was a 292A certificate or something?

PN34

THE SENIOR DEPUTY PRESIDENT: Yes, I can't immediately turn it up in 170M, but it was previously in that section, in relation to a certified agreement, if a union was able to show membership of just one person, they were able to be made a party. So let's just put that to one side, but I understand what you are saying, Mr Grigoroff, is that there is not a strong preference one way or the other by AIMS as to whether you have the TWU, the LHMU or both as parties. There seems apparently a strong view held by the TWU, is that fair to say?

PN35

MR GRIGOROFF: That would be correct, your Honour.

PN36

THE SENIOR DEPUTY PRESIDENT: All right. It's not very useful for the TWU, us having this discussion in their absence, but I have to say I have some real sympathy for achieving a situation whereby both of them would be parties if both of them are able to show membership and a desire, on behalf of the members, that they represent them. I think if that was established, that would have been the ultimate outcome of a certified agreement. Now, I put to one side as to whether the LHMU would be prepared to adopt the draft agreement that, no doubt, is currently in existence, or whether they would want to have something to say about any modifications of it, but putting that to one side I think the TWU would probably need to know fairly shortly what my view is. They probably need to know that it is highly likely that an agreement reached with that Union would come into my panel, and highly likely it would be assigned to me, so there is going to be another file that in due course might be listed with all of them. Anyway, you continue, Mr Grigoroff.

PN37

MR GRIGOROFF: Just on that point, we have told both parties that our position on several occasions is that we are quite happy to have one or two parties to the agreement. I guess that the Transport Worker's Union are sitting there saying "we have got 190 of these guys, why should we let any ..... that's not an argument.

PN38

THE SENIOR DEPUTY PRESIDENT: It's not an argument, I can understand how in a practical sense they might have persuaded themselves that that's the answer, but I don't know that that's the answer that would preclude legally the LHMU.

PN39

MR GRIGOROFF: Your Honour, what I was going to do after this hearing, I have already told the TWU what's happening this morning, and then what I propose to do after this sitting is to contact them and advise them what your position would be on this matter.

PN40

THE SENIOR DEPUTY PRESIDENT: They should assume, of course, that I have not precluded them from an opportunity to argue whatever they wish to consistent with the Act, but they probably also should be aware of the comment that I have just made. It doesn't shut the door on them trying to argue to the contrary, if they want that opportunity they will get it.

PN41

MR GRIGOROFF: If the outcome is that both unions are party to a certified agreement, I think that would be, to use layman's language, would put to bed the two matters you have got before you today.

PN42

THE SENIOR DEPUTY PRESIDENT: Well, it's a very neat outcome I have to say. There is only one, perhaps, loose end that we would have to tie up. What would be the award or awards upon which the certified agreement would be based for the purposes of the application of the no disadvantage test?

PN43

MR RIDLEY: Your Honour, I have a very clear view about that. We believe that the most appropriate award to try roping them into, which is the Security Officer's - - -

PN44

THE SENIOR DEPUTY PRESIDENT: Yes, I thought you would say that, I understand that.

PN45

MR RIDLEY: I do have a number of things to say in response, by the way, to Mr Grigoroff at some point too.

PN46

THE SENIOR DEPUTY PRESIDENT: Yes, all right. Mr Grigoroff, Mr Ridley early on in his submissions mentioned that he though that you were considering whether or not you might change your view about being roped into the security industry WA Award, the Federal Award. What's your current view on that, that of course providing an award against which a no disadvantage test would be applied for the purposes of keeping a certified agreement?

PN47

MR GRIGOROFF: The first position of AIMS is that they would oppose the roping in, but I don't think anybody has sat down and thought about, with all due respect, about what an appropriate award might be to underpin it. I guess I am open on the matter, because I am not sure that although Mr Ridley says it should be that award, I don't think - I haven't noticed that .....

