C2001/2738, Transcript of Proceedings [2001] AIRCTrans 1230 (21 June 2001)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 4, 179 Queen St MELBOURNE Vic 3000
(GPO Box 1114J MELBOURNE Vic 3001)
DX 305 Melbourne Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS


O/N 7714
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER SIMMONDS

C2001/2738
C2001/2739

EASTERN REGIONAL LIBRARIES
CORPORATION

and

AUSTRALIAN MUNICIPAL,
ADMINISTRATIVE, CLERICAL
AND SERVICES UNION

Notification pursuant to section 99 of the Act
of a dispute concerning enterprise bargaining
negotiations

APPLICATION FOR AN ORDER TO STOP
OR PREVENT INDUSTRIAL ACTION

Application under section 127(2) of the Act by
Eastern Regional Libraries Corporation for an
order to stop or prevent industrial action

MELBOURNE

2.22 PM, WEDNESDAY, 30 MAY 2001

PN1

THE COMMISSIONER: Yes. Could I have the appearances, please.

PN2

MR WHEELAHAN: I don't seek leave to appear on the section 99 but I do seek leave to appear if the 127 application proceeds, and I am here with MR J. BINNION, who is the Chief Executive Officer of the applicant, and he will appear on the section 99 application.

PN3

THE COMMISSIONER: Yes, thank you, Mr Wheelahan.

PN4

MS J. KARSLAKE: I appear on behalf of the ASU. I am here with representatives of the Eastern Regional Library Corporation, J. TRESSIDER and M. HALL.

PN5

THE COMMISSIONER: Yes. Thank you, Ms Karslake. Do you have any objection to Mr Wheelahan's application? Leave is granted, Mr Wheelahan.

PN6

MR WHEELAHAN: We do seek to move to conference if we could, unless you want to hear a bit about it from me first.

PN7

THE COMMISSIONER: Well, I am interested to hear about the 127 because section 127(3) requires the Commission to hear and determine an application for an order as quickly as practicable. Now, there is also an obligation to attempt to conciliate it, but I really do need to know whether you wish to proceed with the 127.

PN8

MR WHEELAHAN: I will just get instructions. I am instructed by the Chief Executive Officer if we could adjourn into conference first that would be preferable, but if you need a definitive answer I will seek further instructions.

PN9

THE COMMISSIONER: Yes. Well, instructions should have been obtained before you lodged but, Ms Karslake, do you have any objection?

PN10

MS KARSLAKE: Well, Commissioner, I would actually like to clarify what the issue is. As the ASU sees it we have issued a bargaining period notice and complied with the requirements of the Act.

PN11

THE COMMISSIONER: You have not seen the 127 application?

PN12

MS KARSLAKE: I have just received it now.

PN13

THE COMMISSIONER: Because on there they assert that there is no bargaining period.

PN14

MS KARSLAKE: No, a bargaining period notice was issued on 22 March 2001, and a notice of industrial action was faxed and sent by registered post on 24 May.

PN15

MR WHEELAHAN: But that is accepted. The case that is put is that the industrial action is outside of the notices given, that the notices don't comply with section 170MO in terms of the industrial action that is now sought to be taken and threatened to be taken. The notices set out intended action, and the library is now faced with alternative industrial - - -

PN16

THE COMMISSIONER: Which is item 2 of the application about the stop-work meeting. I mean, this is a 127 matter. It is an important - I mean, I don't know that parties should be subject to 127 applications just willy-nilly, but you are saying that the industrial action that has been proposed - I think it is specifically a stop-work meeting that is going to be conducted on Friday.

PN17

MS KARSLAKE: If the Commission pleases, there was an earlier notice of 24 May which included work bans etcetera and revenue collection bans. There is another notice that has been put out with regard to stoppages and which could include strike action, which commences as I understand it from Monday 4 June at 8.30.

