C2001/4994, Transcript of Proceedings [2001] AIRCTrans 2900 (26 October 2001)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER CARGILL

C2001/4994

AUSTRALIAN MANUFACTURING
WORKERS UNION

and

CUMBERLAND NEWSPAPERS GROUP

Notification pursuant to section 99
of the Act of a dispute re alleged
breach of clause 15A at the Central
Coast plant

SYDNEY

12.05 PM, THURSDAY, 11 OCTOBER 2001

PN1

THE COMMISSIONER: Could I have the appearances, please?

PN2

MR I. MORRISON: If it please the Commission, I appear on behalf of the Australian Manufacturing Workers Union. With me today is MR P. BENDER, the Father of the Chapel from the plant.

PN3

MR A. CUNNINGHAM: If the Commission pleases, I seek leave to appear for the respondent, Cumberland Newspaper Group.

PN4

THE COMMISSIONER: Thank you, Mr Cunningham. Mr Morrison, have you got any objection to Mr Cunningham's appearance?

PN5

MR MORRISON: Yes, we do, Commissioner. The union fails to see what subject matter in regard to this would require Mr Cunningham's presence, and we also fail to see how the company could not be adequately represented by any of the other people here representing the company at the bar table today. Thank you, Commissioner.

PN6

THE COMMISSIONER: Mr Cunningham?

PN7

MR CUNNINGHAM: Commissioner, I press my application. There is actually in fact a matter before the Commission which does require my representation in order for the company to be properly represented. There is an initial issue about jurisdiction. It is the company's contention that the dispute notified here is not a dispute within the meaning of the Act, there is no jurisdiction. My client reserves its right in that regard, and would require me to put argument about that should that become necessary. Having said that, if the union is prepared to take a positive approach to this, then so are we, that is, that we are prepared to deal, at least initially, with the matters which are alleged to be in dispute while reserving our position, as I have said, but we do reserve our right to raise that argument if that argument needs to be put.

PN8

In my submission it would be appropriate for my client to be represented by me in putting that argument and, therefore, I press my application for leave to appear under section 42(3) and, as I've said, and on the basis that I've put, say that is the subject matter where there are special circumstances that make it desirable that Cumberland Newspaper Group be represented by a solicitor. Thank you.

PN9

THE COMMISSIONER: Thank you, Mr Cunningham. Mr Morrison?

PN10

MR MORRISON: In light of what Mr Cunningham said, and the fact that the parties both appear to be here to try and resolve the situation, we will agree that it would be appropriate for Mr Cunningham to appear.

PN11

THE COMMISSIONER: Well, in that case, seeing there is no longer any objection, I'll grant leave to Mr Cunningham to appear. So, Mr Morrison, perhaps you can enlighten me at least about the nature of the dispute please?

PN12

MR CUNNINGHAM: Yes, Commissioner. The reason why the union has made the notification of the existence of an industrial dispute between our members and the Cumberland Newspaper Group is due to the actions of the company at their Central Coast plant. The company has attempted to introduce a new technique production, that is, a new technology by way of electronic job bags, picture and copy, and Mr Bender perhaps later might be able to give a more detailed explanation of what that actually means.

PN13

The Australian Manufacturing Workers Union is not opposed in principle to any plans to improve the employability of their members, however, these plans must be in accordance with agreed processes, and we consider that this new technology actually threatens members jobs. What the AMWU is seeking today is, firstly, recognition by the employer that they were in error in not properly consulting as they are required to do under clause 15A of the Country Printing Award, and I would firstly like to hand up a copy of that clause just for your information today.

PN14

THE COMMISSIONER: I've got a copy of the award here, Mr Morrison, but you can certainly hand it up if you want, assuming it's the same one.

PN15

MR MORRISON: I would assume it would be.

PN16

THE COMMISSIONER: It says that it was inserted on 20 November, 1979.

PN17

MR MORRISON: Yes, that's correct, Commissioner.

PN18

THE COMMISSIONER: I presume, Mr Cunningham, you've probably got a copy of that somewhere, have you?

PN19

MR CUNNINGHAM: I do, thank you, Commissioner.

PN20

MR MORRISON: Secondly, Commissioner, and specifically why we are before you today, is to seek with the assistance of the Commission to ensure that the parties, and I mean both parties, fully understand how we can work together in the future to avoid situations like this recurring. Therefore, Commissioner, can I suggest that we would consider it appropriate after Mr Cunningham perhaps has his say that we go off record to discuss what I would see as a way forward rather than to dwell on what has occurred in the past. Thank you, Commissioner, I will just leave it there.