PN48

THE SENIOR DEPUTY PRESIDENT: I would be surprised, given the provisions of that Award, either as they traditionally stood or as they will look when the simplification of exercise is completed. I would be surprised if that award provides a terribly high hurdle for the no disadvantage test. Frankly my view is the Security Officer's Awards don't tend to, so I am not too sure what the Transport Worker's Award is against which the test would be applied. It may well be that it provides a higher hurdle, so I don't see it as presenting that sort of difficulty for you.

PN49

MR GRIGOROFF: I don't know that anybody has sat down and really thought about what that should be, your Honour, so I guess that in coming here I wasn't prepared, if you like, to debate that issue, because I am not sure where the employer wants to go, but I can certainly after this conference raise that issue with AIMS irrespective of whether there is a certified agreement with the Miscellaneous Workers Union, or whoever.

PN50

THE SENIOR DEPUTY PRESIDENT: Of course, the issue of whether you are roped in to that award, or not, should not prejudice the unions having coverage of the workers being a party to the agreement, because the no disadvantage test can be applied against the State award, for example, so it doesn't really hold that up. It just makes it clear that there is in existence a Federal award covering at least some, if not, all of the employees, and I know that could be an area about which you could have an argument. It needs to be considered when the no disadvantage test is being applied.

PN51

MR GRIGOROFF: I think probably the first thing I should do then is to talk to the TWU, and get their views on what award should underpin that agreement, and then subsequent to that is make a decision with AIMS and then report back to you if you wish, your Honour.

PN52

THE SENIOR DEPUTY PRESIDENT: I am not aware that there is a Federal TWU award to which CCA and as a result of the transmission provisions now AIMS is a party, do you know it?

PN53

MR GRIGOROFF: The CCA or AIMS are not party to any awards of the TWU, either in the State or the Federal system.

PN54

THE SENIOR DEPUTY PRESIDENT: I understand, well that's a matter about which the TWU should have a think, because it's not as if they stand up, start from a position of advantage as against the LHMU, namely a position of being able to say "we already have a Federal award in existence", to which AIMS is a party. I assume they have got a finding of dispute, Mr Grigoroff?

PN55

MR GRIGOROFF: They haven't gone through the process of notifying the Commission that there is a dispute. They tend to file the application then allow 14 days to do all the other things, and then ask the Commission to register the agreement, but that hasn't happened yet.

PN56

THE SENIOR DEPUTY PRESIDENT: They would be looking at achieving an agreement under the division that relates to agreements with constitutional corporations rather than the division that relates to making agreement arising out of industrial disputes I assume.

PN57

MR GRIGOROFF: I have to say the same thing your Honour because I haven't been that closely involved in this issue.

PN58

THE SENIOR DEPUTY PRESIDENT: Well I think you're going to need to think about that because again they by reference to the union don't start from the position of strength that it does, it does have a finding of dispute with you. I'm not aware that the TWU does, that's also something that they need to bear in mind, clearly it being something they need to weigh up as to whether they're going to be too difficult about entering into an agreement to which there are two rather than one unions party. All right, in any event you say what you need to do is take all of that back and also take back to your client why would there be any reason why it may continue to oppose being roped into the simplified security award and if it was not opposed to that, that frankly is something that can be done in chambers. I doubt that there would be any need even to have another hearing about that. This is subject of course to something Mr Ridley might want to say but I would be surprised if he would oppose that being achieved.

PN59

MR RIDLEY: No I won't your Honour. I'm just wondering if could say a few words.

PN60

THE SENIOR DEPUTY PRESIDENT: Yes, go ahead.

PN61

MR RIDLEY: I had a slightly different spin on the history as you may understand me to say. What I'll do is I'll go through some of what I was going to say and then attend to a number of points that Mr Grigoroff has actually raised. We understand the activities of the union in reference to seeking a roping-in of the 101AAA application so there's not need for me to go over what we've just been talking about.

