C2001/3450, Transcript of Proceedings [2001] AIRCTrans 1484 (11 July 2001)

AUSCRIPT PTY LTD
ABN 76 082 664 220

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TRANSCRIPT OF PROCEEDINGS


O/N 8024

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER BLAIR

C2001/3450

TOTALCARE INDUSTRIES LTD

and

AUSTRALIAN MUNICIPAL WORKERS UNION
AND OTHERS

Notification pursuant to section 99 of the Act
of a dispute re industrial action being taken
against Totalcare

MELBOURNE

2.39 PM, WEDNESDAY, 20 JUNE 2001

THIS HEARING WAS CONDUCTED BY VIDEO CONFERENCE
IN MELBOURNE

PN1

MR B. COOK: I am from Clayton Utz representing Totalcare Industries Limited, and appearing with me is MR G. SHAW, Human Resources Manager, and MR P. COTTERILL.

PN2

MR C. HODGSON: I appear on behalf of the CPSU, and representing.

PN3

MR P. SEAL: I appear on behalf of the Transport Workers Union.

PN4

MS S. SCHOONWATER: I appear on behalf of the CPSU together with MR G. PARRY, and we would be objecting to the appearance of Mr Cook. I note he didn't seek leave to intervene.

PN5

THE COMMISSIONER: Yes. Mr Cook.

PN6

MR COOK: Commissioner, I hadn't sought leave to intervene at this stage because it was only the calling of appearances, but I do seek leave to appear in relation to this matter as it involves issues which have been before the Commission to which I have appeared on behalf of Totalcare and it is to provide continuation of assistance to the Commission in relation to those issues. And the employer has now understanding or knowledge of an application or notification of dispute to which it could successfully argue before the Commission, given the experience that the trade unions hold in relation to these matters.

PN7

THE COMMISSIONER: Thank you. Ms Schoonwater.

PN8

MS SCHOONWATER: Commissioner, we say this is a basic section 99 dispute and it is unusual in such matters that counsel would be seeking leave to intervene, particularly at such an early stage in matters. Totalcare has a staff of approximately 600 personnel. Totalcare also engage an industrial relations consultant. They have a human resources manager and a large human resources management team. We see no reason; there is no legal issue before the Commission today that would warrant the appearance of counsel. If it please the Commission.

PN9

THE COMMISSIONER: Well, before the Commission deals with the issue of leave, Mr Cook, the matter has been brought on because of a section 99 notification which you have already indicated is part of an ongoing issue that is currently before the Commission anyway. But it appears that there is some form of industrial action; is that right?

PN10

MR COOK: That is right, Commissioner. Commissioner, you will recall in relation to proceedings of 2001/3249 at which the Commissioner was present on 6 June 2001. At the conclusion of the conference to which the parties had engaged, the Commissioner asked the question whether any industrial action was in place, to which the response from the CFMEU and the AMWU was that, no, there wasn't. As of this morning, industrial action in relation to the very issues which were being sought to be addressed by submissions which the Commissioner had directed the unions comply with in relation to formulating the outstanding issues that had arisen through the negotiations of the certified agreement, the unions had complied with the Commissioner's direction or recommendation that the timetable that was put in place be adhered to, and the unions responded to that.

PN11

Totalcare responded to the issues which were raised by the unions yesterday. Our deadline for that was tomorrow. And there is a conference to be held - there was a meeting of the parties to be conducted on Monday in relation to the issues which were identified in the section 99 notification brought on by the unions on 6 June. As a consequence of the industrial action occurring this morning and also what appears to be further industrial action tomorrow, we have sought to identify or at least bring it to the Commission that we are in dispute in relation to the issues which have arisen because there has been no compliance with the current certified agreement and also the undertakings which were given at the previous conference.

PN12

The issues giving ground to the industrial action today are squarely based on the staff which will be made redundant as a result of the loss of the housing contract which was the prime issue in consideration on 6 June. We say that it is unproductive to engage in industrial action when the parties squarely agreed to identify the issues and to answer them in accordance with the time line, and to meet on Monday with the availability which the Commission has already notified us of the Commission's ability to participate on Tuesday, 26 June.

PN13

THE COMMISSIONER: Who has the industrial action?

PN14

MR COOK: Which union, Commissioner?

PN15

THE COMMISSIONER: Yes. Yes, which union?

PN16

MR COOK: From what we understand, we have listed a number of unions but it appears that it is mainly the CEPU who only served us with a notice of initiation of a bargaining period yesterday, they were outside the requirements of the Act to actually legally engage in industrial action: secondly, the AMWU and the CFMEU.

PN17

THE COMMISSIONER: Right.

PN18

MR COOK: And we are not sure about the CPSU at this stage.

PN19

THE COMMISSIONER: Right.

