C2001/4595, Transcript of Proceedings [2001] AIRCTrans 2718 (10 October 2001)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER FOGGO

C2001/4595

APPLICATION TO STOP OR PREVENT
INDUSTRIAL ACTION

Application under section 127(2) by Direct
Engineering Services Pty Ltd trading as
Frigrite Air Conditioning for an order to
stop or prevent industrial action by CEPU

ADELAIDE

11.57 AM, MONDAY, 24 SEPTEMBER 2001

PN1

MR SHORT: If the Commission pleases, I seek leave to appear. With me is MR ALEX MARKIEWICZ.

PN2

MR W. DEAKIN: I appear on behalf of the CEPU Electrical Division.

PN3

THE COMMISSIONER: Leave is granted to Mr Short.

PN4

MR SHORT: In this - perhaps, Commissioner, I am not sure how much time you have to deal with this matter.

PN5

THE COMMISSIONER: Let me worry about that, Mr Short. I am here for 2 days. This could go on for a long time.

PN6

MR SHORT: I was thinking - I think I had raised with the Commission the difficulty I had. We will see how we go. In this matter we are before the Commission seeking orders under section 127. The applicant clearly is directly affected by the industrial action and the industrial action is both happening and ongoing and it is common ground that it relates to work regulated by the Metal Engineering and Associated Industries Award 1998. The background, Commissioner, is enterprise agreement negotiations are under way. The union has notified a bargaining period by notice marked by the Commission as 3006 of 2001 and if it assists I will place a copy of that notice before the Commission.

PN7

THE COMMISSIONER: I will put that on the file.

PN8

MR SHORT: By letter of 27 August 2001 the CEPU indicated the basis upon which it would be prepared to agree to a 1 year agreement and it will be relevant to place a copy of that letter before the Commission. That is a letter from Mr Deakin of the CEPU to Mr Purdy of the company.

EXHIBIT #S1 LETTER DATED 27/08/2001

PN9

MR SHORT: The union was putting forward a 1 year agreement on the basis of a $2.5 per hour increase so working on a 38 hour week that would be $95 a week. In addition, receive $55 per week to a redundancy fund, a $10 a day allowance and 38 hour week with RDOs but no reduction of wage rates so a quick calculation would be some $200 per week more for 5 per cent less work.

PN10

THE COMMISSIONER: Well, forgive me for not being wisely excited by such an outrageous claim. It is a log of claims after all, isn't it?

PN11

MR SHORT: I understand that. I will lead you through, Commissioner. We are not seeking to, if you like, to withhold anything from the Commission. As you would expect, there was a response from the company - their response is on 5 and 6 September and I will provide copies of those to the Commission.

EXHIBIT #S2 LETTER DATED 05/09/2001

EXHIBIT #S3 LETTER DATED 06/09/2001

PN12

MR SHORT: Thank you, Commissioner. Consistent with your understanding, the log of claims was rejected and the company put forward on 6 September an alternative classification and pay rate, all part of the normal process. The employees, I should say, come under the C10 classification of the award, the tool allowance, I think the award rate is $528.10. Now, that was followed by a letter from the CEPU dated 10 September - - -

PN13

THE COMMISSIONER: Mr Short, the relevance of the award rate here is only for the purposes of the safety net?

PN14

MR SHORT: Yes.

PN15

THE COMMISSIONER: It has - it sets the floor only in relation to enterprise agreement.

PN16

MR SHORT: That is right.

PN17

THE COMMISSIONER: It would be most unusual to have award rates and enterprise bargaining rates that were the same.

PN18

MR SHORT: Indeed.

PN19

THE COMMISSIONER: Yes.

PN20

MR SHORT: From there came a letter of 10 September 2001 from the CEPU which is attached to the section 127 application, Commissioner, and that letter - - -

PN21

THE COMMISSIONER: I had better mark that.

EXHIBIT #S4 LETTER DATED 10/09/2001

PN22

MR SHORT: That letter advised of a vote that morning that certain bans were in place and at the top of page 2 the bans are identified and those bans, numbered 1 to 5, as I understand it came into place as of the morning of 10 September and ban 6 and 7, relating to overtime and call out, came into force on Friday 14 September and the log of claims was reiterated in relation to 1 to 7 and additional matters put forward. Following that, on 12 September the company was served with a notice authorising industrial action and that also was attached to the application. It is dated 7 September. In the top left-hand corner, and it is indistinct, immediately under the facsimile transmission report, is a stamp: 12 Sep 2001. I am instructed that is the company's receipt stamp as to when the document was delivered to the company. Although dated 7 September 2001 it was served on the company on 12 September 2001.

PN23

THE COMMISSIONER: What is the date stamp - - -

PN24

MR SHORT: In the middle of the document?

PN25

THE COMMISSIONER: Yes.

PN26

MR SHORT: That is from the Commission, received 7 September 2001, Australian Industrial Registry, I think it is - sorry, South Australian Registry. So that is when it was filed at the Commission, presumably filed.