PN62

In the intervening period I would define as being sort of let's say August through to the end of last year our organiser Jenny Tester was relatively active in dealing with individual disputes that various members raised and would have liaised with and discussed these issues with a number of people within AIMS management or CCA as I think it was then known. There a number of attempts to try to get focused or concentrated action amongst our members who felt quite disempowered because one of the things to be cognisant of is that there are a large number of casual employees as opposed to full time or permanent employees, thereby I suppose giving people a sense of insecurity about what was likely to happen in reference to sort of future job prospects and a lot of that actually comes from a lot of the activities that's centred on the training course earlier in 2000 where we were very visible, very active in terms of recruiting people and seeking to in fact try to get rid of the workplace agreements.

PN63

As has been noted we initiated a bargaining period in January of this year and from that time on, and I have numerous pieces of correspondence and I don't necessarily feel that we need to bore everyone silly with all of those references at this point in time but we certainly made a number of attempts to try to engage with AIMS in negotiating an enterprise agreement. It then became subsequently apparent that the TWU had, and I find it difficult not to pull the punches on this one, but basically what the TWU have done is to poach a large number of our members.

PN64

The claims of having a membership of 190 out of 240 are in my view unsubstantiated, there is no doubt that AIMS is probably correct in asserting that there may have been at the early stages approximately 120 or so signed bargaining authorities but as we all appreciate that is not the same thing as union membership.

PN65

We have made concerted attempts, our assistant secretary Sharon Jackson along with our other assistant secretary Dave Kelly have met and sought to discuss these issues with the TWU, Federal Secretary Jeff Lawrence has written to the ACTU and the ACTU have now written to the TWU, it is quite clear in our mind that the activities of the TWU are blatantly in breach of ACTU policy in terms of these matters.

PN66

Can I simply, I can't emphasise this enough the TWU do not have any coverage, constitutional coverage whatsoever of these people so any attempt for them to get a dispute finding would be a difficult call and I would submit that respectfully. There is no doubt the TWU have employed what otherwise can be called as bully boy tactics, they've stood over our members, they've basically perpetuated all sorts of disinformation or misinformation about what the MISOs have been doing or not doing as the case might be, they've indicated in their recruitment campaign that in fact any pay rise or increase in terms of conditions that's been won by the TWU cannot go to a non TWU member. It is typical, unfortunately I have to say this, it is typical TWU sort of stuff.

PN67

THE SENIOR DEPUTY PRESIDENT: Just pause there for a moment, Mr Ridley, the significance of what you have just said I take it relates to the fact that in relation to an agreement that brought forward under division 2 of the Act then it has to be with a union that is entitled to represent the member in question and has in fact at least one member, both matters necessitating the consideration of the eligibility to be a member. Is that how the argue would go?

PN68

MR RIDLEY: Certainly.

PN69

THE SENIOR DEPUTY PRESIDENT: Yes I understand that.

PN70

MR RIDLEY: Yes would assert that your Honour. I don't want to obviously bag AIMS because what we're trying to do and what we've been trying to do for a long period of time is to engage constructively with AIMS with a view to reaching at first instance some form of award protection acknowledging that inevitably that would have required the necessity for negotiating some form of certified agreement to sit on top of that award.

PN71

Although one can see in the correspondence and derive I suppose from the interactions that I've been involved in most but not all there appears on the fact of it to have been some acceptance some commitment to actually negotiate with us but as I reflect upon all of that the reality was that we never actually, although we tried but we never actually, the parties, they never actually entered into substantive negotiations. We would actually come good with a proposal that may have emanated from or may have been an understanding from a negotiating meeting and then it would go nowhere.

PN72

In the meantime we discovered that notwithstanding the rhetoric and fostering of AIMS which was positive albeit shallow they were basically locked up with the TWU negotiating what by all accounts will be some form of substantive certified agreement. Now at the end of the day I don't think it's particularly useful or constructive to simply enter into some protracted debate about that. Our concern is that for as long as AIMS had unwittingly or otherwise simply engaged in a substantive way with the TWU and not with the Miscellaneous Workers Union, it's effectively strengthened the position of the TWU and of course disadvantaged the LHMU to the point where out of absolute frustration I sought access through the Commission via a 170NA application.

