C2001/1951, Transcript of Proceedings [2001] AIRCTrans 1766 (1 August 2001)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 4, 179 Queen St MELBOURNE Vic 3000
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TRANSCRIPT OF PROCEEDINGS


O/N 8405
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT LACY

C2001/1951
C2001/3859
BP2001/2554
BP2001/2555

APPLICATIONS FOR ORDERS TO STOP
OR PREVENT INDUSTRIAL ACTION

Applications under section 127(2) of the Act
by Alinta Gas Limited and Another for orders
to stop or prevent industrial action

APPLICATIONS FOR TERMINATION
OF BARGAINING PERIODS

Applications under section 170MW of the Act
by Alinta Gas Limited and Another for orders
to terminate bargaining periods

MELBOURNE

5.10 PM, FRIDAY, 13 JULY 2001

Continued from 12.7.2001

PN40

THE SENIOR DEPUTY PRESIDENT: Yes. No change in appearances apart from Mr Yung is representing the CEPU and ASU. Is that correct?

PN41

MR YUNG: That is correct, your Honour. Yes, sir.

PN42

THE SENIOR DEPUTY PRESIDENT: I have listed this matter at the request of Mr Yung in relation to the detail provided in relation to Alinta's claims. So what is the situation, Mr Yung?

PN43

MR YUNG: Your Honour, do you have a copy of Alinta's letter dated 12 July that contains their log or their purported log?

PN44

THE SENIOR DEPUTY PRESIDENT: I have a copy of the letter addressed to you of 12 July 2001. I have a copy of a letter addressed to Mr Cain of 12 July 2001. I also have a separate document that appears to be the same thing in a different format, again dated 12 July, addressed to each of you and Mr Cain.

PN45

MR YUNG: Yes, that is - yes.

PN46

MR BORLASE: Your Honour, just to put that into perspective for you. One is from Alinta Gas Limited, the other is from Alinta Gas Networks. It reflects, I think, what was put before everybody yesterday of the desire and intent for separate agreements for those respective organisations and so accordingly, correspondence was sent from each of those organisations.

PN47

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Borlase. I hadn't noted that, in fact, and I am grateful for your pointing that out to me. I have only just received the documents. I haven't really had an opportunity to consider them in any detail in any event. Yes, Mr Yung?

PN48

MR YUNG: Thank you, sir. Your Honour, just firstly, some background. Prior - sorry, after yesterday's conference and after I received the current documents that you have just mentioned, I contacted Mr Smith and just raised with him the omission within this document of any proposed pay increase. Throughout all of it there is, for example, no mention of a pay increase or wages increase or indeed any percentage attached to that. And I raised that with him and said look, this just appears to be an oversight. He said that there was a document back at the office. I think I must have caught him in the car at the time.

PN49

He indicated that he would get back to me. Now the reason that I raised that is that there is the meeting as per our agreement today with the stewards and that has taken place. Sir, if I can just go back to the log. My concerns are essentially this. The stewards certainly want to know what the position of the employer is and I think I made that fairly clear yesterday. My concerns were that the company is really here skating on some very thin ice with regards to putting a fairly warm and fuzzy log of claims, if you like, to us. And the omission, for example, of the wages was a particular concern.

PN50

The other issue is on page 2. It is the union notification and also the LOFA allowances which is the third last dot point. Now those issues in and of themselves make no sense. For example, on LOFA they certainly don't understand what their position is on that. Do they wish to delete it? Do they wish to change it? Do they wish to - it is a pointless statement that has been made. Union notifications likewise. Not certain what that means. Now, your Honour, when I received this I then faxed them fairly - at midday today, indicating my concerns and asked them to get back to us.

PN51

My concern, your Honour, is this. That although this is - there is some substantial progress. My major concern relies on the words:

PN52

In relation to the detailed CA, Alinta Gas seeks to address, amongst other things, the following issues -

PN53

and I am just a little bit - well, not a little bit concerned, that this is only their opening gambit and that we are going to find a whole host of other issues that are going to emerge in another couple of weeks. Now I was clearly under the impression yesterday that this was a direction from the Commission. Put your log on the table. Put it clearly on the table about where you are coming from. If Alinta has got other issues that they may wish to raise at a later date, they can certainly forewarn us and say, look, we foresee it, for example, as a two step process. Step one, these issues. Step two, these issues.