PN21

THE COMMISSIONER: Thank you, Mr Morrison. Mr Cunningham?

PN22

MR CUNNINGHAM: Commissioner, that's the first time that my client has been told precisely what this dispute is about. Certainly, they gleaned nothing from the dispute notification which is devoid of any detail. On my instructions, Commissioner, and it may be useful for me to elaborate on this in conference, but on the basis of my instructions this is extraordinary. What's being talked about is essentially the introduction of the receipt of advertising material from advertisers by email or by disc, by electronic means. That commenced in early 2000. It commenced following the 1994 unregistered agreement between the company and the union, and the 1998 unregistered agreement between the union and the company. I would like to hand up if I could, Commissioner, a copy of each of those agreements stapled together in one bundle. I don't seek to tender it at this stage, I'm happy for it to be marked for identification.

PN23

THE COMMISSIONER: Are you happy if they're marked in that way, Mr Morrison?

PN24

MR MORRISON: Yes, I am, Commissioner.

PN25

THE COMMISSIONER: I will mark them as MFI1.

MFI #MFI1 COPY OF AGREEMENTS

PN26

MR MORRISON: Thank you, Commissioner. If I could take the Commission to the 1994 agreement, which is the first in the bundle and, in particular, to clause 9 on page 2 which reads:

PN27

Employees will accept electronic material by disc, modem or on-line.

PN28

And they end the quote there. That's an agreement made on 3 February 1994, signed by the company and by representatives of the union, namely the then Father of the Chapel and Deputy Father of the Chapel, and in addition signed by a significant number of the employees themselves.

PN29

THE COMMISSIONER: What year?

PN30

MR MORRISON: 1994, Commissioner, the introduction of this technology was foreshadowed. Clause 15A requires three months notice. Commissioner, if I could then take you to the 1998 agreement next in the bundle and in particular to clause 2(f) on page 1, and I quote - well, actually, to put it in context, clause 1 provides that:

PN31

All demarcations will cease to exist and work will be performed by any employee in the most efficient and flexible manner possible.

PN32

Clause 2 commences:

PN33

Without limiting the principles set out in point 1, some of the work affected is as follows:

PN34

And then there are a series of subparagraphs, and subparagraph (f) reads:

PN35

Acceptance of any material in electronic form by any employee.

PN36

Now, again, Commissioner, an unregistered agreement entered into between the company and the union, signed by Mr Bill James, AMWU representative, and others. Mr Bender himself was a signatory to it apparently. 1998, Commissioner, the technology itself was introduced in early 2000.

PN37

I'm instructed that a Mr Parmenter, who was then employed by the company, had discussions with representatives of the employees and the union at the site in advance of its introduction, and that the response was a positive reception to the idea of the introduction of email. There were some peripheral concerns raised about employees being trained in Windows and such matters, and employees were in fact trained. This was 18 months to two years ago, Commissioner. There has not been a word of complaint, a word of any dispute about the introduction of email, the application of clause 15A or otherwise until now. I make these comments, I should say, without conceding clause 15A is in fact an allowable provision.

PN38

I understand that's a matter that will probably be determined by this Commission in other proceedings but, for the purposes of today, I don't concede that at all, but in any event, accepting it at face value, Commissioner, it is absolutely incomprehensible to us how it is asserted in those circumstances that there has been a failure to comply with clause 15A of the award; how there has been any failure to properly consult before introducing the technology. I don't have any instructions about the allegation that has been made and again, as I understand it, for the first time, that this technology somehow threatens jobs. We don't understand how that allegation is made, never been made before.

PN39

Commissioner, we really have to wonder, I have to say, why we are here, what is behind this dispute notification and what the motivation for it is because it's not apparent to us from what has so far come from the union. Mr Morrison may have something to say in reply to what I've just put. Certainly we would welcome it because, as I say, it's incomprehensible to us. Thank you, Commissioner.

PN40

THE COMMISSIONER: Mr Morrison, did you want to respond?