PN73

Now although our preference has clearly been to have an underpinning award and we don't resile from that and an agreement which would in fact be an agreement between us and AIMS and I might as an aside your Honour make the point that this debacle as I might suggest is in striking contrast to another major operational project that AIMS is associated with and that's the Acacia Prison where the CHA and the LHMU treating it pretty much as a Greenfields site are clearly co-operating and organising together and are having enterprise bargaining agreement negotiations pretty much as we seek so we cannot understand why on the one part, that is in relationship to Acacia there is some active engagement and recognition of our legitimacy in terms of covering people in Acacia Prison but when it comes to where we have equally legitimate coverage over court custodial and sort of prisoner security transport functions that AIMS notwithstanding their rhetoric are basically not engaged in any substantive way.

PN74

The catch cry to me has always been, the ball's in your court John, it's up to you to sort it out with the TWU. Well you know we have done our darnedest in terms of making very positive, and that's a matter on the record, approaches to the TWU saying, look isn't it better to join forces and have a co-operative approach because that way, or perhaps I'm too idealistic, that way you get a better result for the members. They have basically told us to, metaphorically speaking, "stuff off", and I use the euphemism as they told Greg Condi when he was in Perth earlier this month and he sought to have sort of negotiations or discussions with the TWU about this precise matter.

PN75

Now I understand at the end of the day the bench is not particularly interested in any sort of dirty stuff that's going on between unions but what I'm simply saying is that notwithstanding any reference that we have clearly an outcome that we would like to seek from this process is that we're legitimately seen as covering our members, and we do have members plural, and I'm willing to provide, not to AIMS but certainly to you your Honour evidence of that.

PN76

It is not AIMS business as to whether we've got one or 200 in my opinion but we believe that it should be a two union agreement because as far as I know there's no other unions that are biting at our heels negotiating and finalising a certified agreement with AIMS. I think given the circumstances that is an eminently sensible sort of outcome.

PN77

In reference to some of the comments that were previously made by Mr Grigoroff in the sort of tenor of, look your Honour, I'll go back and talk to the TWU to find out what decision they might make in reference to an award for the purpose of the no disadvantage test, unfortunately I can't help but notice that that is yet again exclusive talk. It is, we're here at the table, we're asserting our legitimacy in terms of negotiating an agreement or certainly become a party to an agreement and still AIMS somehow cannot understand that we have much more legitimacy than the TWU notwithstanding this debate about whether we've got one or 200 members, but at the end of the day we would argue that even if we only have one we still have a right to be a party to that agreement.

PN78

AIMS have indicated that it's not up to them to dictate or determine the parties to an agreement. I might sort of suggest that by simply excluding the ALHMWU that is like determining, not a dictum I understand but it is effectively determining by the process of exclusion as to who will be parties to the agreement and it seems to me that just simply humbling themselves in front of the TWU because of whatever the TWU have done is an inappropriate way I might suggest in terms of trying to resolve what is a dispute that should never have actually happened.

PN79

In reference to that comment about a valid majority, once again in a sense I made this point in a different way, no one union needs to have a so-called valid majority of the number of employees. It's not something that's applicable or appropriate.

PN80

To simply reinforce one of my earlier comments, your Honour, and in closing i'll simply say that in terms of the no disadvantage test - and I do take your points on board in relation to perhaps the award not being the most quintessentially wonderful in terms of, terms and conditions of employment, but having said that I think in terms of this overarching comprehensiveness and how it seeks to form a regulatory base for the security industry it has a higher degree of applicability.

PN81

Simply in closing, your Honour, I would say that I would welcome any attempts by yourself to try to get the TWU and the ALHMWU and AIMS together with a view to resolving this matter in a sensible way. In saying that I am somewhat concerned by AIMS simply going off and just having more one on one discussions with the TWU in a way which I believe is actively discriminating against ALHMWU and its members and I don't think he's particularly helpful so I would be respectfully requesting that there be some guidance issued in relationship to how we might proceed in this matter so that we can in fact alleviate if not reduce some of what I would see as avoidable tension and industrial disputation.

