C3558/200, Transcript of Proceedings [2001] AIRCTrans 1829 (7 August 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 8482

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER SMITH

C No 35582 of 2000
C2001/2975
C2001/1824

THE COMMUNITY AND PUBLIC SECTOR UNION

and

AAPT CDMA PROPRIETARY LIMITED AND OTHERS

Notification pursuant to section 99 of the Act
concerning a failure to accept within a specified
period a letter of demand and log of claims
relating to the conditions of employment

THE COMMUNITY AND PUBLIC SECTOR UNION and ANOTHER

and

VODAFONE PTY LTD and OTHERS

Notifications pursuant to section 99 of the Act
of disputes re wages and working conditions

MELBOURNE

10.10 AM, THURSDAY, 19 JULY 2001

Continued from 8.5.01

PN1022

THE COMMISSIONER: I have listed these matters today as a consequence of submissions made before me in an application by the CEPU for the finding of a dispute and the submissions went to the question of joinder with the matter which I reserved upon dealing with the CPSU. I have also listed a matter today in relation to Vodafone and I have some correspondence in relation to that. In the matter involving the CEPU, certain propositions were put that would affect - that may affect the outcome of that matter, but it was considered appropriate by me that I re-list the CPSU matter to here, whether or not any agreements or understandings have been reached. Mr Jones?

PN1023

MR JONES: Thank you, Commissioner. In relation to the matter of the joinder of the CEPU and CPSU matter, if I could just address you on that one first. Perhaps at the appropriate time, address you on the issue of the Vodafone notification as well. There have been some discussions by telephone between the CPSU and representatives for the AIG group of employers. I am advised that no conclusion has been reached as a result of those discussions, and perhaps Mr Parry can throw some light on whether any conclusive position has been reached by his clients here this morning. I am also advised that though that group of employers represented by Baker and Mackenzie do not object to the joinder of these matters, and what relevantly - - -

PN1024

THE COMMISSIONER: Well, the Baker Mackenzie Vodafone proceed on a premise which is not true. Proceeds on the premise that a dispute finding has been made in the CEPU matter, and that hasn't happened.

PN1025

MR JONES: Right. I don't have a copy of the correspondence which the Commissioner refers to. It may perhaps - - -

PN1026

THE COMMISSIONER: Well it says that any dispute finding between the CPSU and Vodafone will be on the same terms as agreed, and that is a general finding and no determination, and the same terms as agreed in the CEPU matter.

PN1027

MR JONES: My understanding is - my understanding of perhaps what the solicitors for those employers were saying, was that a finding of dispute were one to be made in the first instance, should be in general terms.

PN1028

THE COMMISSIONER: Yes.

PN1029

MR JONES: And that is certainly consistent with the discussions that we have had with solicitors for that group of companies.

PN1030

THE COMMISSIONER: Yes. I am not sure that I got - depending upon the outcome of today, I am not sure whether I got agreement on the CEPU matter. I am not sure what your submissions will be.

PN1031

MR JONES: In relation to a general finding of dispute in the CEPU matter, I can address you on that now, Commissioner. It is the CPSU's view - the CPSU's view is that notwithstanding the fact that when the CEPU first made an application for joinder we did oppose it, the principle ground of position was that it would lead to a delay in the determination of the CPSU's matter. We acknowledge that there is some similar issues of both law and fact in the CPSU and the CEPU's matters. The parties respondent are in most instances, the same parties and the claims on my advice are similar in each instance.

PN1032

It is our view that now, in view of the conduct of the case, most notably by the employers and their response to the CEPU claim, it is our belief that a joinder of the matter would not lead to any undue delay in the determination of it and in relation to the CEPU matter, we acknowledge that there is at least one employee or potential employee of the companies served by the CEPU with a letter of demand and a log of claims and as with the - the same can be said as regards to the CPSU matter and on the basis of numerous Full Bench authorities, that is enough for the Commission to make a general finding of dispute pursuant to section 101 of the Act. So we would make the same submission in intervening in the CEPU's matter as we would in our submissions in our own matter.

PN1033

THE COMMISSIONER: I see. Thanks. Mr Parry?

PN1034

MR PARRY: If the Commission pleases, we made submissions on, I think, 7 May regarding the joinder issue. They were particularly comprehensive. I don't propose adding anything to them today. We opposed joinder then, and we continue to oppose joinder. Our position is that the proceedings in CPSU 35582 which is the CPSU log should proceed to be heard and determined on the argument and material before the Commission, if the Commission pleases.

PN1035

THE COMMISSIONER: Thanks, Mr Parry. Any other submissions?

PN1036

MR HARVEY: Commissioner, if I could say on behalf of the Australian Services Union, thank you, Commissioner. We haven't sought to intervene in the CEPU matter. We are interveners, obviously, in the CPSU matter. At this stage - well, we don't oppose joinder of the two matters. There is a question of C No. 29075 of 2001 which is a Vodafone matter which I wasn't aware of before I arrived here this morning. When that matter has been called on, we would seek leave to intervene in that matter as I believe we have some interest, but I am not exactly sure of the status of that matter at the present time, if the Commission pleases.

PN1037

THE COMMISSIONER: It has been called on.

PN1038

MR HARVEY: In that case, I would formally seek leave to intervene in that matter.

PN1039

THE COMMISSIONER: Thanks, Mr Harvey.

PN1040

MR HARVEY: Thank you, Commissioner. Yes, Mr Benfell?