PN54

Now I am just concerned, your Honour, that to some extent - although there has been some movement, Alinta is not really then genuine and up front. They are being a little bit genuine and up front, but not totally genuine and up front, and certainly our position was that the no industrial action was fairly highly conditional, and it was conditional on the formal log. Your Honour, having said all of that, and given the current time and what I can only refer to as quite a positive meeting with the stewards this afternoon - I have only just finished with the stewards and it is unfortunate that Mr Smith isn't here. I was talking to Mr Borlase earlier and I suggested the following process with regards to perhaps flushing out or expanding on some of these points and it was the following.

PN55

That the stewards meet at Victoria Park which is the Alinta Network's headquarters. That the stewards meet at 9 o'clock on Monday and of course that is a paid meeting further to the agreement reached yesterday. We meet for between half an hour to an hour to further discuss the issues that were raised today. That after that, Ben Smith be invited to address the stewards and I emphasised the word "address". We are not seeking negotiations. We are merely seeking to put some questions to him to say, for example, on the second dot point here it says:

PN56

A five day week, 12 hour shift.

PN57

I just raise that, your Honour. That has any number of interpretations. Does that, for example, mean a 60 hour week. What is - - -

PN58

THE SENIOR DEPUTY PRESIDENT: So which point was that? Which dot point was that?

PN59

MR YUNG: The second dot point on the first page. Now we just seek to, for example, to ask Mr Smith just to expand on some of the issues that the stewards had raised. We don't see it as a - it is more of a clarification session and we certainly see it as a putting all the parties in fairly good standing for the intense negotiations to commence the following day. I think in all the circumstances and the lateness of the hour, I think that would probably be the best solution if Mr Smith could make himself available on Monday.

PN60

THE SENIOR DEPUTY PRESIDENT: Yes. What do you say, Mr Borlase?

PN61

MR BORLASE: Well, sir, I am at a bit of a loss really, as to why we are here. We actually said yesterday what we would do. That we required a list of the items that the company wanted. I think we made it clear that we had been planning on taking a very different approach of trying to have business challenges laid out and then to try and find joint solutions. What has been asked for is to go back to the traditional you want, we want approach. So in a very short time frame, the company has come up with that type of approach to satisfy what appears to be desired by the unions.

PN62

Now Mr Yung indicated that the commitment to no industrial action had been given on the basis that we do that and I would say from the letter that we have put back, it has more than honoured that aspect. And so if this is in any way an attempt to back away from those commitments that were done or that were given, then we would be strongly - we would be very disappointed with that and it would be our intention to go and pursue the applications that are before you. In terms of the detail that is there, and what has been proposed by Mr Yung, I really don't think that that is a valid approach.

PN63

We have put forward a range of issues with - in much the same sort of concept and level of detail that the union log of claims is expressed in, and there is simple statement in terms of the union claim which simply says redeployment provisions, retraining provisions, union picnic day, transfer agreement. That is the fashion in which their log of claims is fashioned as well. Now we have gone back and responded in a not dissimilar type of fashion. We have gone to the extent of - our line in terms of forced redundancies, what they see in terms of the payment there, a reasonable amount of detail.

PN64

Now I would suggest that the appropriate course is that both parties have an outline of the issues which are being sought, that the first meeting on Tuesday will be the opportunity to start - on the Tuesday or the Wednesday to start fleshing out and to explain in a little bit more detail and the union has just - has got just as much explaining to do in respect to their claims as the company does. So as I said, if this is a pre-cursor by the unions to try and back away from the commitments that were given, then as I said, we would be very, very disappointed with that and we would obviously pursue our applications quite vigorously then.

PN65

Having said that, though - as I said, I think that we have bonded the issues. Now in respect to not putting down what pay increase is being proposed, at the moment as far as I am aware and instructed, that is actually probably quite deliberate because at this point in time of the negotiations, the company doesn't want to get locked up or bogged down and attitudes formed in respect to what wage increase they are prepared to pay until such time as they see what other changes that they need to get negotiated through the agreement process.

