C3760/500, Transcript of Proceedings [2001] AIRCTrans 181 (9 March 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 6061

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER SIMMONDS

C NO 37605 OF 2000

AUSTRALIAN MUNICIPAL, ADMINISTRATIVE,
CLERICAL AND SERVICES UNION

AND

M.R.W. AUSTRALIA PTY LTD

NOTIFICATION PURSUANT TO SECTION 99
OF THE ACT OF A DISPUTE RE WAGES AND
WORKING CONDITIONS

MELBOURNE

9.03 AM, MONDAY, 19 FEBRUARY 2001

CONTINUED FROM 16.10.00

PN44

MR B. O'CONNOR: I appear for the Australian Services Union, with me MR R. SAUNDERS, from the NEU Private Sector Branch of the Union and we are replacing Keith Harvey, if the Commission pleases.

PN45

MR P. EBERHARD: I appear from VECCI, with me MR B. DERRICK from MRW Australia.

PN46

THE COMMISSIONER: Yes, thank you. Yes, Mr O'Connor?

PN47

MR O'CONNOR: Commissioner, since the matter was last before you and the dispute found between the ASU and MRW discussions have taken place between the respective parties in relation to settling the dispute. There were in fact some indications that such an effort would be made by the union and the employer and in fact from our standpoint we understood that the employer was to consider our position and indeed put something to us in relation to an agreement that could be registered in this Commission.

PN48

However, that meeting was held last year, I do not have the exact date, but I do not think there is any disagreement that the meeting was conducted between VECCI, MRW and the ASU. Everyone at the Bar table except myself were present. However subsequent to that meeting and commitments made to await a draft agreement the company, I can only assume on the advice of VECCI, sought to introduce into the work places a draft document, in effect a section 170LK agreement, to be considered by the work force. Now there is nothing particularly unlawful or prohibitive in taking that action of course. However, we feel it was a fundamental breach of faith between ourselves and the company. There was no contact made directly to Rod Saunders or any other official of the ASU who, of course, assumed the commitments were made to him in good faith.

PN49

That draft document I can only assume has been presented or provided to all employees operating in the services. So I suppose we thought it was only fitting the matter come back for some consideration here. Commissioner, our view is that all the activities, all the recreational activities of MRW where they perform work for local governments in Victoria should be regulated by this Commission. We believe that historically these areas have been regulated by the Victorian Local Authorities Interim Award and their predecessing awards.

PN50

We say, therefore, that it is that award that is in fact the correct and appropriate award which would regulate the activities of those employees performing recreational services for municipalities in Victoria. Though we do not have an exact - that is to say, we are not exactly sure how far that reaches, but we say that wherever services hav been performed by MRW and its employees, and those services are being performed for Victorian councils, then the Victorian Local Authorities Interim Award 1991 or its successor should in fact apply and it is for that reason we have sought to have the matter on today and to rope MRW to the extent that I have mentioned into this award.

PN51

We have not had discussions since, I am sorry to say, we have not had discussions since those earlier commitments were made to try and reach agreement regarding the employment conditions of these employees of which I speak. Today may have been an opportunity and I know you would far prefer, Commissioner, that we have exhausted those opportunities. However, we felt that given that the draft agreement that was made and put to the work force some weeks ago, and in fact put to the work force, at least mailed to the work force. The agreement is dated 6 February 2001. We have a copy which was sent to one employee which I will not mention the name of the person, but we are assuming that was sent to all employees on 6 February.

PN52

As you can see it was their intention clearly to have, therefore, a vote some time 14 days after that, so in other words from tomorrow onwards or Wednesday perhaps onwards, they would be looking to try and have a vote and for those reasons we could no longer trust the employer to meet with us and therefore, rather than just ring them or contact them directly to resume discussions we thought it fitting to be here. But nonetheless our intention would have always been that this award apply. It just seems that we may not get consent from the employer. Therefore we are here this morning to try and determine that matter.

PN53

The discussions I have briefly had this morning with the employees' representative would indicate that they are not agreeable to having Victorian Local Authorities Interim Award bind the employer insofar as the activities of that employer performs for Victorian local governments. So we say, you know, I suppose we submit that we wish the Commissioner to determine the matter. I just wish to foreshadow for the record that we do not consider binding this employer in this area would preclude any agreement or agreements to be made subsequent to the determination of this Commission in this matter. We may indeed look to certain specific agreements if that was required.

PN54

THE COMMISSIONER: Yes. Mr O'Connor, is there any award binding the employer that you are aware of?

PN55

MR O'CONNOR: As far as I know there is no award that binds the employer in relation to these areas. In fact they seem to be award free. There is no instrument. The fact is that the company itself would have awards that bind it, but they would not have the scope and we would argue - and we are happy to, I suppose, here argue it, we are happy to argue that any awards that might bind the company do not bind them to the extent of these employees.

