C2001/1222, Transcript of Proceedings [2001] AIRCTrans 1790 (3 August 2001)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT DRAKE

C2001/1222

AIRSERVICES AUSTRALIA

and

COMMUNICATIONS, ELECTRICAL, ELECTRONIC,
ENERGY, INFORMATION, POSTAL, PLUMBING
AND ALLIED SERVICES UNION OF AUSTRALIA

Notification pursuant to Section 99 of the Act
of a dispute re Sydney Airport staff cuts

SYDNEY

11.19 AM, TUESDAY, 17 JULY 2001

Continued from 28.6.01

Hearing continuing

PN127

THE SENIOR DEPUTY PRESIDENT: Good morning. Could I have appearances, please.

PN128

MR D. SWEET: I appear for the CEPU in this matter, with me is Mr John Thyrd, CEPU delegate and also an Airservices employee.

PN129

MR A. WATERS: I appear on behalf of the CPSU, appearing with me is Mr A. Slough, a workplace delegate at Airservices Australia for the CPSU.

PN130

MR B. FREW: I appear for Airservices Australia, assisted by Mr D. Gardner, from Cutler, Hughes and Harris and A. Wheatly, our Maintenance Services Manager at Sydney Airport.

PN131

THE SENIOR DEPUTY PRESIDENT: Yes?

PN132

MR SWEET: Your Honour, I'll probably just make a few preliminary comments before I hand over Mr Waters who has indicated jurisdiction of issues which probably should be dealt with prior to proceeding. It would be our view that with a measure of goodwill today we should be able to resolve at least one part of this dispute. There are a range of issues that have arisen out of proposals to change rostering, including staff cuts, workloads, etcetera. From the CEPUs perspective, I guess we've tried to isolate and settle at least the rostering part of that dispute and quite unsuccessfully to date. What has been offered to this employer is a one day arbitration to settle this dispute in time frames very quickly provided for by the Commission, as well as deadlines for documentation, etcetera, which were also very tight, in our view.

PN133

However, that being the case, that opportunity has been provided to this employer. These employees have shown a willingness to compromise and that willingness is shown by their actions and their submissions. Perhaps before I continue on that track, it would be appropriate to hand the batten, if you like, on to Mr Waters who has put both the parties on notice that he has jurisdictional issues to raise.

PN134

THE SENIOR DEPUTY PRESIDENT: You're an intervener, are you not, Mr Waters?

PN135

MR WATERS: My understanding was that our intervention had already been agreed by the parties.

PN136

THE SENIOR DEPUTY PRESIDENT: Yes, but you are an intervener?

PN137

MR WATERS: Yes.

PN138

THE SENIOR DEPUTY PRESIDENT: Yes. What's your objection to the matter proceeding?

PN139

MR WATERS: Your Honour, we're the principle union representing technical officers in Airservices Australia and rostering arrangements in Airservices Australia over the past 15 years have always been achieved by agreement. We see, in terms of the Act, that the Commissioner's role of arbitration is a role of last resort and we believe that there are substantive processes in matters that are afoot which - - -

PN140

THE SENIOR DEPUTY PRESIDENT: You say you're the principle union representing technical officers?

PN141

MR WATERS: Yes.

PN142

THE SENIOR DEPUTY PRESIDENT: And you say conciliation hasn't been exhausted?

PN143

MR WATERS: We believe in the current environment, where an agreement from the employer is out to commence a vote with employees in Airservices, the directly affected employees, and that vote commences on Friday, that there are means by which agreement can be reached on these matters. Your Honour, the terms of the Airservices proposed 170LK agreement for ISS, which I would hand up.

PN144

THE SENIOR DEPUTY PRESIDENT: Agreement for whom?

PN145

MR WATERS: Between Airservices and its employees, covering the infrastructure support services, which includes all those employees affected by the matters before the Commission today.

PN146

THE SENIOR DEPUTY PRESIDENT: I hope you can actually find the rates of pay in this one?

PN147

MR WATERS: There are some rates of pay, they don't cover the whole period of the agreement. The agreement, as it's proposed, is a comprehensive agreement. Section 3.3 displaces the Airservices Australia award and, except where specifically provided in the agreement, the dispute resolution procedures of the award aren't specifically provided for in the agreement. At clause 10.24 of the agreement, it goes to shift arrangements and seeks to explicitly stop 24 hour shifts. Shifts on a 24 hour roster commencing before 6.30 am in the morning. In clause 21 of the agreement, the agreement deals with rationalising locations and at 21E, the agreement deals with creating greater flexibility in the working arrangements. In terms of the dispute settlement procedure proposed at clause 24 of the agreement, there are also significant changes, such that Airservices instructions will continue while any dispute was in place.