PN66

Now that is not a unique approach to negotiations at all and it is not something that they should be forced and directed in any way to say what sort of wage increase that they are prepared to give, because that is going to be entirely contingent upon what sort of agreement they manage to negotiate. Now there are a couple of points that Mr Yung has indicated in terms of the LHFH allowances and - - -

[5.23pm]

PN67

THE SENIOR DEPUTY PRESIDENT: Well, Mr Yung raised first of all a point about the reference to, amongst other things - - -

PN68

MR BORLASE: Yes. Now I will - as I understand it there was a short time frame for the company to come up with this list and I think that they have done quite an admirable job in terms of coming up with this list in that time frame. In terms of the negotiations as we indicated yesterday they would have - they think that they will be in a position to put a draft document on Wednesday. Now they are going to be having to devote a lot of resources to create something of that nature in between now and the next day. That will give a lot more detail.

PN69

Now I don't think that that puts this program back in any way, shape or form. And there is a lot of material that is before the parties at the moment in terms of the CEPU log of claims and all of the points which have been put down in the Alinta gas document which I am pretty certain will probably entertain the parties and I am not going to be involved in those negotiations. But simply just having a look at this list - or those two lists - and from my experience that there is sufficient material there to keep the parties well and truly engaged for Tuesday in terms of those positions.

PN70

THE SENIOR DEPUTY PRESIDENT: What - sorry, Mr Borlase, I didn't mean to cut across you. What is meant by union notification, I don't understand that?

PN71

MR BORLASE: Well, I was going to say that there are those two points, the union notification and the LHFH allowances that I will undertake to try and get some clarification in respect to those two points and get them communicated to Mr Yung prior to his meeting on Monday.

PN72

THE SENIOR DEPUTY PRESIDENT: And the five day week, 12 hour shift, should that be 12 hour shifts should it?

PN73

MR BORLASE: I imagine so, yes.

PN74

THE SENIOR DEPUTY PRESIDENT: And the "amongst other things" how long might it be before Alinta would be in a position to know what other things it might want to incorporate in the claim?

PN75

MR BORLASE: As indicated, sir, I believe that they are working towards being able to have a document that they can table which would be a complete agreement, if you like, to give a base for the negotiations to work from for the Wednesday afternoon meeting.

PN76

THE SENIOR DEPUTY PRESIDENT: Yes. This - sorry, go on.

PN77

MR BORLASE: I was just going to say that that is entailing them putting a lot of resources towards that exercise between now and then which they are committed to doing.

PN78

THE SENIOR DEPUTY PRESIDENT: On the pay increase issue presumably Alinta is not accepting the demands made by the unions?

PN79

MR BORLASE: I think that that is given, sir. The other thing is that what was sought from the unions is a list of claims that the company had not a list of responses to their claims.

PN80

THE SENIOR DEPUTY PRESIDENT: Yes, but I mean on the wage increase surely the company could put an ambit - I don't know it might want to say nothing. It might want to say 3 per cent over three years or whatever but surely - - -

PN81

MR BORLASE: With the greatest respect, your Honour, they don't want to put anything at all and I think for them to go - I suggest that this isn't a process in which to direct either company to - sorry - either party to say exactly or how it should approach the negotiations.

PN82

THE SENIOR DEPUTY PRESIDENT: I don't mean - I don't - - -

PN83

MR BORLASE: And I would just say, sir, that at this stage for them to go and respond in that fashion to say nobody wage increase would obviously be extremely inflammatory. And as I said they do not have, as far as I am instructed, any fixed position in respect of what wage increase may result from these negotiations. I think that their position is very much dependent upon what type of agreement they actually manage to achieve. And I communicated that to Mr Yung this morning in a telephone discussion when he notified me of the - of this conference or this hearing in accordance with your officer's instructions. I am not too sure whether Mr Yung can tell me whether that - his response to that was confidential and I won't say anything - okay - - -

PN84

MR YUNG: I am happy - - -

PN85

MR BORLASE: - - - in respect to that. Mr Yung indicated to me that he understood that position of the company.

PN86

MR YUNG: ..... support it.

PN87

MR BORLASE: Yes. And now that it has been put to you.

PN88

THE SENIOR DEPUTY PRESIDENT: Yes. Well, I don't presume for one minute to say how the - how Alinta gas should conduct its negotiations, that is entirely up to the parties, but it just seemed to me that Alinta gas must understand or have some idea of where it wants to be in terms of its payroll costs over the course of the next three years or whatever and it ought to be able to put something on the table and say well, it is going to be 1 per cent per year or nothing for the first year and so much for the second year.