PN18

THE COMMISSIONER: Yes, no, well, there is the stop-work meeting proposed for Friday, 1 June which wouldn't come within that. Anyhow, you have sought the clarification, you have obtained the clarification. Is that sufficient for your purposes?

PN19

MS KARSLAKE: Well, as I understand it, I am here before you to answer a 127, section 127, and as the ASU understands it we have issued all the appropriate notification, and we have been negotiating in good faith and we are not aware of any grounds that would prevent industrial action under our notification.

PN20

THE COMMISSIONER: Mr Wheelahan.

PN21

MR WHEELAHAN: Well, it will be put, and this is the Chief Executive Officer will put this, that we have really come to a deadlock, and I take the Commission as - - -

PN22

THE COMMISSIONER: Well, people can then take industrial action. That is what it is all about.

PN23

MR WHEELAHAN: Correct.

PN24

THE COMMISSIONER: Provided they give the proper notice. Now, if you have got an objection, technicalities, you know, we can deal with that, but it may be that some particular action may not be covered by a notice and you know, if they go ahead on that then they may be at some peril when the 127 can deal with that. Now, to the extent that you want me to deal with, you want me to attempt to conciliate the issues in dispute, that is fine, but it is not for the Commission, and there is plenty of precedent about this, it is not for the Commission to interfere with people's rights, and one of the rights they have is to take protected industrial action.

PN25

Now, if that is objectionable to those instructing you, I have got to say that is the law, and they better go and talk to the people who make the law, not to me.

PN26

MR WHEELAHAN: But that is not the complaint, Commissioner. The complaint is that there is also unprotected action being taken.

PN27

THE COMMISSIONER: What is the unprotected action that you specifically refer to?

PN28

MR WHEELAHAN: Well, it is in the annexure, and for example, the - I will just give it to Mr Binnion.

PN29

MR BINNION: Commissioner, if I make speak, the - - -

PN30

THE COMMISSIONER: They say they have got that. They say that they have said in their notice that there will be bans imposed. Now, whether the notice is sufficiently specific to allow them to put these bans on, that is an argument you can make.

PN31

MR WHEELAHAN: Yes, and that is the argument that we are making in our application. I have no dispute that people are able to take protected action and that they are entitled to under the Act and equally they are not entitled to take unprotected action. Now, that is what the application is about, the unprotected action. It may be that - - -

PN32

THE COMMISSIONER: Well, I will need some specificity about what the unprotected action is so that Ms Karslake is in a position to respond to it rather than a simple generalist version, because it is not clear from the face of it in your documentation.

PN33

MR WHEELAHAN: What I was - - -

PN34

THE COMMISSIONER: The stop-work meeting certainly is referred to.

PN35

MR WHEELAHAN: Yes.

PN36

THE COMMISSIONER: And then you say:

PN37

There is unprotected industrial action which is happening which includes those matters marked in appendix 1.

PN38

Now, when you say those marks - I think I understand now, that there are - the bans on placing holds for persons, not setting up passwords for holds on something, waiving or cancelling charges, not switching on public PCs, not making any bookings for computer use. I think that is band 3s rather than bans 3s:

PN39

...won't work on the reference desk or answer information questions and bans 5 will not work on the circulation desks.

PN40

These were not - have not been specified.

PN41

MR WHEELAHAN: Correct.

PN42

THE COMMISSIONER: Now, why do you say there is a need to be specific?

PN43

MR WHEELAHAN: We say - well, the Act says that you have to specify - - -

PN44

THE COMMISSIONER: That degree of specificity?

PN45

MR WHEELAHAN: Sorry, this annexure, yes. Well, what we say - - -

PN46

THE COMMISSIONER: No, no. The annexure says, as I read it:

PN47

There is unprotected industrial action which is happening which includes those matters marked with an asterisk in annexure 1.

PN48

And I have just read out the matters that are marked with an asterisk.

PN49

MR WHEELAHAN: Well, use those, for example, let us take not switching on PCs. In the notice it says "work bans", and what we say is to use the phrase simply "work bans" does not make the notice comply with section 170MO.