PN148

We would submit, your Honour, that certainly from Airservices point of view, they should feel that these matters would be settled on the basis that their agreement was endorsed by staff. The matters before the Commission go to specific matters that are at issue between the negotiating parties. There have been discussions regarding principles of rostering, consultation arrangements, changed management processes between the negotiating parties. Over the course of the last six months there was specific discussions at Sydney Airport at which the issue of rosters was raised. Mr Sweet, for the CEPU, has raised, in a letter to Airservices of 25 June, in item 3 of that letter, that rostering has been at issue between the parties during the current negotiations. I can hand up a copy of the letter, I'm sorry I only have the one copy. The final sentence of item - - -

PN149

THE SENIOR DEPUTY PRESIDENT: Mr Waters, just let me read the letter first; have a seat. Yes, Mr Waters?

PN150

MR WATERS: Your Honour, it's our view in relation to this dispute that the matters are wider than simple changes to shift rosters. The dispute as originally identified went to a range of issues related to the restructure of Sydney Airport. The CPSU advised Air Services that a dispute existed between ourselves and Air Services over the Sydney Airport restructure on 25 June and that led to meetings with Air Services at which Air Services introduced new elements that we had been previously unaware of into the Sydney Airport restructure which included issues of resources at sites such as West Maitland and Llandilo. Once again those are issues that which are addressed by Air Services proposed 170LK certified agreement.

PN151

THE SENIOR DEPUTY PRESIDENT: Mr Waters, I'm not really sure what your submission is. Do you say that all of the matters in dispute have somehow been potentially resolved by the terms of the proposed agreement and that the vote on the terms of the proposed agreement will resolve those matters; is that what you're saying to me?

PN152

MR WATERS: In part, yes.

PN153

THE SENIOR DEPUTY PRESIDENT: What's the other part?

PN154

MR WATERS: The other part is that there's a valid bargaining period that's been notified by the United Fire Fighters Union at which all of the parties represented at the bar table are negotiating parties and it's case number BP 2001/3040.

PN155

THE SENIOR DEPUTY PRESIDENT: You are members of the United Fire Fighters?

PN156

MR WATERS: We're listed as a negotiating party in that bargaining period the same as the CEPU are listed as a negotiating party and the same as Air Services are listed as a negotiating party.

PN157

THE SENIOR DEPUTY PRESIDENT: Yes?

PN158

MR WATERS: Quite clearly, in our view, the matters before the Commission for arbitration are issues that have been in contention between the negotiating parties during the negotiations of a replacement certified agreement for Air Services.

PN159

THE SENIOR DEPUTY PRESIDENT: Mr Waters, on 5 July there was a 127 application made by the employer in relation to industrial action that might have been undertaken had they imposed this roster and on the basis that the matter would be heard urgently, it was already listed urgently, I didn't make those orders. If the matter wasn't dealt with now and the employer decided to, without agreement, impose the roster what would your members attitude be?

PN160

MR WATERS: Our members attitude would be that they would be being severely disadvantaged by that action and that it shouldn't happen until the dispute is resolved which we would see as occurring through settlement and agreement.

PN161

THE SENIOR DEPUTY PRESIDENT: I don't think you have agreement from the employer to withhold implementation of the roster until such agreement is reached by negotiation. As I understand it Mr Frew on behalf of those he represents wishes to impose the roster without any further negotiation on the basis that in his view negotiation has been unsuccessful, at least it was unsuccessful before Commissioner Wilks. So where would that leave you?

PN162

MR WATERS: It's our view that agreement will be reached on these matters through the agreement making process.

PN163

THE SENIOR DEPUTY PRESIDENT: Do you have any agreement from the employer to not impose the roster while these negotiations are taking place?

PN164

MR WATERS: No.

PN165

THE SENIOR DEPUTY PRESIDENT: So in the absence of that agreement how do you intend to proceed? Just keep negotiating and you think you have good chances of resolving it; is that what you're saying?

PN166

MR WATERS: Yes, your Honour.

PN167

THE SENIOR DEPUTY PRESIDENT: All right. Were you at the 127 application, the CPSU?

PN168

MR WATERS: The CPSU was there, yes.

PN169

THE SENIOR DEPUTY PRESIDENT: In the presence of Mr Rich?

PN170

MR WATERS: Mr Rich.

PN171

THE SENIOR DEPUTY PRESIDENT: I don't recall any views expressed about the likelihood of imminent resolution of this matter on that occasion.

PN172

MR WATERS: Your Honour, it's the employer who has chosen to put out the agreement which they believe would resolve this. I'm sure they wouldn't have done that if they didn't believe there was an imminent resolution in that agreement.

PN173

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Sweet, do you have a view about the likelihood of resolving this matter by agreement?

