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Australian Industrial Relations Commission Transcripts |
AUSCRIPT PTY LTD
ABN 76 082 664 220
Level 7, ANZ House 13 Grenfell St ADELAIDE SA 5000
Tel:(08)8205 4390 Fax:(08)8231 6194
TRANSCRIPT OF PROCEEDINGS
AUSTRALIAN INDUSTRIAL
RELATIONS COMMISSION
SENIOR DEPUTY PRESIDENT O'CALLAGHAN
C2001/4613
BP2001/4459
KILPATRICK GREEN PROPRIETARY LIMITED
and
COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY,
INFORMATION, POSTAL, PLUMBING AND ALLIED
SERVICES UNION OF AUSTRALIA
Application under section 127(2) of the Act
for an order to stop or prevent industrial
action
Application under section 170MW of the Act
for an order to terminate a bargaining period
ADELAIDE
4.45 PM, WEDNESDAY, 7 NOVEMBER 2001
PN1
THE SENIOR DEPUTY PRESIDENT: Could I have some appearances please?
PN2
MR B. GRANTHAM: Sir, I appear of Kilpatrick Green Facility Management Proprietary Limited on Business SA as agents for the company. With me, sir, I have MR P. CASEY, operations manager for Kilpatrick Green Facility Management.
PN3
MR W. DEAKIN: I appear on behalf of the CEPU Electrical Division.
PN4
THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Deakin. Mr Grantham, perhaps you could tell me what you problem is, what brings you to this fine place at this hour of the day?
PN5
MR GRANTHAM: Sir, these issues or applications go to a workplace or a work site at the Modbury Hospital on Smart Road, Modbury. The company Kilpatrick Green Facility Management have, as the title implies, a facility management contract at the hospital where they provide maintenance services to the hospital in general. They employ some seven employees and I'm advised the majority of those are electricians. There is a chap who is a qualified plumber. I believe he also may be qualified in some areas of air conditioning.
PN6
There is a qualified carpenter and mechanical fitter who was employed, sir, up until today and I make no further reference to that given that that is an entirely unrelated matter as we see it in terms of the employment of the mechanical fitter which was terminated by the company today. I make reference to that only for completeness but we say that issue is unrelated to the two applications here before you today. Sir, the company has in place an agreement, a certified agreement certified by this Commission, was certified by Commissioner Tolley upon hearing the application for certification in Adelaide on 24 September 1999. The certificate of certification, if I can call it that, was dated 4 October. I will tender that, sir, just for completeness.
PN7
PN8
THE SENIOR DEPUTY PRESIDENT: I note that it is the Kilpatrick Green Facility Management South Australia Enterprise Agreement 1999.
PN9
MR GRANTHAM: Sir, the agreement, it is not on a - life expired on 24 months from the date of certification which I think the parties have deemed to be 4 October 1999.
PN10
THE SENIOR DEPUTY PRESIDENT: Sorry, it expired, the nominal expiry date was 4 October 2001?
PN11
MR GRANTHAM: That is my understanding that is how the parties have jointly seen the expiry date. I think at this stage, sir, and I've just noticed this, that given that the matter was heard on 24 September that the certificate was issued on 4 October and it may be academic as to when the actual cessation of the nominal life of the agreement actually did occur, whether it be 24 September of this year or 4 October. I would say it is academic and not necessarily totally relevant for today's purposes at least.
PN12
THE SENIOR DEPUTY PRESIDENT: Okay. Well, let us not debate it.
PN13
MR GRANTHAM: So given that the agreement was nearing the completion of its nominal life, the parties met, that is the company and the union and the consultative committee members engaged at Modbury Hospital by the company back in August of this year. I've got a number of exhibits, sir, so I'm just wondering if I might group them to save your associate wearing out his shoes. What I will hand up is - - -
PN14
THE SENIOR DEPUTY PRESIDENT: He quite appreciates the exercise, Mr Grantham.
PN15
PN16
THE SENIOR DEPUTY PRESIDENT: Mr Grantham, before you proceed, can you just refresh - recap on one particular issue? The number of employees engaged by Kilpatrick Green.
PN17
MR GRANTHAM: My understanding, it is seven.
PN18
THE SENIOR DEPUTY PRESIDENT: Seven, so are these - - -
PN19
MR GRANTHAM: Plus - sorry, I can give you a complete breakdown. There are two electricians, a plumber with air conditioning skills, a carpenter, a fitter as of up to today, an apprentice electrician and one boiler attendant, come tradesman assistant. That is seven in total.
PN20
THE SENIOR DEPUTY PRESIDENT: Thank you, and it is these seven staff or a portion of them who form part of this consultative committee meeting?
PN21
MR GRANTHAM: Yes.
PN22
THE SENIOR DEPUTY PRESIDENT: So you have handed up to me as A2, meeting reports that have indicated - are reports of meetings involving Kilpatrick Green, the union and consultative committee members and I'm simply seeking to clarify that the consultative committee members are drawn from an as yet unknown, on my part, number of people, drawn from that group of seven?
PN23
MR GRANTHAM: It is my understanding, sir, that the parties have proceeded on the basis that they are representative of the entire work-force.
PN24
THE SENIOR DEPUTY PRESIDENT: Which extends beyond the seven?
PN25
MR GRANTHAM: No, it only goes to those seven employees.
PN26
THE SENIOR DEPUTY PRESIDENT: Thank you.
PN27
MR GRANTHAM: Indeed, the two employee committee members are the plumber and the boiler attendant, come trades-person assistant.
