BP2001/3011, Transcript of Proceedings [2001] AIRCTrans 3135 (15 November 2001)

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TRANSCRIPT OF PROCEEDINGS


O/N 0982

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

JUSTICE MUNRO

BP2001/3011

APPLICATION FOR TERMINATION
OF BARGAINING PERIOD

Application under section 170MW of the Act
by Community and Public Sector Union for
orders to terminate bargaining periods in
C No 39174 of 2000

MELBOURNE

9.54 AM, MONDAY, 29 OCTOBER 2001

PN1

HIS HONOUR: This matter arises under, in effect, section 170MW and section 170MX on 20 September, 2001, Vice President McIntyre in a statement issued as print 909401, indicated that he had exercised conciliation powers under section 170MX(2). A Full Bench was established by the President on 24 September and the matter has been listed today by me for directions with the concurrence of members of the Full Bench. I have, in association with the direction, listed - also set out - with the listing, I mean I have set out a draft direction with the request that the parties, in effect, show cause why a direction in the form attached should not issue. That direction does contain one or two typographical errors and I apologise to the parties for the delay in commencing this morning.

PN2

Perhaps it might be best if I take appearances, although I appreciate that there have already been, in part at least, entered into in the 170MW proceeding before Vice President McIntyre. Appearances please.

PN3

MR M. PERICA: I appear for the CPSU.

PN4

MS K. REHN: I seek leave to appear for the Joint Services Department and with me is MR S. AIRD of the Joint Services Department.

PN5

MR D. FELDMAN: I seek leave to appear on behalf of the majority of Liberal and National Party electorate officers.

PN6

HIS HONOUR: All done? Yes, is there any objection to leave to appeal?

PN7

MR PERICA: No objection today, your Honour, what we may reserve our rights to argue revocation at a later stage, should that be necessary.

PN8

HIS HONOUR: Very well. Well, I grant Mr Feldman leave to appear and that also extends leave to intervene. You are of counsel, are you, Mr Feldman?

PN9

MR FELDMAN: A solicitors with Deacons.

PN10

HIS HONOUR: I will reserve rights, should there be objection to the grant of leave to intervene, but if there is to be any objection, that will need to be, I think, put on in association with the case that the CPSU makes at some stage. Have you had an opportunity to consider the draft direction?

PN11

MR PERICA: Yes, your Honour.

PN12

HIS HONOUR: Yes, perhaps you fire away, Mr Perica, and - - -

PN13

MR PERICA: There is - and I realise you have the ceremonial sitting at 10 o'clock - - -

PN14

HIS HONOUR: I am fairly free in relation to those matters, Mr Perica. Do not feel yourself constrained if you need longer. I am not a participant in that. They have to have a sharp ..... which I would have been late for in any event.

PN15

MR PERICA: Yes. Well, perhaps if I can just prelude what we say about the directions with a short - there has been events of the last week that have impacted on the directions in the future of this case and have the potential to. Your Honour, one of the matters that is in issue in these proceedings is a link between the pay of federal electorate officers and state electorate officers in Victoria. Recently, over the last three or days, the federal electorate officers voted for and accepted - the majority accepted an LK agreement and it has a relevant sort of - one of the relevant matters in that is an element of retrospectivity.

PN16

Now, I do not think - I think it is safe to say that that has brought the ..... to the parties, the positions of the parties, somewhat closer together. Now, this may one or two consequences in that it is now - we say it is now possible that we could negotiate an agreement and in those circumstances we may not have to trouble the Full Bench. The alternative is that it will alter the shape of the case we would otherwise make to a Full Bench. So from our point of view, things are in a state of flux, but minded that we are fairly hopeful that with intensive negotiations over the next week or so, one or other of those two effects will be known.

PN17

Now, turning to the directions, your Honour, I have had a discussion with my friend, Ms Rehn, about this matter. If you turn to paragraph 3 of your draft directions, which is the date for the department and interveners to lodge written outline and material. Ms Rehn tells me that in order to fit in with the cycle of cabinet - - -

PN18

HIS HONOUR: I think that is the typographical error I was referring to. I think that was probably meant to be - - -

PN19

MR PERICA: November.

PN20

HIS HONOUR: Yes, it was either November or December, but I cannot remember which.

PN21

MR PERICA: Your Honour - - -

PN22

HIS HONOUR: I think probably November, because you had had a fair bit of time to discuss with each other and that then gave the response date, 23 January, 2000 but I would be open to persuasion on that either way.

PN23

MR PERICA: Well, as I understand Ms Rehn, there - in order to fit in with the cycle of cabinet approvals, I understand that she wishes to - and perhaps you can hear from her on this, push out that date to 7 December, 2001, which we are happy to do. And paragraph 10, the conciliation date, I understand Ms Rehn would prefer if that could be 11 December, 2001. And we are comfortable with those changes. And given those - - -

PN24

HIS HONOUR: Yes, go ahead.

PN25

MR PERICA: Given those dates, we would request that the 20 November date in the second paragraph could be extended, pushed out to Friday 23 November, so it is an initial three days.

PN26

HIS HONOUR: Sorry, which paragraph is that?