PN174

MR SWEET: There's certainly some validity in what Mr Waters puts and can I just say in fairness to Mr Waters who wasn't at that 127 hearing I don't think either ourselves or the CPSU actually put a position of any substance so it might been and I can't presuppose what the CPSU - - -

PN175

THE SENIOR DEPUTY PRESIDENT: I don't recall any submissions being put about those matters?

PN176

MR SWEET: I think the matter was dealt with on other bases rather than that one so I won't go into it. I suppose, yes, in an ideal world there is an agreement that is before this group of employees. It would seem to be that if this agreement did get up it would seem to perhaps nullify any arbitrated result of the Commission which would be - - -

PN177

THE SENIOR DEPUTY PRESIDENT: It would not please me, Mr Sweet, to spend all hearing this matter in my current condition if events on Friday were to set the result aside.

PN178

MR SWEET: Absolutely, your Honour.

PN179

THE SENIOR DEPUTY PRESIDENT: I'd be tempted to cough all over you.

PN180

MR SWEET: I guess that is what Mr Waters is flagging, the prospect of that. Now, again, I can't make an assessment of the prospect or otherwise of that happening but I suppose Mr Waters is alluding to there's a chance that that could happen. I could quibble with Mr Waters on a couple of things he has said but I suppose most relevantly is whether he is the pre eminent union representing technical staff but I shan't.

PN181

THE SENIOR DEPUTY PRESIDENT: I thought the last time I heard he had two members.

PN182

MR SWEET: In Sydney. He might even be down to one now.

PN183

MR WATERS: I think it's four members in one particular area in Sydney.

PN184

MR SWEET: I don't think it's particularly relevant for this matter so I can see what Mr Waters is saying and I guess ultimately it's a judgment that has to be made by the Commission. For our part we're ready and willing to have this matter arbitrated today.

PN185

THE SENIOR DEPUTY PRESIDENT: Mr Frew, are the matters contained in this document, Air Services Australia Certified Agreement 2001 matters that contain a resolution of the issues in dispute over the rostering, would approval of that agreement resolve the issues in dispute between yourselves and the CEPU and CPSU?

PN186

MR FREW: I would not have necessarily thought so without having the opportunity of studying the particular proposition that Mr Waters has put forward, as I understand it, he indicates there are disputes settling procedures in there which perhaps in some way have some mirroring effect on current arrangements or whatever one could argue that they perhaps are less so than the current situation.

PN187

THE SENIOR DEPUTY PRESIDENT: Have you had a conversation with Mr Waters about this?

PN188

MR FREW: No.

PN189

THE SENIOR DEPUTY PRESIDENT: I think that that might be useful, Mr Frew. I will wait here. I don't want to waste my time, the Commission's time is precious, I have in fact a decision that affects all of you sitting on my desk waiting for editing, it would be nice if I got that done instead. So I have other things to do but I've allocated this date and I can give the matter my full attention all day but I don't want to be wasting my time to hear a matter that will be resolved if the agreement is approved.

PN190

Neither do I want to vacate the date, find that you are not able to agree and that you want to impose the roster on Monday. So I will take a short break and you can call me and have a conversation about this matter. My associate will give you my chambers direct line. Thank you.

OFF THE RECORD

RESUMES [1.17pm]

PN191

THE SENIOR DEPUTY PRESIDENT: It seems to me that if this agreement, the Infrastructure Support Services Certified Agreement 2001, is to go to a vote then it would be an awkward matter for the Commission to arbitrate prior to the resolution of that vote. It may be that if the agreement is supported and a decision is made to implement the roster on the basis of that support for the agreement that the roster would not be opposed. If the implementation of the roster is imposed the matters that would need to be determined by the Commission would be somewhat different than those that are before the Commission today when the question of implementation of the agreement is a matter that arises out of the old agreement.

PN192

They are the issues that concern me and the matter that I have to give consideration to is whether I will continue to hear the matter today or give it a date for resolution after the period of the vote. The period of the vote is two weeks as I understand it from 20 August which would mean that the outcome of the vote ought to be known by the evening of Friday the 3rd or at least no later than Monday 6 August.

PN193

There are two matters that I want to discuss in conference with the unions and then, subject to that, I'll hear from all parties as to whether I should stand this matter over for hearing on 13 August. I'll go into conference. I'd like to see Mr Waters and Mr Sweet together initially at least and all parties should vacate the hearing room but not leave the premises, thank you. We'll go off the record.

OFF THE RECORD

RESUMES [1.27pm]

PN194

THE SENIOR DEPUTY PRESIDENT: Mr Frew, for the reasons I've outlined I'm inclined to stand this matter over until the 13th. Are there any matters you'd like to put to me in opposition to that?