PN89

But look, as I say, it is a matter for the parties and it might be recalled that on the last occasion that we met I in fact made reference to Mr Yung and Mr Cain about the possibility of the employees not being happy with whatever is put by the companies and that is likely to be the case. But for the purpose of negotiation it ought not be used as a reason for taking industrial action until such time as there has been an opportunity to discuss the positions of the parties.

PN90

MR YUNG: And, your Honour, if I can just reinforce that point I emphasise that at the conclusion of the stewards meeting this afternoon I said look, although there are some things in the position of Alinta that clearly we are unhappy with I emphasised to the stewards don't take this back to your depots and wind the blokes up about it. Tell them that this is their opening position. We very much took on board your Honour's comments and we are - certainly from the officials trying to maintain some discipline amongst our members.

PN91

But clearly - and I think our position was very clear yesterday - was that we want to get down to some serious negotiations and clearly an absence of a pay position in a log of claims or Alinta's reply was seen as a huge gap for us. And obviously - I mean if Alinta had turned round and said look, the pay increase is going to depend upon the costing consequences of what is actually in the agreement and it could range from, you know, from this to this but that is totally dependent on the final outcome, we could have accepted that.

PN92

But we have this huge silence in there which just concerned us that Mr Borlase has now indicated the position of the company - companies and certainly - I mean we have taken those comments on board. Your Honour, the other issue that I raise as well is that in that fax the employer has now gone and raised additional process matters that were not discussed yesterday. And the first one is representation from the workforce. And, your Honour, the reason that I am raising this is that we were here for some time yesterday.

PN93

I thought there had been some fairly substantial progress and agreement on steps for the parties to take. I mean, today - yesterday when I received this fax, there are new issues that have suddenly emerged and each of those issues are to some extent, new. Certainly the second dot point, and I am referring now to the pre-list or the pre-log of claims matters, but the first issue, representation from the workforce. Now we put our position to Alinta some time ago - I think it was about a fortnight ago.

PN94

Our position is that we want each of the stewards there. Now we have four stewards. Now Alinta is now effectively trying to limit us to three. I thought that that was a matter, your Honour, that really should have been raised yesterday. We should have nutted all of these issues out while the parties were here and not get tied up in some of these matters. Certainly the form of communication that is in their third dot point, although I appreciate why Alinta may want to have a common agreed statement at the conclusion of each session, for it to suddenly emerge out of left field yesterday - and this is the first time this has ever come out.

PN95

Certainly you are seen as, from where the officials were sitting and to some extent the stewards, were seen as being unhelpful and provocative and you know, potentially a delaying or a distracting tactic by the employer. Now we certainly accept that the company has the right to address its employees directly. We take no issue with that. That is the company's right. We certainly appreciate that the delegates will be able to communicate at the work group level and I think that has been a fairly consistent position from this employer to allow us to feed back. But certainly the agreed releases troubles us. We may not agree and we are also concerned about some of the timing issues involved as well. But overall, your Honour, our major concern with that is that these matters should have been raised yesterday.

PN96

THE SENIOR DEPUTY PRESIDENT: Ms Vonberg - I have got a note here that Ms Vonberg did make reference to the fact of having a continuity of representation and identification of representation. They weren't her words but that is the report of my note.

PN97

MR YUNG: Your Honour, certainly don't take issue with that, but they are now saying "this is what we think should be the position". Now this is the first time this has ever been raised. We made it very clear to Ms Vonberg about a fortnight ago, who we - we told them. This is who is going to be on our team. Now a fortnight later they are suddenly saying "we actually don't think you should have that" - - -

PN98

MR BORLASE: Your Honour, I note the word in there. All that Alinta Gas is saying is that they strongly recommended. It doesn't say that they are not going to progress with negotiations or anything like that if that doesn't occur. I think that that is effectively saying that is what we think. Here it is. But there is no bar there saying they are not going to progress matters.

PN99

THE SENIOR DEPUTY PRESIDENT: What - Mr Borlase, do you have any instructions about Mr Smith's preparedness or otherwise to address the stewards?

PN100

MR BORLASE: I don't, sir, but I would venture to say that I don't think that it is really appropriate. What I have said, that in respect to that I will give Mr Yung an undertaking that I will try and get some clarification to him in respect to those two points that he raised, the union notification and the LHFH allowances, and then I think that the appropriate forum for the parties to expand on both of their logs of claims is going to be the meeting on Tuesday. The union has got a lot to explain in terms of the detail of what it is that they are seeking in terms of their logs of claims, which is in much the same format.