PN82

THE SENIOR DEPUTY PRESIDENT: Just one thing, Mr Ridley; where is the simplification of the Western Australian Security Officers Award? How far down the track has that exercise gone?

PN83

MR RIDLEY: The other party being principally CCI representing however members it has, we've virtually agreed to all but 10, I think it's approximately 10 outstanding points. We've before Senior Deputy President O'Callahan I think early next week with a view to trying to finally resolve those issues and then be able to pinpoint which of those issues ever can be resolved by the parties in a pretty sort of expeditious fashion or may need to be arbitrated, but the bulk of the award is effectively agreed.

PN84

THE SENIOR DEPUTY PRESIDENT: All right. Well, that's useful to know but it doesn't stop any roping-in award but it rather simplifies things in the event the award is, it allows for subsequent roping-ins to be somewhat simplified as opposed to having the more complex interim roping-in awards that we've had to deal with, over the last year a matter which I'll come back to you on again later too, Mr Ridley, it doesn't concern AIMS.

PN85

All right, Mr Grigoroff, is there anything you want to say arising out of what Mr Ridley had to say?

PN86

MR GRIGOROFF: I think we'll end up to an endless debate, your Honour. I guess where we are is just that, you know, and I agree with him that with respect to AIMS probably want as an agreement and we're not fussed about the industrial ..... and we'd look to the Commission to maybe suggest, give guidance as to how we might achieve that. I don't think I need to say any more about that.

PN87

THE SENIOR DEPUTY PRESIDENT: Do you have difficulty with providing a draft of whatever you're currently thinking about presenting for certification, providing a draft to Mr Ridley?

PN88

MR GRIGOROFF: None at all.

PN89

THE SENIOR DEPUTY PRESIDENT: That might be a start because he can then start to think about the content of that agreement. I know he's reserved his position on whether the TWU was intending to go forward by itself whether they would be able to establish the prerequisites as required under division 2 but he's putting that to one side and saying if the two of them go forward well there should be some way in which the Commission can accommodate the certification of an agreement but that's a matter that the TWU needs to give strong consideration to.

PN90

The ALHMWU will be entitled on what I understand has been said thus far to be granted leave to intervene it having been able to establish, it says it will be able to establish it has at least one member. So we might as well at least look down the track as to what can or can't be achieved unless the parties reach some consensus.

PN91

So I have to say that the best outcome here and the outcome I recommend that the parties start talking about is achieving an agreement presented for certification to the Commission. I have no set view as to whether it's presented under division 2 or division 3 but at the moment the TWU don't have a dispute finding so I don't know whether it therefore has to be presented under division 2 that perhaps you can inform the TWU of that, that I ask Mr Ridley in the interim to give consideration to the agreement that is currently being proposed and lets you know whether he has any significant difficulties with any of the particular terms and conditions in it, wishes to add some, or wishes perhaps to have some that might be peculiar to any particular subset of the employees, I just don't know. I assume they're all custodial and prisoner transport employees. I take it you don't put them into little divisions, Mr Grigoroff?

PN92

MR GRIGOROFF: No, we don't.

PN93

THE SENIOR DEPUTY PRESIDENT: That in the interim I ask Madam reporter, that you prepare this transcript as a matter of urgency and I provide it to both parties and I leave it to you, Mr Grigoroff to bring it to the attention of the TWU. That the TWU is also asked to advise my chambers as soon as possible as to who the relevant officer is that should be notified of any further report back, and that we do organise another report back very soon.

PN94

Do you want to say anything about all of that, Mr Ridley?

