C2001/1683, Transcript of Proceedings [2001] AIRCTrans 1385 (4 July 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 7868

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT WATSON

C2001/1683

ONE STEEL MBS PTY LTD FORMERLY ATLAS STEELS
AUSTRALIA PTY LIMITED and ANOTHER

and

AUTOMOTIVE, FOOD, METALS, ENGINEERING,
PRINTING AND KINDRED INDUSTRIES UNION

Notification pursuant to section 99 of the
Act of a dispute re the consultative
process

MELBOURNE

10.06 AM, TUESDAY, 12 JUNE 2001

Continued from 6.6.01

PN791

THE SENIOR DEPUTY PRESIDENT: Yes, very well, there are no changes in appearance. Well, Mr Bunting, how do the company want to proceed?

PN792

MR BUNTING: Well, your Honour, the position is that we have the matter set down for hearing, as you will recall, on some dates, I think, during the week after next to resolve the matter by arbitration - by conciliation or arbitration, if needed. Last week your Honour made an order in the section 127 proceeding. That order was made available and served the middle of the day - thereabouts - or early afternoon on Thursday 8 June. Following that the company gave permission for a feedback mass meeting at the site on Friday 9 June. That was attended by Craig Johnson and Christopher Spindler of the union.

PN793

And following the feedback meeting there was a discussion between those two officers of the union plus delegates with Mr Kilpatrick and Mr McMorrow from the company. The attitude indicated during the meeting was a continued denial of industrial action and a continued, if you like, defiance of the arbitral process agreed to by the union on 27 November. The ban on overtime persists, something which the company regards as, clearly in defiance of your Honour's order and takes very seriously and it is looking to the appropriate steps to deal with that. But we still have the outstanding issues needing to be resolved.

PN794

It seems very difficult to resolve them by agreement. We think the only way to try to bring the matter to closure is for the conciliation and arbitration process previously agreed upon to be completed. Our application, your Honour, is that should - that conciliation and arbitration should now proceed with all speed. There are some dates listed the week after next but it would be preferable, we think, to bring it forward if that can be done. One other matter, the union in the section 127 proceedings appeared to be foreshadowing some additional jurisdictional arguments, that is, additional to the ones that they previously disclosed.

PN795

If they are to rely on additional grounds, we would submit, in fairness, that a direction should be made requiring that any additional submissions or grounds, whatever it might be, be notified to us and perhaps to the Commission, but certainly to us, within something like 24 hours.

PN796

THE SENIOR DEPUTY PRESIDENT: Very well. Mr Dargavel, what is the union's position?

PN797

MR DARGAVEL: Well, very different to that of Mr Bunting. It appears that the only thing that Mr Bunting and I have in common at this juncture is that neither of us were at the meeting. But, upon my instructions, the meeting reiterated that there is no ban on overtime, and indeed, I am instructed, that overtime was worked last week by some persons and discussions resumed between the parties. And there was discussions between Mr Spindler and the delegates and Mr Kilpatrick and Mr McMorrow. And those discussions advanced some issues. The document which was knocked back by the mass meeting which was referred to as - now it wasn't one of the Bs, but it was - I am just trying to recall but - it was the document they were purporting had an in-principle agreement subject to a meeting, but it was the document that was knocked back by the meeting - B1, we are talking about - bananas in pyjamas, after all.

PN798

THE SENIOR DEPUTY PRESIDENT: That was the first document not the subsequent document?

PN799

MR DARGAVEL: Yes.

PN800

THE SENIOR DEPUTY PRESIDENT: Yes.

PN801

MR DARGAVEL: That document has been changed as a consequence of the discussions and the discussions are continuing. Now, the applicant is seeking to do two things to undermine the negotiating position of the AMWU. One, is to establish the Commission does have a jurisdictional basis upon which to proceed to arbitration. If the Commission was to determine that point in the applicant's favour today it would clearly undermine any capacity for the parties to resolve it by discussion because it would have clearly a recourse to defer to established and decided upon by the Commission.

PN802

At this stage there would need to be some uncertainty in the applicant's minds about whether or not it can get the Commission to resolve all its issues. And consequently it has been made motivated to improve its position, although, as I indicated, those discussions are not finalised. Now, the applicant's representative has come along today seeking, not only to gazump the resumption of discussions by having the Commission determine the jurisdictional application but also to accelerate the determination of the matter on the pretext that there is some action which we deny. The meeting reiterated this position that there is no ban and discussions resumed and are taking place.

PN803

And further to that, your Honour, there is three meeting dates scheduled between the parties.

PN804

MR SPINDLER: No, it is not.

PN805

MR DARGAVEL: Sorry - no, not yet. It is being discussed, is it, those three dates.