PN41

MR MORRISON: My instructions are that while the documentation put forward by Mr Cunningham is recognised and on its basis exactly what it is. It does set, if you like, a path for the introduction of the technology. The actual introduction of this technology that we're here today about has not been, as we would say in clause 15A, has not been the subject of any consultation with the officials of the union. The implications of that technology has not been the subject of any discussions with the union. That is simply what we are trying to do today, is to set up a process. I think if you recall my opening address, set up a process by which the ramifications and implications of this technology can be discussed, can be understood by our people because, as Mr Cunningham said, the question of loss of jobs, he finds this is the first time this has been brought. Well, that's exactly why we need to have these discussions because it is a very real fear of our members that somehow this technology will mean the loss of jobs.

PN42

Now, if the company can make assurances today that it will not mean the loss of jobs and will in fact, as I also said in mu opening, will actually enhance the employability of our members, then certainly, of course, any union would support that position. But it is what we don't know about this technology, what our members don't know about this technology is the reason for our notification, and that's why if that can be discussed today, if that can be resolved today, if the Father of the Chapel and I report back to the relevant officials and feel comfortable with it, then yes, let's proceed. But we feel this is our process for at least having the company recognise our concerns and giving the company the opportunity to address our concerns, and on that I'll suggest we go to the discussions off record.

PN43

THE COMMISSIONER: Mr Morrison, can I just clarify? Are you saying that in fact there is further new technology since early 2000, that is the concern, or is it in fact the technology that was introduced in early 2000?

PN44

MR MORRISON: It's further technology since early 2000 is of concern, yes.

PN45

THE COMMISSIONER: When are you saying that was introduced?

PN46

MR MORRISON: About two weeks ago, Commissioner.

PN47

THE COMMISSIONER: About two weeks ago, right. And the union officials you're talking about, are they the local union officials or are you talking more about your - - -

PN48

MR MORRISON: I'm talking about Ms Amanda Perkins, the divisional secretary of the union.

PN49

THE COMMISSIONER: Right. So it's more at the state office level rather than the local level you're - - -

PN50

MR MORRISON: Well, the local level official is here, and he also is here to participate in those discussions so he can report back to members and address their concerns.

PN51

THE COMMISSIONER: Right. Mr Cunningham, I think you wanted to make some comment about what Mr Morrison put?

PN52

MR CUNNINGHAM: Yes, Commissioner, thank you. Commissioner, in no apparent order if I just respond to those further comments. First of all, this is not new technology, this is the same technology. The only thing that happened two weeks ago was that the company introduced some further training for employees in that existing technology at the request of the employees. One of the matters that they have raised in the enterprise bargaining negotiations that have been going on between my client and the union is a concern that they hadn't been given enough training in that existing technology. The company's response was fine, we'll bring somebody up here to give you the training. That's what happened two weeks ago. So again, completely fail to understand how that's suggested to be the introduction of the new technology. I might add that the employees upon being told that the trainers were here to do the training refused to do the training; for what reason we don't know.

PN53

The next thing, Commissioner, and this is a cause of more deep concern, is what Mr Morrison is effectively saying, and this is the position, we haven't discussed this with the company, no attempt has been made to raise these issues directly with the company. Our first response is to notify a dispute to the Commission. We're not going to bother complying with the dispute settlement procedure, we're not going to bother complying with the convention of these matters being discussed at an employer or site level, we're going to notify a dispute to the Commission, we're going to bring people in from Parramatta, we're going to require at least one of our delegates to be allowed a day off work to come down from the Central Coast.

PN54

These are matters which should be discussed at a company level in accordance with the disputes settlement procedure before they are brought to this Commission. In my submission, that is a basic principle. It hasn't been discussed with us. If the union would like to discuss that with us in that way, the company had never refused or declined to discuss anything. In fact, my instructions are that the company has throughout this whole process gone out of its way to make itself available for discussions about matters which the employees are concerned about, particularly in the context of these enterprise bargaining negotiations. Sure the company and the employees may not have been able to agree about all of those matters, but the company has gone out of its way to have discussions with them about those issues. They have no basis, no basis whatsoever, for avoiding or stepping around the dispute settlement procedures and the normal conventions.

PN55

I have given no assurances to day, the company is not giving any assurances today about anything because the company has learnt of this allegation of some threat to jobs exactly seven or eight minutes ago. Now if that is a concern, then the union should raise that in the appropriate way and it will be responded to in the appropriate way. Commissioner, we're prepared to go off record if the union wishes to do so, but we don't resile from what we've just put. Thank you.

PN56

THE COMMISSIONER: I think then maybe we should go into conference, off the record.

OFF THE RECORD [12.23pm]

NO FURTHER PROCEEDINGS RECORDED

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

MFI #MFI1 COPY OF AGREEMENTS PN26