PN50

THE COMMISSIONER: I understand that, and what I want is some sort of authority that says that that is insufficiently specific for the purposes of a 127 notice. It is an area about which there is some uncertainty in my mind, anyhow.

PN51

MR WHEELAHAN: This is the case of Construction, Forestry, Mining and Energy Union against - - -

PN52

THE COMMISSIONER: You can sit down, Mr Binnion. There is no need for you to stand.

PN53

MR WHEELAHAN: Against Yallourn Energy Pty Limited, and it is a Federal Court of Australia case report 4 August 2000, and at paragraph 16 which is on page 6 the terms of that paragraph is the authority that I would rely upon.

PN54

THE COMMISSIONER: Yes. Now, what does the notice say in this case, because I just don't have the notice before me.

PN55

MR WHEELAHAN: I will hand up to the Commission a copy of the two notices.

EXHIBIT #W1 NOTICE DATED 24 MAY

EXHIBIT #W2 NOTICE DATED 28 MAY

PN56

MR WHEELAHAN: And in exhibit W1 I make reference to the nature of the attended action, and it is the latter two points, work bans and work to rule, and it would be the submission in reliance on the case I have just submitted of Yallourn Energy that a phrase such as "work bans" is not sufficient to make the notice comply with section 170MO, and hence the action - - -

PN57

THE COMMISSIONER: The work to rule might though, mightn't it, if there is only one rule? I mean, it depends on - - -

PN58

MR WHEELAHAN: Sorry?

PN59

THE COMMISSIONER: It does say: normal industrial English, and: work to rule may have a meaning to these parties.

PN60

MR WHEELAHAN: Yes, it may, but I asked the Chief Executive Officer what that meant and he said he didn't know what industrial action that meant they were going to take, what work to rule was.

PN61

THE COMMISSIONER: So there is no rule that says that band 3 people shouldn't work on the reference desk or that band 5 shouldn't work on the circulation desk?

PN62

MR WHEELAHAN: I am instructed no.

PN63

THE COMMISSIONER: So you assert. Right. Now, why would - I think that probably reads: do not waive or cancel charges. Why would that not fit within the revenue - I mean, I suppose they could - I would have thought that that particular element goes your way.

PN64

MR WHEELAHAN: Yes, the - - -

PN65

THE COMMISSIONER: I mean, if you want them to take that off their action, then they will be waiving and cancelling the charges and they won't be on the account. Do you want that, do you?

PN66

MR WHEELAHAN: Mr Binnion would like to respond to that.

PN67

MR BINNION: With respect to the Commission, if I may answer that question. We have a very hard policy, that is if you - - -

PN68

THE COMMISSIONER: Look, I understand all that. What I am saying is, that it is a revenue collection ban - no collection, fines or fees. That would encompass them not doing what is in that - I mean, I take that reads "do not", not "do now waive". Now, I would have said that if they were going to waive or cancel charges that would fit well and truly within the revenue collection ban. Now, if you don't want them to do that, I am sure they will agree, because it fits within it, doesn't it?

PN69

MR WHEELAHAN: You may well be correct, Commissioner, and it may be that what has been asterisked, if you don't accept that it is without them - - -

PN70

THE COMMISSIONER: Well, I would have thought that you would be happy with that. I mean, you mightn't be happy with it - if there was a revenue collection ban then that is in fact reducing the impact of that ban on the enterprise. Now, if you don't want to reduce the impact of the ban on that enterprise, that is fine. I am sure they will be - I mean, that is your request. You are saying that that is unprotected action, and you might be right, because it doesn't come within the - in my view doesn't come within a definition of revenue - I mean, subject to hearing from Ms Karslake.

PN71

MR WHEELAHAN: Yes.

PN72

THE COMMISSIONER: The failure to waive or cancel the charges and leave them on the account probably doesn't come within the description of the ban, but you know, do you understand my point?