PN20

MR COOK: As a consequence, it just seems to be totally non-productive to reaching settlement on the outstanding issues as was put forward on 6 June to which the parties were working towards under the arrangement for reporting back to the Commission. The industrial action, as I say, is in breach of the Workplace Relations Act in that the CEPU who - the plumbers have gone out on strike - has not notified the - I am sorry, has not waited until the time periods have expired before engaging in industrial action.

PN21

And, secondly, the notices required or given to us - given to Totalcare in relation to intended industrial action, in particular the CFMEU notice which was received on 7 May 2001, simply states that industrial action may be taken against Totalcare Industry, Industrial Services, for the purpose of securing certified agreements. There is no identification of what that industrial action is in contravention of the Federal Court's decision in the Davis Distribution case. And so Totalcare is completely unable to take any sort of attempts to settle the issues, to negotiate the issues prior to the industrial action commencing because it has not been forewarned as required by the Act.

PN22

THE COMMISSIONER: Yes. Are you aware whether or not the parties, that is the unions that have the industrial action in place, wish to negotiate with you?

PN23

MR COOK: Well, they haven't contacted us in relation to that, apart from we are waiting to hear back from our detailed responses which the Commission has received, next Monday. For all intents and purposes, that is when all these issues would have been aired if there was still outstanding issues. But the CPSU and the CEPU and the CFMEU in a media release, which appeared to have been released yesterday, indicated that it is all based on the issues that were identified on 6 June. Now, if negotiations take place on those issues, it should proceed in accordance with what was already agreed upon at the meeting of 6 June and the issues be resolved on the Monday and, if no resolution or any outstanding issue, then before the Commissioner on the Tuesday.

PN24

THE WITNESS: Right. Thank you. Mr Hodgson, does your union or the union you represent, including the AMWU, have industrial action in place?

PN25

MR HODGSON: Yes, we do, Commissioner.

PN26

THE COMMISSIONER: Why?

PN27

MR HODGSON: Well, it came out of a members' meeting this morning. It was in response to the fact that Totalcare hadn't been continuing to negotiate with regards to the agreement and, in fact, had sent out the agreement for a further vote without our knowledge through Clayton Utz.

PN28

THE COMMISSIONER: Right. So have you complied with the Act in terms of the notification?

PN29

MR HODGSON: Certainly the CPSU has and, as far as I am aware, the AMWU has as well, Commissioner.

PN30

THE COMMISSIONER: Right. So if you have concerns about the actions of Totalcare in pursuing a second vote in terms of the certified agreement, why did you take industrial action? Why didn't you ask the Commission to convene a conference?

PN31

MR HODGSON: Well, it was really the members' decision this morning, Commissioner. It was a meeting that we arranged first thing this morning as a result of the outcomes of yesterday. Certainly Totalcare hadn't informed us about it and when it was put to members this morning, it was their decision to put in place the action.

PN32

THE COMMISSIONER: Right. Mr Seal.

PN33

MR SEAL: If the Commission pleases, I have no members engaged in the action that took place this morning. My notification to the company is in order but it is the intent of my delegates at least to participate at the meeting scheduled for tomorrow morning on the basis that they received letters from Totalcare by Clayton Utz in relation to the enterprise agreement that they already voted against. They were severely concerned about that and they advised me that they wished to participate in a meeting to deal with that issue. It is my understanding that that is, in fact, what transpired this morning as well.

PN34

THE COMMISSIONER: Right, thank you. Ms Schoonwater.

PN35

MS SCHOONWATER: Thank you, Commissioner. Similarly, Commissioner, our members are engaged in industrial action and we have properly notified the company of that to secure an enterprise agreement. I have been on leave for the past few weeks so I am not aware of all the issues, Commissioner, and, in fact, I was late today, too. However, as I understand it, there is two processes here. There is a series of alleged breaches of the EBA which I understand have been dealt with by yourself, either as a section 170 notification; then there is the securing of the enterprise agreement. And essentially there are five main outstanding issues in relation to that agreement.

PN36

The unions did have a meeting with the company to try and progress those matters which were - the last time the EBA went to the members, or the employees of the company it was overwhelmingly rejected. Then the members get home last night and they find that Clayton Utz are conducting a secret ballot on behalf of the company unbeknownst to any union official. So in reality if Totalcare want to claim that the unions haven't been negotiating or coming to the table, that is not true. Totalcare are engaging in practices which certainly don't fulfil the spirit of trying to bargain in good faith in any way, shape or form. Our members are on strike to try and secure those five outstanding issues in the agreement.

PN37

THE COMMISSIONER: Why didn't the CFMEU notify the Commission or ask the Commission to bring a matter on in terms of trying to resolve the issue?

PN38

MS SCHOONWATER: It was the members' decision to take the industrial action this morning to secure that agreement, and we do have a bargaining notice in place.