PN56

THE COMMISSIONER: So before any agreement, assuming that people vote in favour of it, was certified, are you saying there would need to be an XF application or - - -

PN57

MR O'CONNOR: There may well be, but I suppose - I mean, we are certainly interested to hear what the employer has to say. I mean, we formally have not been able to hear from the employer since our last meeting and, you know, we are at a loss to see what happened from the time that we sat down with them to discuss matters.

PN58

THE COMMISSIONER: You see, the difficulty of what you are proposing, and as a general proposition the difficulty is that the Victorian Local Authorities Interim Award would not meet the tests of 89A as it currently stands.

PN59

MR O'CONNOR: That is correct.

PN60

THE COMMISSIONER: I mean, currently reserved on the award simplification and I appreciate that you have sought - or its successor in your correspondence.

PN61

MR O'CONNOR: Yes.

PN62

THE COMMISSIONER: But I regret to say that the successor is some time away.

PN63

MR O'CONNOR: Yes. Well, I suppose in normal circumstances we would have awaited to prevent any uncertainty around that matter.

PN64

THE COMMISSIONER: No, but really, what I am saying is that okay, that then means the Victorian Local Government Authorities Interim Award, it is not open to me to make an award - a roping in award in the terms of the Victorian Local Government Interim Award because it does not meet the 89A tests.

PN65

MR O'CONNOR: Yes. Well, we would - - -

PN66

THE COMMISSIONER: So that course of action is not open - - -

PN67

MR O'CONNOR: It is not open to us in - well, we are caught between the process of the Commission in relation to this matter. I mean, the number of options left open to us were to either submit an award that was amended so as to be within the requirements of 89A which in some ways perhaps prejudiced the order of - well, the new award which is to be - which is pending. Now, I understand that the award is soon to be made.

PN68

THE COMMISSIONER: Yes.

PN69

MR O'CONNOR: What we would not have wanted is an industry roping in award that may be somewhat different from the determination of the award before the Commission. So we are caught there. I suppose what we are asking is that that - and I suppose what we are happy to do is tender an award, an amended award which would remove all non-allowable matters from what is currently the Victorian Local Authorities Interim Award. However - - -

PN70

THE COMMISSIONER: And make an interim award binding this employer?

PN71

MR O'CONNOR: Correct. I have to say that the form of that award, except for certain provisions, given the scope of this company it would not be too difficult. We could remove any - what were contested provisions of the Victorian Local Authorities Interim Award because they are not relevant to the operations of this employer.

PN72

THE COMMISSIONER: It would not just be the contested provisions. I would imagine there would be a whole lot of provisions that would be relevant, bearing in mind the other constraints.

PN73

MR O'CONNOR: That is true, that is correct, although we tend not to want to disaggregate the award because we are trying to keep the same matter but what we would be doing is any matter that was subject to arbitration before the Commission in relation to the Victorian Local Authorities Award, we would probably - well, we would not enter into that sort of problem because we would remove the provisions that were contested and we would alter the Victorian Local Authorities Interim Award and instead the order we would seek would be in fact, if you like, if I can put it crudely, the consented draft that was put before this Commission in relation to the new award that there seemed to be, let us hope, a successor of the Victorian Local Authorities Interim Award and without the contested areas that were put forward before this Commission for argument, because they are not relevant to this employer.

PN74

THE COMMISSIONER: The contested areas may not be, but so too may a whole range of agreed matters and moreover the draft that is before the Commission is not a final draft because it was put in - - -

PN75

MR O'CONNOR: I accept that and in your ruling we understand you could determine what - I mean, it is not the best way to operate, but we could - you can determine what is within the requirements of 89A or not. I mean, without referring to the C number - - -

PN76

THE COMMISSIONER: I am really bringing the relevance to this employer.

PN77

MR O'CONNOR: Yes.

PN78

THE COMMISSIONER: I mean, if it was to be a single employer award it would only be those matters - I mean, from deciding it - but the proposition you are putting would need to be limited even further than 89A. It would need to be limited to those matters in the interim award that had relevance to this employer.

PN79

MR O'CONNOR: Well, that is what we are looking to do. I mean, we have not - this has come on us rather suddenly because of the revelations that occurred about 10 days ago and then we established that the behaviour of the employer was in fact to depart from discussions with us and we are caught in a quandry and I understand that, Commissioner, but I do not think we cannot get a - - -

PN80

THE COMMISSIONER: Well, I do not know about that because I mean, I do not have the transcript, but my recollection of the matter was that the parties agreed to have discussions.

PN81

MR O'CONNOR: That is right.

PN82

THE COMMISSIONER: And what you are really saying is that in the course of those discussions one side decided to follow another course of action.