PN27

THE COMMISSIONER: The company didn't - wasn't provided with a copy?

PN28

MR SHORT: That is it. It was served on the company, as I say on my instructions, on 12 September 2001. You will see also in the middle of the document that it advises the action referred to will take place from 14 August 2001 and will finish on 12 October 2001. Now, the notice is dated 7 September. So it advises of action taking place before the date of the notice. It clearly does not give 3 working days notice as required by section 170MO. Nor the action largely already been in place as at 12 September 2001. Could it have complied, even with a different date?

PN29

Commissioner, while I am sure you are familiar with the requirements of section 170MO, can I just briefly take you to it. Section 170MO(2)(b) is the first relevant provision. In order for the industrial taken to be protected action, the CEPU, in this case, must give the employer at least 3 working days written notice of the intention to take the action. Under 170MO(5) that written notification under this section must state the nature of the intended action and the day when it will begin.

PN30

If those requirements are not satisfied that it is our submission that the industrial action taken, whatever it may be, is not protected and therefore section 127 order and application is available. I should say that the company received on Friday afternoon a further notice authorising industrial action and it is proper that the Commission be informed of that. This is a new notice dated 20 September 2001.

PN31

THE COMMISSIONER: Yes, thank you.

EXHIBIT #S5 NOTICE DATED 20/09/2001

PN32

MR SHORT: Now, it is also proper to say that there had been some earlier notices given about industrial action which had either - which had expired or which didn't cover all matters covered by the action which has in fact been taken.

PN33

THE COMMISSIONER: How many earlier notices?

PN34

MR SHORT: Two. Once which covered the period 17 August to 24 August 2001 and was dated 10 August 2001 and a second notice, dated 20 August 2001 which covered the period 27 August to 21 September 2001. So that notice expired on Friday. That notice, Commissioner, covered the first five types of action it didn't extend to call outs and overtime bans. Inquiries by the company this morning have indicated to it that the industrial action is continuing as of today and there has been no suggestion that the action is not continuing. Commissioner, would it assist you at this stage to be given a brief outline of the form of the activities which have been undertaken?

PN35

THE COMMISSIONER: No, not at this stage, thank you.

PN36

MR SHORT: Now, the company has asked, in the first instance, on this application, that the matter be dealt with by way of conciliation. While we recognise this is a system which enables both parties to hit each other about the head until someone gives in, it may be that it would be of assistance to the parties to have the involvement of the Commission to see if we can actually work more productively towards a resolution. If that is not to be, then we will recognise that the employees will keep doing what they are doing and we will keep doing whatever the Act permits us to do.

PN37

THE COMMISSIONER: Yes, thank you. Mr Deakin.

PN38

MR DEAKIN: Yes, Commissioner, I would say that the company's action capriciously here is just doing down to that one letter that they are hanging their hat on, 10 September.

PN39

THE COMMISSIONER: Sorry, which one?

PN40

MR DEAKIN: 10 September which was the letter I sent to them, S2.

PN41

THE COMMISSIONER: I beg your pardon, S2?

PN42

MR DEAKIN: Yes, Commissioner, their S2. I will present to the Commission the letter that I sent across to them.

PN43

THE COMMISSIONER: Just a moment. S2 in these proceedings is a letter from Mr Purdy.

PN44

MR DEAKIN: I have got down the letter I sent to Mr Purdy, I have got that down as S2.

PN45

THE COMMISSIONER: Dated?

PN46

MR DEAKIN: 10 September.

PN47

THE COMMISSIONER: It is S4.

PN48

MR DEAKIN: You see on that it is dated 10 September, Commissioner, and all of our notifications to the company continuously stated the same bans. However, on the one I sent across by registered post on September - 7 September, I registered here and took it across the road and delivered by registered post. On Monday, we had a meeting at 7 o'clock in the morning, 7.30 in the morning with the employees before sending any more information across to the employer. If you look at, on the second page, it says:

PN49

The following bans will commence into force on Friday 14 September.

PN50

So they received this on the Monday. For them to say they didn't receive any notification of this coming into place on the Friday is incorrect. In fact, on Tuesday, they sacked a female frigeration mechanic which caused a kerfuffle and meant the guys brought the bans back to the workshop in anger at what had happened to Ms Pamela Baker. At that discussion, even then I said to Mr John Purdy that there is another letter on its way, John, it is for the bans on overtime and call outs starting Friday.

PN51

What we have attempted to do, on the first notifications, Commissioner, is the length of time was incorrect. It was between 7 and - 17 and 24 August, which was an oversight by my boss and I said to him that that period of time was not long enough. So we then sent another one in with the same bans and limitations in, in other words, having a continuation of that so that we don't leave ourselves open to 127 action. We attempted, in all aspects, to comply with the regulations. No way in this world have we ever attempted, at any time, to contravene those regulations.