PN95

MR RIDLEY: Yes thank you, your Honour, I would. In reference to the provision of a draft obviously that would be extraordinarily useful. I think it would be perhaps appropriate if I may suggest that the parties, that is AIMS and the ALHMWU do have some agreement about the date of the provision of that draft. I'm happy to consult with them about, but certainly with fax machines and what-have-you and couriers it would be my suggestion that it could be done no later than close of business this afternoon if that was at all possible. I would be now seeking that that, and with a clear understanding that what would be actually forwarded to the ALHMWU is the latest draft and perhaps with a comment obviously with prejudice as to what stage they see the negotiations at this point in time, that's the first point I'd seek to make.

PN96

THE SENIOR DEPUTY PRESIDENT: Let's deal with these one by one. How do you react to that, Mr Grigoroff?

PN97

MR GRIGOROFF: I don't know that this afternoon is feasible but certainly by probably tomorrow afternoon.

PN98

THE SENIOR DEPUTY PRESIDENT: I don't think that's unreasonable.

PN99

MR GRIGOROFF: I don't have any problems with that at all. The document as I said earlier, your Honour, is almost finalised. There are a couple of little sticking points and it's sort of ready to go basically.

PN100

THE SENIOR DEPUTY PRESIDENT: All right.

PN101

MR GRIGOROFF: So I don't have any problems getting that to Mr Ridley tomorrow or by Friday at the latest.

PN102

MR RIDLEY: No, sorry. The very fact that I'm told that it's almost finalised actually tends to suggest to me that it's a date sooner rather than later. I can't really understand especially since the Miscellaneous Workers Union and AIMS are probably, I don't know, one or two kilometres away from one another but in any event there is a fax machine. I mean I'm willing to concede this afternoon but I do believe that close of business, and I'll call that 5 o'clock tomorrow is eminently reasonable in the circumstances.

PN103

THE SENIOR DEPUTY PRESIDENT: I think Mr Grigoroff is prepared to comply with that request and that's what I ask occur. In relation to how far down the track it has proceeded in terms of reflecting agreement between the TWU and AIMS, I can't ask Mr Grigoroff to do anymore than what he has already said. He thinks it substantially reflects agreement that's reached. Might I say this, Mr Grigoroff, do you know whether - I'm assuming that there has been no application made or no application filed in either the Perth Registry or any other Registry of the Federal Commission seeking certification of the agreement?

PN104

MR GRIGOROFF: There have been no applications made.

PN105

THE SENIOR DEPUTY PRESIDENT: Well, I would like information to be provided to my chambers if such an application is lodged by you or if it comes to your attention that such an application is lodged on behalf of TWU. I can't imagine that TWU would be able to do it without your knowledge because both of you have to sign the agreement and both of you have to file statutory declarations. As I indicated earlier, in the normal course of events, any agreement would be brought to my attention but I wouldn't want something to slip through the cracks.

PN106

I can't, Mr Ridley direct AIMS or TWU not to lodge something, I can only do what I've just done - indicate what I've just done should be observed and I can only indicate too, that if the matter is then assigned to me which it probably will be, any notice of listing will be brought to the LHMUs attention so as to allow them an opportunity to exercise any rights it has under the Act. Now, this would not be a good way to go because we're going to end up with some rather nice legal and other arguments and you're still not going to have an agreement but if it is the way that I have to tackle it, so be it. I would much prefer to be seeing if we can reach an agreement with both unions. So, back to you, that was your first point that developed into a few other mini points, Mr Ridley.

PN107

MR RIDLEY: In terms of a report back - no, perhaps before I get to a report back, I think it is incumbent upon AIMS and LHMU to in fact perhaps set a date, not necessarily in front of you because your time is obviously precious but I think to set a date today to meet within the next few days because I then will have had an opportunity to have read the agreement and obviously consulted with our organiser and members because that's obviously of critical importance to us. I think we need to be able to advance that relatively quickly. We're conscious that it is not an agenda set by us but we're certainly going to be quite reasonable in terms of wanting to increase if you like our participation in the process.

PN108

Having said that, I suppose the parties, I think, should be meeting as I said, early next week. I would then be looking at perhaps a report back either later next week or alternatively early in June or the first full week of June. I'm just wondering how that might sit with both AIMS and yourself.