PN101

As I indicated to you, there is a whole range of bullet points there that simply adopt - you know, journey cover, mandatory apprenticeship trainee ratios, higher duties allowance after four hours, union picnic day transfer agreement. You know, there is a whole range of things in there that I think the appropriate forum is going to be on Tuesday for each party to start to expand out a little bit, what they mean by these things.

PN102

THE SENIOR DEPUTY PRESIDENT: Yes. What about the additional time that Mr Yung has requested for the stewards to meet?

PN103

MR BORLASE: I thought that was agreed yesterday. I don't think the company has a problem with that.

PN104

THE SENIOR DEPUTY PRESIDENT: Well I thought there was an agreement reached on the time off - paid time off.

PN105

MR BORLASE: I don't think there is - yes, there is no disagreement with it.

PN106

MR YUNG: Your Honour, if I may. Mr Borlase has indicated that Tuesday is perhaps the appropriate time for the parties to start expanding, as he called it, on our respective positions. The practical difficulty that the unions have is that we need to - we need to consult within a much broader forum than the company in terms of - Benny Smith, with regards to networks at least, is the General Manager and he at least in that sense, is the decision maker. We have, of course, under our rules and everything else, we have an inverse authority relationship.

PN107

We have to not only confer amongst ourselves, that is, the organisations, but also with our delegates and make certain that if there are differences within our delegates that we can form a common position. Now that was why I was suggesting the Monday for Mr Smith to come to us and expand on these so that we can form that common position, because otherwise what I foresee happening on Tuesday is that we are going to go through this process of it being expanded, and the unions are going to turn around, quite rightly, and say we are going to have to adjourn for a couple of hours. You have put a log on the table, we have now go to go away and consider just our response.

PN108

I was hoping that we could look at Tuesday of really saying this is the respective positions, can we really now start seeing if we can get some movement. I was seeing Monday as an attempt to almost kick start the negotiations on Tuesday. Now we are still committed to the negotiations and I think that that request from Mr Smith to address - and I understand, your Honour, that he has already agreed to it, it is just unfortunate he is not here today, just to try and progress things.

PN109

THE SENIOR DEPUTY PRESIDENT: Yes. Well, Mr Yung, I think it is a matter for Mr Smith himself if he feels the need to address the stewards and is agreeable to doing that, then that would probably be appropriate, but if he has delegated somebody to negotiate on behalf of the company and that person or persons are properly authorised, then it seems to me that - just as in the union you undoubtedly have authority from the union to act on behalf of the union in the negotiations, then so will the authority be delegated down in the company to someone else to negotiate.

PN110

I don't mean that in any disparaging way, I am just saying it is just the way these things go and I am sure you are aware of that. But if Mr Smith has indicated to you that he is prepared to talk to them, perhaps that is something you can discuss with Mr Borlase after have adjourned today and see if something can be agreed about that. And if it is going to alleviate any discontent or expedite the process of negotiation on Tuesday, then perhaps it is not a bad idea, provided of course, that Mr Smith is agreeable.

PN111

As for the matters in the claim itself, I have had a look at them now and it seems to me, as Mr Borlase says, that the form that they are set out in the document is not entirely different to the way in which the claims are often made by unions in these sorts of matters and I haven't seen your claim, unfortunately, but Mr Borlase has referred to some aspect of it and again, that is consistent with my understanding of these sorts of claims in the past. So I appreciate the difficulties that parties may be having at this stage in trying to get this matter underway, given that there has been some time passed since the initial approaches were made about having some negotiations.

PN112

It does seem to me that there has been some positive steps forward and I can only commend the parties on those steps and recommend that they continue in that vane with the best good will possible. Now I will be in Perth on Monday and this matter is being listed at 4 o'clock on Monday in Perth, Perth time, but should the parties wish to have the matter brought on earlier or listed at some earlier time during the course of the day, then I will be available, although I have other matters. I will be available early in the morning.

PN113

MR BORLASE: Thank you, Commissioner.

PN114

MR YUNG: Thank you, Commissioner.

PN115

THE SENIOR DEPUTY PRESIDENT: Nothing further?

PN116

MR YUNG: No, sir.

PN117

THE SENIOR DEPUTY PRESIDENT: Very well. The matter is adjourned.

ADJOURNED INDEFINITELY [5.43pm]