PN27

MR PERICA: 2, push that out to - I have not discussed this with Ms Rehn, but 23 November, 2001 for our - so it is another additional three days basically.

PN28

HIS HONOUR: You are looking to 23 November rather than the 20th.

PN29

MR PERICA: Yes, which is a Friday rather than a Tuesday. Your Honour, that is what we would press, but of course should the negotiations bear fruit, we will advise you. Also, if it turns out that, as I say, this new circumstance may impact on the shape of our case, if there is a problem with us complying with any deadline, we will exercise our liberty to apply.

PN30

HIS HONOUR: Yes, do you think - is there a high probability of the matter being resolved without the conciliation?

PN31

MR PERICA: Probably. Probably.

PN32

HIS HONOUR: I have some difficulty on the 11th. I think it is a theoretical difficulty. It is a Full Bench roster, I think, in Canberra, but - there are not a lot of appeals from Canberra, but I could leave it or else you could have the 10th or the 12th, I suppose.

PN33

MR PERICA: The 12th would be happy - would be good as far as the CPSU is concerned, your Honour.

PN34

MS REHN: That would not present us with any difficulty, your Honour.

PN35

MR PERICA: So that is all I wish to inform you of and hopefully we can resolve it without any - the Full Bench having to take submissions.

PN36

HIS HONOUR: Well, that would be the preferred course. I thin - - -

PN37

MR PERICA: One thing, your Honour, perhaps - - -

PN38

HIS HONOUR: I think we have reserved leave to apply in any event, have not we?

PN39

MR PERICA: Yes.

PN40

HIS HONOUR: So if the - if it is sought to vacate the directions, then perhaps you might let us know that as soon as reasonably practicable to - because we also have to hold spaces vacant for those particular days and if they are not likely to be needed, then the sooner we know that, the better.

PN41

MR PERICA: There is one other possibility, your Honour. Perhaps if you could inform us as to your availability over the next - if you are not in Melbourne, then perhaps - which you could not avail yourself - we cannot avail yourself of your assistance to resolve matter, but if you are in Melbourne there may be a possibility that if we need a bit of a nudge, for the Commission to be involved in some way. I do not - - -

PN42

HIS HONOUR: I think that would need to be the subject of some sort of application.

PN43

MR PERICA: Yes.

PN44

HIS HONOUR: I had given some thought. I am taking some time in November away, but I did not have much trouble - schedule to Melbourne. In fact, I think the 4th was the first occasion, but perhaps if you could let me know if there is a need or if you have become bogged down and certainly the Commission, one way or another, will try to find some means of providing assistance.

PN45

MR PERICA: Thank you, your Honour.

PN46

HIS HONOUR: Yes, Ms Rehn.

PN47

MS REHN: Your Honour, we would be assisted by the date changes suggested by Mr Perica, particularly on account of the parliamentary timetable - there are several sitting days scheduled between 20 November and the 29th, and then the issue of cabinet approval of the department's position in the matter, so certainly those changes would assist us.

PN48

HIS HONOUR: Very well, just as I am running through them, paragraph 2, 20 November becomes 23rd. Paragraph 3, 29 March, 2001 becomes 7 December, 2001. Then no change until paragraph 10, 10.15 am on 12 December, 2001. I think that is all. Mr Feldman.

PN49

MR FELDMAN: Your Honour, we support those date changes and we would seek one further amendment in paragraph 1, if the proposed date of 12 November could be altered to the Friday of that week, that would certainly assist us in preparing those documents set out in paragraph 1.

PN50

HIS HONOUR: Well, I think all of the days have slipped out by three days. Is there any difficulty with that? There is - in a sense, while that is just over a fortnight away, in default of agreement each party shall comply with this by lodging a draft of the award or award sought. If you reach agreement, well and good, and I hope you do. If you do not reach agreement, then you may take it that that is a fairly straight forward and likely to be insisted upon part of the direction from the Commission's viewpoint. So 15 November does represent a point at which some real work has to be done.

PN51

And if you are disposed to reach agreement, then I would encourage you to put the work into it at the earliest date, so as that if you nearly provisionally agreed, then you can perhaps have by an agreement basis that you do not have the draft award, which from the experience that the bench brings to bear in these matters, the critical thing of the 170MX arbitration is to get down to what is the final document that is going to emerge and whether it is a 170LK agreement or some other form of agreement or an MX award, it will still be something that starts with a title and ends with - by the Commission and it has commands and salaries and things in between.

PN52

Now, that is the work that you would have to do one way or another, whatever you get into, so 15 November seems a pretty sensible deadline to get as much of the agreement into concrete form as you can. And that means the agreed MX award or the agreed agreement and identify what it is that you are not agreed about, if there are still outstanding points. And that, at least from my point of view, seems to be the critical path to getting the matter resolved as expeditiously as possible, preferably by your own agreement.

PN53

But subject to those changes that have been made, I take it there is no objection to Mr Feldman's suggestion to 15 November. I would have that would assist you all. Are you happy for that direction to issue, liberty to apply and come back to me or let me know if you do not need the Commission at all, other than to the - whatever it is? Very well, the Commission will adjourn. A copy of that direction will be issued to the parties in due course.

ADJOURNED INDEFINITELY [10.09am]