PN109

THE SENIOR DEPUTY PRESIDENT: Well, I might start with you, Mr Rigoroff. What is your reaction to that?

PN110

MR GRIGOROFF: For me it is just a case of getting to the parties. The AIMS General Manager is in Brisbane until the end of this week so I would be meeting with him early next week and apprising him of things that have transpired today and whatever else happens between now and the end of the week. To me, by the end of next week seems to be reasonable in terms of a report back to your Honour.

PN111

THE SENIOR DEPUTY PRESIDENT: All right. It seems to me too that within the next day or so you'll both have the transcript of this hearing too and that might be of some assistance so as to note the various points that you all need to think about. Even though that is a timetable a little longer than you had hoped, Mr Ridley, I'm prepared to accommodate it and so to the extent to which I would be next involved I would have in mind setting a report back date to which I assume at least the TWU will be invited. It will up to them as to whether they attend but the notice of listing would be brought to their attention.

PN112

MR RIDLEY: Could I dare to suggest Thursday 31st.

PN113

THE SENIOR DEPUTY PRESIDENT: I can certainly provide a time subject to availability of video conferencing. Do you think you'll be able to get instructions, meet with the union and then be able to report back to me on 31st, Mr Grigoroff?

PN114

MR GRIGOROFF: It shouldn't be difficult, your Honour. I think I can accommodate Mr Ridley's request on the Thursday. If I have any problems, I'll know probably today or tomorrow anyway.

PN115

THE SENIOR DEPUTY PRESIDENT: Well, I can certainly give you a time on 31st and my associate can ring you. Mr Ridley, if for some reason that time wasn't available would you then be available for report back early in the week commencing 4 June or then are you going to take a period of leave or something.

PN116

MR RIDLEY: No. We do actually have a public holiday on Monday 4th, otherwise, I'm relatively free.

PN117

THE SENIOR DEPUTY PRESIDENT: Well, I could accommodate a report back in the afternoon of Tuesday, 5th and then not again until Thursday, 7th. All of those times will be available and the sooner we all agree on one them and we book a video link between Perth and Sydney the better. You talk about that when we adjourn and I'll ask my associate to ring you both this afternoon or first thing tomorrow morning and see if we can't at least nominate the report back date and send out a notice of listing for that. As I say, hoping in the interim I am advised as of the details of the relevant officer in the TWU who should be put on the notice of listing.

PN118

MR GRIGOROFF: And when we go, what I'll suggest to AIMS is that we actually commit to a meeting time prior to perhaps Thursday 31st, I think that would be appropriate otherwise I think it is going to jeopardise the voracity of any report back.

PN119

THE SENIOR DEPUTY PRESIDENT: You may need more than one meeting but that is for you all to sort out. It goes without saying that if things are moving along in a way in which you are all achieving something although a little more slowly than we're all envisaging now, a telephone call from anyone of you being made on behalf of the other to inform me that the report back now is a little early, that would be fine too and I'll just put it on at a later date. I wouldn't abandon any report back date unless that was done with the consent of both parties.

PN120

I'm inclined to think that probably then these several matters have moved on significantly from where they were some months back. I think then what I am going to do then is just now adjourn each of them to a date to be fixed for the report back and you know the possibility of when those dates will be. In the event there is anything that arises that has not been attended to or raised this afternoon, an application to my chambers or perhaps in the first instant, an urgent telephone conference could be accommodated but I don't think we would be able to get this video link again until the days we're talking about.

PN121

I think that is probably as far as we can go today. If in the interim you're exchanging any documents that you are both happy for me to read - I don't want you to be providing something to me that one or the other of you believes is inappropriate but if you are both happy for me to read so I'm better prepared for any report back, please do so. Unless either of you want to raise anything further, I intend to now just again ask Madam Reporter if the transcript could be prepared urgently and to adjourn. Anything final that needs to be said? I'll now adjourn.

ADJOURNED INDEFINITELY [3.05pm]