PN52

Then there was the last one in question, 7 September. We thought we had given more time, considering I walked out of the Commission and normally get the registered mail the next day, that was on the Friday. On the Monday I actually sent the letter across to them notifying them what those bans are. The only thing that we added to those bans that we had already stipulated, all the way through, two more. That was a ban on overtime and a ban on call outs. The company has come to the Commission to seek a 127 but if you look at those bans that we put in place, Commissioner, they are very minimum and it would be harsh and unjust for the Commission to say - to support a 127 action against the unions and the employees because most of that - - -

PN53

THE COMMISSIONER: Mr Deakin, the test in relation to the issuing of orders pursuant to section 127 are quite specific and have been the subject of Full Bench cases and Federal Court. The harsh and unjust element is not a consideration.

PN54

MR DEAKIN: Okay. If I may continue, Commissioner, I apologise for that remark. However, we have the proof that that was faxed across to Mr Purdy, that letter, on the 10th. They have admitted they received it on the 10th. They identified the two bans. In fact, we went as far as to identify they by separating them. The following bans will come into force on Friday 14 September 2001. The intention of that was to identify them and not misleading them in any way that the existing bans that we have been, we have now added two more bans to that list to ensure that we don't step into taking industrial action outside the terms of our documentation. That was the whole intention of what we have done.

PN55

Now, if they are hanging their hat on that one period and I have said to the Commission that we have complied with the spirit and intent of the legislation. I mean, to hang your hat on crossing the t's and crossing the i's in may cases we know we all have to do. However, we have compiled with - we have faxed it across to them. We have put it in writing what the bans are going to be. We have put in registered mail, plenty of time before the matter happened. In fact, we were looking at that ban - actually probably wouldn't come into play until probably Saturday or the Friday evening, simply because of the situation of how it existed.

PN56

We were talking about bans and overtime and call outs. So we thought we would be well within by putting the registered mail across 7 days ahead, we would well and truly be within that period. If you look at the bans, there is only one that is a real - that you would say is part of their normal work, is the completion of paperwork. The carrying out of personal mobile telephones. These people carried their own mobile telephones and the company uses that, without any purchase, without any payment for the use of those mobile telephones to call the guys and ask them to ask them to go and do jobs elsewhere.

PN57

In otherwise, it is a service that the guys themselves are providing and are not getting any payment for so it is a goodwill thing. We have withdrawn all our goodwill as far as our bans are concerned. The only other ones that really are going to come into force and those are the two, the one is a ban on overtime and the ban on call outs and that with the cessation - completion of all paperwork. So we have said over the last couple of weeks the bans themselves that we have put in place have been a minimal ban. They have been a ban that really has, as I explained to the people, will not have a quick result. It will not be hurting the company too much in its way but it would show that you are intending to pursue the matter.

PN58

You will see on our documentation that we sent across on our log of claims, all the way through this, is a rostered days off is a major issue. That is one of our main points on our EBA and that is why we have got that one here before, Commissioner. I would say we believe we complied with the Act. We have made sure that we have had continuation of everything that we have done. We have not changed the bans.

PN59

Every time we have the things in place the same bans have been going on. It was only on that one period of time and we thought we had that one covered well and truly by registered post 7 days prior. However, we did, on 10 September, fax to the employer that those bans would be coming into place. We separated them from the rest of the bans so they could see which ones are going to be included in. We thought we complied with the regulations, the spirit and intent of the regulations, Commissioner.

PN60

THE COMMISSIONER: Well, you may have complied with the spirit but there may well be technical argument here. However, prior to going into the detail of that I note, Mr Short's submission, and I think the most useful thing would be for us to move into conciliation conference in relation to this matter.

OFF THE RECORD

PN61

THE COMMISSIONER: All right. Thank you for that report-back from your meeting. I note that tomorrow on 25 September there will be a meeting with Mr Deakin and the relevant members and also a meeting with the company and the relevant representatives of the union. I'm hopeful that there will be able to be some issues which are resolved through that process. In the meantime I think it would be useful if the bans were put in abeyance while that process proceeded. Whilst I don't formally commit it to writing I trust that the parties would raise that with the employees.

PN62

The parties are open at short notice to apply to the Commission for further hearings. If there are no issues that you can resolve I note that there are requirements in the manner in which the Commission should deal with section 127 and it would be open to the company to come back and to reactivate that application. I trust that won't be necessary and that the main issue that we have before us now, with which the Commission is prepared to assist, relates to resolving the range of matters that are outstanding on the enterprise bargaining agreement. There being nothing further, these proceedings are now adjourned.

ADJOURNED INDEFINITELY [12.49pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #S1 LETTER DATED 27/08/2001 PN9
EXHIBIT #S2 LETTER DATED 05/09/2001 PN12
EXHIBIT #S3 LETTER DATED 06/09/2001 PN12
EXHIBIT #S4 LETTER DATED 10/09/2001 PN22
EXHIBIT #S5 NOTICE DATED 20/09/2001 PN32