PN806

MR SPINDLER: No, we haven't got any other dates confirmed yet. It is just what we agreed on, 9 of the 14 we actually agreed in that last meeting.

PN807

MR DARGAVEL: Okay. So, there has been some progress between the parties in discussions and that is clearly without prejudice from the AMWUs point of view about whether or not we actually need to be there in the first place. But, without prejudice to our position in relation to the Commission's capacity to arbitrate or otherwise, those discussions have been progressed in the matter and some matters have been moving forward to a conclusion that were previously held out by the parties respectively to be not able to be resolved. So, in my submission, it is inappropriate for counsel to be pressing - in the circumstances where the parties are busily sorting out their issues, to press him application gazump that process and consequently - - -

PN808

THE SENIOR DEPUTY PRESIDENT: Counsel is presumably acting on instructions of his client.

PN809

MR DARGAVEL: I am not suggesting that he is on a flight of fancy. That he is doing his own thing at all. No, if that is the way it is perceived then - I am not suggesting that at all. It is inappropriate for the applicant, not counsel, it is inappropriate for the applicant to be busily sorting out the issues and simultaneously asserting a position that we know need to categorically resolve things by arbitration and determine the issue of jurisdiction, which has only one outcome your Honour, and that is to undermine the negotiating position of the respondent in this matter. The statement your Honour made in previous proceedings was that - I think it was about the only point we agreed upon in the 127 matter.

PN810

Was that these matters are best, if possible, resolved at the local level and given that there has been progress at the local level, and we don;'t think it is appropriate we proceed on the jurisdictional point today. If your Honour pleases.

PN811

THE SENIOR DEPUTY PRESIDENT: What do you say is the status of the discussions - is there some 16 items, I think, for discussion between the parties, some which have been agreed in principle subject to the conclusion of an agreement on all matters. What do you say the present status is in relation to those matters?

PN812

MR DARGAVEL: That has changed to nine of the 14, your Honour.

PN813

THE SENIOR DEPUTY PRESIDENT: Sorry?

PN814

MR DARGAVEL: That has changed to nine of the 14.

PN815

THE SENIOR DEPUTY PRESIDENT: Of the 14, is it?

PN816

MR DARGAVEL: There are 14 issues, some of them have been combined and what were previously six is now nine. Is that right?

PN817

MR SPINDLER: No.

PN818

MR DARGAVEL: Perhaps, it is more efficient if he reports on what he was involved in.

PN819

MR SPINDLER: Of the 16 - a couple of those issues have been amalgamated to make 14 issues as we read it out. And of those nine of the 14 have been agreed in principle. I understand it hasn't been to a mass meeting as yet for final okay. And one of the 14 was yet to be discussed because we ran out of time on Friday so that left four of the 14, as yet, unresolved.

PN820

THE SENIOR DEPUTY PRESIDENT: Yes, and discussions are continuing in relation - - -

PN821

MR SPINDLER: Well, that is what we would hope and we have also got the ability to involve more senior officers of the union as necessary for that.

PN822

THE SENIOR DEPUTY PRESIDENT: Is there any program of meetings. I think - - -

PN823

MR SPINDLER: Well, we were hoping to schedule that from today's discussion, your Honour.

PN824

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Spindler. Yes, Mr Bunting?

PN825

MR BUNTING: The difficulty, your Honour, is that industrial action persists. There was a meeting on Friday morning, as I indicated, and at that stage the union was saying, as they have said on other occasions, as they say to your Honour now, that there is no industrial action. But, notwithstanding what they say, their conduct is different and overtime was unable to be worked on Friday evening or over the long weekend. Now, the company is more than happy to sit down and negotiate these issues but it has said to the union, and it said to the union on Friday morning, that it will not be negotiating them while the industrial action persists.

PN826

So, it took the union at its word on Friday morning that following - and in the light of the fact that your Honour made an order on the Thursday, and was prepared to sit down and talk, but as it is now clear that the union is not being straight forward. That the union is being deceitful in the position it takes on this matter; the company is not prepared to sit down and negotiate with them. We think the matter has to come on as quickly as possible in the Commission. If the union is prepared to have a resumption of normal arrangements whereby normal overtime is worked then the company is more than pleased, it is keen, to have the matter resolved in the way that the union describes. We have got - been close to the mark in the past and if - - -

PN827

THE SENIOR DEPUTY PRESIDENT: Yes.

PN828

MR BUNTING: - - - Mr Spindler or other officers - senior officers of the union are involved, that is fine, that is great. But it has to be in an environment of normal work.

PN829

THE SENIOR DEPUTY PRESIDENT: Yes, very well. Perhaps I might adjourn into conference at this stage.

NO FURTHER PROCEEDINGS RECORDED [10.19am]