PN195

MR FREW: You are inclined to put the matter over to the 13th?

PN196

THE SENIOR DEPUTY PRESIDENT: I am but I'd like to hear from you as to whether there are any matters you want to put to me in opposition to that.

PN197

MR FREW: Yes, your Honour, we are deeply concerned about the delay in implementation and Air Services management is of the view that it shouldn't countenance further delay in implementation. It would countenance, however, an agreement between the parties to implement the rosters and defer hearing of the matter to 13 August for recommendations at that time, however, management is concerned about the time which it has taken to reach this point and, therefore, doesn't wish to delay implementation any further.

PN198

THE SENIOR DEPUTY PRESIDENT: Have you asked the other parties as to whether there would be any consent to implementation prior to the 13th?

PN199

MR FREW: No. There has been just a side discussion here as to what our response is likely to be and I pass the comment that if implementation was agreeable we would agree to having the matter once again convened on the 13th but it's not what I'd call an in-depth discussion.

PN200

THE SENIOR DEPUTY PRESIDENT: Do you have any instructions to consent to implementation, Mr Waters or Mr Sweet?

PN201

MR WATERS: You might go first.

PN202

MR SWEET: I think perhaps what we could do is some of the issues as well. I mean it is a matter of fact that there will be a document that goes out for ballot to the affected employees on this Friday. It's our understanding that there will be a two week period under which employees are able to vote. It might be that, at least if the ballot is successful from management's perspective, that might change the goalposts of this matter. So to that extent we'd definitely concur with the views of the Commission.

PN203

In terms of implementing a roster now our view is that that is not acceptable to our members to implement it now. Apart from prejudicing our members position it should also be noted that in terms of delay I don't know that Air Services comes here necessarily with clean hands. On arrival at the Commission I was given, and it's date-stamped 17 July, their lengthy submissions. I understand it was faxed last night and I don't have a copy of it but our fax says it came in about 9 o'clock last night when they had ample time to provide this material. So on any test I don't think Air Services necessarily wanted to go through with this arbitration today so in terms of delay I guess our view would be, one, it would prejudice our members and, two, Air Services have shown, at least in regard to this arbitration, a willingness to delay the arbitration. Thank you.

PN204

THE SENIOR DEPUTY PRESIDENT: Late submissions would not have delayed the arbitration, Mr Sweet. Mr Waters?

PN205

MR WATERS: Your Honour, with regard to CPSU members working in the radar section I'm authorised to indicate that we have no objection to implementation of the rosters for the radar section. However, with regard to the radio section we remain concerned about a number of issues, the impact on our members if the new rosters were implemented in the radio section, therefore, I'm not empowered to agree to implementation of rosters in the radio section. Beyond that I would concur with the general background comments made by Mr Sweet.

PN206

THE SENIOR DEPUTY PRESIDENT: This matter is stood over to 13 August. If it's any comfort to you, Mr Frew, and those instructing you, you should convey my view to your management that short of a tornado hitting Sydney this matter will proceed on 13 August and I'll endeavour to hand down my decision in transcript at the end of the day.

PN207

MR WATERS: Your Honour, I just wanted to raise one matter in relation to section 104 of the Act with regard to material relating to what may or may not have been said in conciliation. It's our concern that the submissions of both the CEPU and Air Services deal with matters that were raised and discussed in conciliation and we wanted to put on the record the CPSU doesn't agree with those matters pursuant to section 104(5) that were discussed in conciliation being raised in the arbitral process.

PN208

THE SENIOR DEPUTY PRESIDENT: The conciliation before whom? Commissioner Wilks?

PN209

MR WATERS: Yes, and the process associated with that conciliation.

PN210

THE SENIOR DEPUTY PRESIDENT: It would be unusual for matters that took place in the conciliation to be raised at the hearing before me. Is there some intention on any of the parties to raise matters that were discussed in conciliation?

PN211

MR SWEET: I haven't, to be honest, had an opportunity to read the respondent's outline of submissions so I can't comment on whether they've raised any matters. For our part this is probably one of those housekeeping matters that might be best left until 13 August rather than - - -

PN212

THE SENIOR DEPUTY PRESIDENT: If there is some matter that requires resolution prior to that then I'll list it for mention but I have the week before that a matter listed for 5 days at 10 o'clock so you'll have to be early. Is there, Mr Frew, any matter that you want to draw my attention to now? I haven't read the submissions.

PN213

MR FREW: Other than within our submissions mentioning a date a conciliation conference took place there is no reference that I could understand within those submissions relating to matters discussed in conciliation.

PN214

THE SENIOR DEPUTY PRESIDENT: In that case the Commission is adjourned.

ADJOURNED UNTIL MONDAY, 13 AUGUST 2001 [1.35pm]