PN83

MR O'CONNOR: That is correct and we thought - - -

PN84

THE COMMISSIONER: It raises issues about the bona fides of the other side.

PN85

MR O'CONNOR: Well, it certainly does and there is a number of options we can take. I mean, one of the other options would be of course is we could be looking for a bargaining period and start negotiating another instrument. But we feel that this is certainly one method by which we can bring to the attention of the employee's obligations, given its refusal to continue to meet and discuss and resolve our dispute which is currently before us. Can I say, we do think with the advice and counsel of the Commission that a draft award akin to the Victorian Local Authorities Interim Award could be put that would get around any problems in relation to section 89A, but substantively we are here to make sure that our members employed by this company performing services in local government are regulated by the Commission and what we are after of course is the minimum rates of the industry which is this award to which I refer and we would not want the fact that we have found ourselves between the process of this award and the making of a new award to allow a party to escape its obligations or our members to be afforded their entitlements.

PN86

THE COMMISSIONER: Yes, thank you, Mr O'Connor. Mr Eberhard?

PN87

MR EBERHARD: Commissioner, I think what I say may well circumvent what Mr O'Connor has just said and yourself in regards to the section 89A applications and with regards to the Local Authorities Award. I acknowledge that I had met with Mr Saunders with Mr Derrick from the company prior to Christmas. I subsequently allocated the file to another consultant within VECCI. Unfortunately I did not monitor that and the undertakings that we gave to the ASU prior to Christmas of the meeting have not been followed through and I acknowledge that. We are in the process whereby the company has distributed an agreement, a section 170LK to the staff. I think the intent from the company was to have a vote next Tuesday. What I would propose to the Commission and to the ASU is the following: that firstly that that vote not take place next Tuesday.

PN88

THE COMMISSIONER: When you say next Tuesday, you mean the 20th or the 27th?

PN89

MR EBERHARD: 27th.

PN90

THE COMMISSIONER: Yes.

PN91

MR EBERHARD: That that vote not take place on the 27th and that the undertakings that we gave to the ASU with respect to discussions and negotiations in regards to an agreement be reconfirmed to both the ASU and to yourself, Commissioner, and to the Commission and that the parties enter into discussions with respect to the making of an agreement. We would submit that there is the basis of an agreement through the document that is currently with the staff which is the proposed LK agreement and it certainly reflects the company's view with respect to where things could well be at. But in respect to the final outcome of any agreement between MRW and the ASU, well, that would be the subject of negotiations over the forthcoming weeks.

PN92

With respect to the application to rope the company in to the Local Authorities Award we would certainly oppose that, but we do not see the necessity to advance those arguments at the moment should the submissions that I have previously made with respect to an agreement be acceptable to the ASU.

PN93

THE COMMISSIONER: Yes, thanks, Mr Eberhard. It certainly makes me feel a bit easier about the whole thing.

PN94

MR O'CONNOR: Yes, I mean, I suppose we are happy to hear that the company wishes to revert to its original position and of course we are willing to negotiate an agreement with the company to cover the areas any time from this point onward. So we are happy to do that. That is an undertaking we can accept - this is the second undertaking made on behalf of the employer before this Commission so I suppose we take it with the deal of scepticism it deserves, but if I - - -

PN95

THE COMMISSIONER: I think that is unfair.

PN96

MR O'CONNOR: Well, I mean to suggest that there was commitments made to me - - -

PN97

THE COMMISSIONER: I think Mr - yes.

PN98

MR O'CONNOR: Clearly, can I say this: this company does not seem to be one that has a great deal of industrial savvy in terms of the intricacies of the Act. I would have to say, and I am not - I do not think I will be contradicted - that whilst it may not be the person at the Bar table who is directly responsible, VECCI clearly advised them to undertake the option of a 170LK and to undertake it. I do not think the employer at the table wrote the 170LK document up himself. I am sure he sought advice of VECCI. Having said that - and I just make that point because there is some anger, because the work force contacted us.

PN99

I would have to say, you know, we have a significant membership, Commissioner, on this site. They contacted us saying: what's going on? We thought you were discussing, next minute we're mailed an LK agreement to decide on - and, you know, they are very angry in that regard. But I do welcome the words that have been said. Clearly there has been an about face by the employer because, for no other reason, we found out what was going on and can I say, whilst I suppose I am expressing some sentiment of anger on behalf of those members, we are of course willing to sit down and negotiate the agreement.

PN100

We still reserve our rights to rope this employer in to any award and I take the Commission's view that it would certainly be a little easier for us all if, once a successor is made, I think that would be a preferred option. But we believe that we can sit down and have discussions. I would also just make clear for the record that we do not accept that the contents of the draft agreement, certainly satisfies our standards for the industry. We understand the basis of the agreement and there were certain circumstances at the time which allowed for that instrument to be made at another place which seems to be the basis for the draft.