PN39

THE COMMISSIONER: What do you seek, Mr Cook?

PN40

MR COOK: Commissioner, we seek an order that industrial action cease and that no further industrial action occur until the parties have followed the agreed outcomes in relation to identifying the outstanding issues in relation to issues between them, and that no industrial action occur until that meeting occurs on Monday, the 25th, and until it is reported back to the Commissioner at a date to be arranged, whether that be the 26th or a subsequent date, if the parties are still in negotiation.

PN41

THE COMMISSIONER: Right.

PN42

MR COOK: Commissioner, can I say in relation to - there are certainly the two processes in the EBA but, quite clearly, a media release made available on 19 June shows that union members from Totalcare Building Maintenance Section will stop work tomorrow morning at 7.30 am. The decision had been clearly taken place yesterday and it was based on the vote on no action following an unacceptable redundancy offer from management. It has got nothing to do with EBA negotiations. It has got to do with the very things that were listed on 6 June.

PN43

THE COMMISSIONER: What do the unions say about that?

PN44

MR SEAL: Well, if the Commission pleases, the first question I think that we still need to resolve is the question in relation to Mr Cook's appearance.

PN45

THE COMMISSIONER: That is for the Commission to decide. You just deal with the issue, thanks.

PN46

MR SEAL: Commissioner, the question of redundancy is a question that is part of the negotiations in relation to the overall agreement. As I have already stated, the TWU has no members party to the industrial action this morning but it is planned that we will hold a - we will participate in a planned meeting for tomorrow morning to resolve the issues. For Totalcare and all of their representatives to say that these issues have not been raised with them is, to be very polite to Totalcare - well, I can't say whether it would be polite to them because it is total crap.

PN47

We put those issues and the outstanding issues to this company on numerous occasions. We had several meetings to specifically deal with this matter, and on every single one of those meetings the company have come back to us and said, no, no, no, emphatically no, Commissioner. So we are at a stalemate in relation to those particular issues.

PN48

The only way that we can see forward is what we have as our legal basis under the Act, that is to take protected industrial action in an attempt to move Totalcare to another view. Commissioner, I suggest that the submission by Mr Cook is fraudulent along those lines. From the TWUs perspective, that is what we are trying to achieve. We see no value in going back to the company to put to them again what we put to them on numerous occasions. They are the matters that are outstanding, if the Commission pleases.

PN49

THE COMMISSIONER: Mr Cook says that the issue apparently made mention of is the issue of the redundancy; that is the redundancy that the Commission is currently dealing with as part of C number 3249 of 2001.

PN50

MR SEAL: Commissioner, in relation to redundancy, Redundancy is a matter of negotiation in relation to the enterprise agreement. We have put a claim for an ..... redundancy to the company, they have rejected that. That is part of the issues subject to our claim in the enterprise agreement and from our perspective, the TWUs perspective, it is a legitimate claim for us to pursue industrial action on the basis of achieving an enhanced redundancy package for all our members, potentially redundant in some future time subject to disagreement.

PN51

MS SCHOONWATER: Commissioner, there is just something in what Mr Seal said. There is two processes here and at the end of the day some of the - there is going to be some clouding across the middle as the redundancy issue. There is redundancies occurring within the company at the same time that we are trying to secure enhanced redundancy packages through a legally binding instrument. There is consultation type clauses that we are seeking to have in the enterprise agreement. At the same time we are alleging breaches of the consultation clauses of the enterprise bargaining agreement. I am not quite sure whether Mr Cook has applied to have the bargaining periods terminated because I can't see any other ground upon which he seeks an order from the Commission.

PN52

THE COMMISSIONER: Well, the Commission can give orders under its general powers. It can't give section 127 orders whilst the bargaining period is in place.

PN53

MS SCHOONWATER: Yes, and there are - - -

PN54

THE COMMISSIONER: And it can give directions as well which it is about to give. And those directions are very simply these. Firstly:

PN55

(1) that the unions are to cease any industrial action;

PN56

(2) that Totalcare is to cease pursuing the issue of a second ballot in terms of a proposed enterprise agreement.

PN57

The parties, in between now and Tuesday the 26th when the Commission is due to be in Canberra, will continue to negotiate the issue of the enterprise agreement and also the issues identified in C3249 of 2001. The Commission will have a report back on the issues identified in C number 3249 of 2001 and it will also hear a report back on Tuesday the 26th on C number 3450 of 2001. If the industrial action does not cease, Mr Cook, you will notify the Commission and the Commission will list the matter urgently tomorrow to see what other action the Commission can take to ensure that industrial action does cease. But you understand very clearly that the proposed ballot that you intend - or Totalcare intend to operate - shall not proceed.

ADJOURNED UNTIL TUESDAY, 26 JUNE 2001 [2.58pm]