PN73

MR WHEELAHAN: I do understand your point.

PN74

THE COMMISSIONER: Now, I don't know about the: Do not place holds for patrons, and: do not set up passwords for holds on whatever it is, whether that comes within the heading of the revenue collection bans, no collections, fines or fees, but I suspect there is probably a fee or something.

PN75

MR WHEELAHAN: The holds, apparently, and I understand as being holds on books and so-forth, so it is not actually to do with revenue.

PN76

THE COMMISSIONER: And there is no revenue associated with that to make a charge.

PN77

MR WHEELAHAN: No, no.

PN78

MR BINNION: Yes.

PN79

MR WHEELAHAN: Is that correct?

PN80

MR BINNION: There is revenue.

PN81

MR WHEELAHAN: Sorry.

PN82

MR BINNION: If I may, Commissioner, with the first one on the: Do not waive or cancel charges, our policy is if you owe the library service money you cannot borrow library books.

PN83

THE COMMISSIONER: I know what your policy is. I understand that. Look, the position, Mr Binnion, is you may be absolutely correct about that, right, but if they put a ban on revenue collection and fines and fees there will be no record of them, and if you want no record of them, that is fine. It would be protected action, because it would come within the ban on revenue collection. I have got no difficulty with that being outside the ban, and if they don't do that then they don't do it.

PN84

MR WHEELAHAN: I agree with you, Commissioner, and I - - -

PN85

THE COMMISSIONER: And then you have no records of who owes you money.

PN86

MR WHEELAHAN: I have instructions that the first one: Do not place holds for patrons, does not involve revenue.

PN87

THE COMMISSIONER: And the second one?

PN88

MR WHEELAHAN: The same instructions, Commissioner.

PN89

THE COMMISSIONER: Yes, right. And the work bans you say, well, had they been specific about it there would have been no problem, but there is no specificity.

PN90

MR WHEELAHAN: Correct.

PN91

THE COMMISSIONER: I understand all that. Ms Karslake, you understand that now, I think? Now, the stop-work meeting that is proposed - - -

PN92

MR WHEELAHAN: On Friday.

PN93

THE COMMISSIONER: - - - doesn't meet the requirements of W2 because it is before the time that is specified for the matter. Yes, okay. Well, I think we all understand now what is being put.

PN94

MR WHEELAHAN: Yes. So, that is the case of the applicant.

PN95

THE COMMISSIONER: Yes, thank you, Mr Wheelahan. Ms Karslake.

PN96

MS KARSLAKE: If it please the Commission, I would like to respond in a few ways. First of all, the list, this is annexure 1, which has come with the application from the other party that I have received today, I would just like to point out to you that the heading is actually suggested work bans. I haven't actually seen this document before today. There is a charge associated with the holds for patrons. If there is a need to clarify or provide the employer with additional notice that these are the actions that members are wanting to proceed with, we are happy to provide further notice.

PN97

THE COMMISSIONER: But you might have to give the 48 hours' notice, that is the point.

PN98

MS KARSLAKE: Yes. As for the issue of the stop-work meeting, a letter was sent to Mr Binnion, but we were aware that there wouldn't be sufficient notice, that is why another notice was issued on 28 May for proposed actions on the Monday. There is at this stage no plans to proceed with a stop-work meeting on the Friday, although discussions with the CEO have occurred regarding a possible need to have a meeting with members. We are not aware that there is a need at this stage.

PN99

As I understand it, there is also, and whilst I can't refer to it at the moment, there is another decision which our branch is aware of with regard to what complies with sufficient detail or specificity in bans, and I would need to come back with further information about that. I don't believe I have anything further to add.

PN100

THE COMMISSIONER: I think it might be appropriate at that point to go into conference, if there is no objection.

NO FURTHER PROCEEDINGS RECORDED

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #W1 NOTICE DATED 24 MAY PN56
EXHIBIT #W2 NOTICE DATED 28 MAY PN56