PN101

So we say that that is a starting point from the employer. If it is okay with the Commission we would ask the following: that we would, within a reasonable period, respond to the - if we can take the 170LK draft as the employer's ambit position, Commissioner, we would respond to the contents of that within, say, two weeks of today putting what we - you know, on a without prejudice basis and we accept the draft as it now - a without prejudice draft of the employer but we would like to say we would put a response within a fortnight and then can I say that no less than - either within that fortnight, if we were able to provide it to them or no less than a week after the fortnight, the ASU and the company meet to try and resolve any differences that we might have.

PN102

So that I suppose we would be looking to settle the matter in no more than three weeks. Now, I know that very much depends upon how close the parties are, but it would be a nice start and if we get that commitment today we know that we are willing to - those meetings would occur, and time allowed for us to respond to the draft. I suppose we could adjourn this morning's matter sine die.

PN103

THE COMMISSIONER: I think there needs to be, given my responsibilities in the matter, some discussion about the settlement of the dispute. Are you saying that the making of an agreement would settle or at least go so far to settling that part of the dispute as to remove any urgency?

PN104

MR O'CONNOR: Yes, there is.

PN105

THE COMMISSIONER: I mean, there seems to be an issue about the award, that is the point I make.

PN106

MR O'CONNOR: There is and in fact, of course, look, we reserve our rights. We believe this company should indeed be roped into the award. We are not entirely confident that we would be able to reach agreement in terms of establishing a settlement. There is no reason why, however, the parties should not attempt to do that. As to whether it be a settlement to the award, a settlement to the dispute, Commissioner, if there is no settlement I suppose - sorry, if there is no agreement made between the parties we would clearly look to have this company roped into the award.

PN107

THE COMMISSIONER: But see, if you reach an agreement, if there is no award binding the company and I have not pressed Mr Eberhard on that, but if there is no award binding the company there is going to have to be an XF determination anyhow.

PN108

MR O'CONNOR: That is right and we would be arguing that the Victorian Local Authorities Interim Award - - -

PN109

THE COMMISSIONER: Well, hopefully you will have agreement on that.

PN110

MR O'CONNOR: Well, that is right, but we do not at the moment. Clearly we do not have - - -

PN111

THE COMMISSIONER: No, I understand - - -

PN112

MR O'CONNOR: Yes.

PN113

THE COMMISSIONER: - - - where you are at the moment. What I am looking at is where you have got to get to.

PN114

MR O'CONNOR: Okay. Our position would be if we were to come to you here with an agreement under 170LJ or under division 3, the fact is we would be arguing that the award that would apply to any agreement made would be the Victorian Local Authorities Interim Award and therefore the no disadvantage test would have to apply to that and not apply to any other award and at the moment, given the comments made, we do not expect that to be necessarily agreed upon. But if it is going to move things forward to sit down and work out where we agree in terms of the content of whatever instrument we use, then we will do so. But we will not be looking to have anything less than the conditions of the award apply. They may - - -

PN115

THE COMMISSIONER: Well, I understand what you are saying, I am just making the point. Anyhow, Mr Eberhard, what do you say about that time scale?

PN116

MR EBERHARD: The timetable, Commissioner?

PN117

THE COMMISSIONER: Yes?

PN118

MR EBERHARD: No, that is acceptable to the company.

PN119

THE COMMISSIONER: All right. It sounds to me, it might be appropriate that I actually issue some directions to put the matter beyond any doubt. I might just go off the record to discuss that with the parties to make sure they meet what you have said.

OFF THE RECORD

PN120

THE COMMISSIONER: In the exercise of the powers in respect of conciliation I propose to make a direction to the parties in the following terms:

PN121

(1) that by 5 March 2001 the ASU is to respond in writing to the company in respect of the position that the company has put to the employees;

PN122

(2) that the union and the company are to meet to attempt to resolve any differences by 12 March 2001 and the parties are to report back to the Commission on the outcome of their discussions at 10 am on Monday, 19 March.

PN123

Depending on the nature of the report back we will determine what happens then. Clearly if there remain differences the Commission will attempt to conciliate the matter. I certainly will not be proposing to move into arbitration, but we will certainly report back in formal proceedings and, depending on the outcome, should there be a requirement for further conciliation the proceedings will adjourn into conference. On that basis I propose to adjourn these proceedings and we will order - just to put the matter beyond any argument, we will order transcript both for this and the previous proceedings, which does not seem to have been ordered. The proceedings will be adjourned on that basis, thank you.

ADJOURNED UNTIL MONDAY, 19 MARCH 2001 [9.31am]