PN1041

MR BENFELL: If I may advise of a change of appearance first of all, Commissioner. My name is MR L. BENFELL and I am appearing on behalf of the CEPU in the place of Mr Nolan. With me is MR I. BRYANT. We support the applications for joinder, in fact we make an application for joinder as we have done consistently. We would also seek leave to intervene in the Vodafone matter which I understand is C No. 2975 of 2001. We seek that the Commission make a dispute finding today in relation to the CEPU matter and - - -

PN1042

THE COMMISSIONER: So you would be content if I joined your matter and then determined your matter in advance of determining the CPSU matter?

PN1043

MR BENFELL: Well we would prefer that the Commission determine both matters - - -

PN1044

THE COMMISSIONER: Yes.

PN1045

MR BENFELL: - - - as per our agreement reached with the CPSU.

PN1046

THE COMMISSIONER: I won't be determining the CPSU matter today.

PN1047

MR BENFELL: Well, we would still press for a dispute finding with the CEPU, but we understand that may not be available to the Commission. I am not sure what the parties are saying about the CEPU matter. Mr - the AIG representative, I don't think indicated clearly what they say about a dispute finding with the CEPU.

PN1048

THE COMMISSIONER: Well, I think submissions were put on the last occasion by those in relation to the CEPU. Those employers.

PN1049

MR BENFELL: Yes. I was wondering whether their position had changed in the interim. They haven't said anything so I presume that - - -

PN1050

THE COMMISSIONER: Well, Mr Parry said he opposes joinder.

PN1051

MR BENFELL: Yes, but he didn't say anything about whether or not they oppose or will lead evidence or whatever in relation to the CEPU matter, so I presume their previous position is their current position.

PN1052

THE COMMISSIONER: Yes, Mr Jones?

PN1053

MR JONES: Commissioner, if I might, it is difficult in a sense for us to make the appropriate submissions on each of these matters separately, because as the Commission would be aware as a result of discussions which occurred between the CEPU, CPSU and some employers, the subject of these proceedings, a number of arrangements were reached, each of which was contingent upon the other. If the Commission is not minded to find a dispute in relation to those objecting employers in the CPSU matter, then the CPSU would certainly seek to make - renew its application to you here today in respect of the non-objecting employers in the CPSU matter.

PN1054

And it needs to be pointed out that there are non-objecting - there are objectors in both matters and non-objectors in both matters and it is certainly available to the Commission, indeed the public interest, in our submission, would dictate the early finding of a dispute in relation to those non-objecting employers. At the appropriate point, Commissioner, I would like to hand up a list of the non-objecting employers in the CPSU matter.

PN1055

THE COMMISSIONER: Yes, I will accept that now if you have got it.

PN1056

MR JONES: This list is contained, Commissioner, in a letter from myself to you of 9 March 2000. It must be pointed out that this list of employers are employers who are on the record as of the very first listing of this matter in September last year, I believe it was, indicated that they wished to take - that they didn't object and/or they did not wish to take any active role in the proceedings.

EXHIBIT #J9 LIST OF NON-OBJECTING EMPLOYERS

PN1057

MR JONES: In relation to at least one of those employers, the One.Tel group of companies, the dispute finding has been made. An interim has proceeded to be made on the basis of that dispute finding. At least one other of those employers we are currently - - -

PN1058

THE COMMISSIONER: In case you hadn't heard, an appeal was lodged yesterday.

PN1059

MR JONES: In relation to at least one other - in relation to at least one other of those companies, the CPSU are currently in negotiations for a 170LJ agreement for that company. That company is Primus Telecommunications. It is clear on the basis of all the material before the Commission that a dispute can be found in relation to those - that group of employers. Secondly, in relation to the Vodafone dispute, we are advised that that company raises no objections to the finding of the dispute in general terms with the CEPU on the basis of a log of claims that was served on that company on 14 March.

PN1060

Now the Commission would appreciate that if you are not minded to find a dispute in relation to the group of companies that the AIG represents, a small group of the overall group of employers who are a subject of this dispute, then there is certainly an indication from the other employers subject to the CPSU matter, that they don't object to a dispute finding. Indeed they are not represented here today because they see no problem with a dispute finding being made. It needs to be pointed out, Commissioner, that some of those companies who are listed at J8, like many companies within the industry at the moment, are going through a process of rationalisation and downsizing.

PN1061

If I could point to just one company on that - or two companies on that list, MCI Worldcom and PowerTel, have reduced their workforces within the last month, not by such dramatic proportions as the One.Tel group of companies, but those employees were terminated without the benefit of a safety net redundancy award. It also needs to be pointed out that the majority of those companies have large operations here in Victoria where there is not even the benefit of a state jurisdiction to protect them in relation to those matters. We - it is our submission, that the public interest dictates an urgent finding of the dispute so that the CPSU on behalf of its members can move to have a safety net award made if for no other matter, then for the protection of employment in the case of redundancy and termination circumstances.

PN1062

THE COMMISSIONER: Now the One.Tel companies, a dispute - has a dispute been found with any of them?

PN1063

MR JONES: With One.Tel Limited, Commissioner.

PN1064

THE COMMISSIONER: One.Tel Limited, which is an omission, so the other ones, are they currently operating?

PN1065

MR JONES: They are currently operating, yes, Commissioner.

PN1066

THE COMMISSIONER: They are not in receivership?

PN1067

MR JONES: They are in administration, Commissioner.

PN1068

THE COMMISSIONER: All right, thank you. Any other submissions anybody would like to make?

PN1069

MS N. THOMAS: Commissioner, I should advise you of a change of appearance for Sita and interests associated with Equant. My name is MS N. THOMAS. I think Carl Blake has previously appeared. We have instructions not to object to the joinder.

PN1070

THE COMMISSIONER: Thanks, Ms Thomas. Thank you. I will consider what has been put. The matter is adjourned.

ADJOURNED INDEFINITELY [10.28am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #J9 LIST OF NON-OBJECTING EMPLOYERS PN1057