PN28
THE SENIOR DEPUTY PRESIDENT: Very good, thank you.
PN29
MR GRANTHAM: What evolved through these meetings is that the union drafter up a document which really was a copy of a current agreement as I understand it with various amendments made to it indicating the union's claim on behalf of the members. The parties mutually agreed, if you like, to adopt a different document shortly thereafter, presumably to remove any omissions or editorials that were required and effectively this has been accepted by the parties as, if you like, the principle document which is the document I'm about to hand up to you from which the parties have referenced their - both the claim by the union on behalf of the employees and a counter-claim by the company.
PN30
Now, unfortunately - well, fortunately for you, sir, the items marked in blue are the union's claims on behalf of the employees and the items marked in red are the company's counter-claims, if you like, and/or response to the CEPU's claims.
PN31
THE SENIOR DEPUTY PRESIDENT: I feel indeed fortunate, Mr Grantham, I'm not quite sure why I should feel so fortunate but I do, thank you. I've just been advised that I should feel fortunate because I've got the colour version.
PN32
MR GRANTHAM: Yes, you certainly have.
PN33
THE SENIOR DEPUTY PRESIDENT: So I take it then as a consequence of the fact that you haven't got the colour version, the parties are in full agreement with each other?
PN34
MR GRANTHAM: No, I can tell you, sir, that your associate was good enough to do some photocopies for me a short time ago but as I've just been advised it is fortunate that Mr Deakin and myself do have a coloured version.
PN35
THE SENIOR DEPUTY PRESIDENT: Otherwise you would be in agreement and we could all go home.
PN36
MR GRANTHAM: Seemingly, yes, except there may be some confused reading. I don't intend at this point in time, sir, to wade laboriously through this document. I may come back to the document at a later time. Certainly I will be referencing in some detail the extent of the claims. At this stage I certainly tender it - I have tendered it for completeness of documentation today. Can I assume, sir, that is A3?
PN37
PN38
MR GRANTHAM: Sir, I will just clarify in terms and use the word "proposed", it is a working draft if you like of the agreement which encapsulates the claims of the two parties, the employer and employee parties.
PN39
THE SENIOR DEPUTY PRESIDENT: Very well, I will amend that to meet with your wishes and call it a working draft.
PN40
MR GRANTHAM: If I can just perhaps contrary to what I was saying earlier about not going to the document, if we can go to page 3 of the document and the classic example of how this is worded in clause 5, "Period of operation" readies the company's position that the agreement shall come into effect from the date of cortication and in blue is the, "employees position expressed through the union on 4 October 2001". That then is the tone of the document, what is in red is the company's position and what is in blue is the employee's position. I can advise the Commission that perhaps indicative of the situation that the parties find themselves in, this is the first and only right to date indicating a breakdown in the negotiations and they are my words.
PN41
Sir, the union then caused to serve upon the company the notice of initiation of the bargaining period and forwarded to the company in a letter dated 13 September and at least for my benefit so I can keep track with exactly where I am, sir, I perhaps will start handing some of these up individually.
EXHIBIT #A4 CORRESPONDENCE FROM CEPU DATED 13/09/2001 BEING A NOTICE OF INITIATION OF A BARGAINING PERIOD
PN42
PN43
MR GRANTHAM: The company responded to that in a facsimile dated 10 October, in effect, self-evident urging the members and the CPU not to implement any industrial action. The facsimile went on to state that:
PN44
KGFM, Kilpatrick Green Facility Management - I believe the current log of claims are outlandish and could not be met whilst keeping the contract with the Modbury Hospital commercially viable.
PN45
PN46
PN47
MR B GRANTHAM: I assume you don't have an original, sir, if you are wondering about the colouring. Apparently the company has a coloured printer. I actually like to make particular reference to this letter because in effect, as is self-evident from reading it, it is an attempt by the union through Mr Deakin to rationalise, justify the claim against the company. We say, make a point here - we believe that this provides an insight into our allegation. It came in the application in terms of terminating the bargaining period, that this supports our claim to the extent anyway of not making a genuine attempt at bargaining.
PN48
The union has sought on behalf of the employees at Modbury Hospital, a 2 year agreement with a 24 per cent pay increase during the life of that agreement. The breakdown of that is 6 per cent, from 4 October, 6 months hence another 6 per cent. Again 6 months hence from that date another 6 per cent and then what would be, if my calculations are correct, 18 months from 4 October, a further 6 per cent giving a total of 24 per cent. Of course, if the percentage increases were compounded, obviously they would be slightly in excess of 24 per cent.
PN49
If I go to item 6 in that letter, on the front page, the justifications are based on 8 per cent due to the CPI figure for the last 2 years which as I understand it, goes to the addition of the CPI figure for Adelaide, June 30 or the annual period ending June 30, 2000 and the 12 month CPI figure for Adelaide ending 30 June 2001. From recollection that last CPI figure, the year ending 30 June of this year, was in the order of 5.9 or 6 per cent and I apologise for my not being exactly precise there, as published by the Australian Bureau of Statistics so that would then make the preceding 12 month CPI figure somewhere in the 2 to 2.1 per cent range as my arithmetic tells me.
PN50
It then goes on and states that - sorry, if you go to 6.1, the figure is and what I was referencing earlier, should have been item 1 in that letter about the consumer price index at 8.1 per cent over the last 2 years. If we go now down to item 6, part 1, part of this justification for the 24 per cent pay increase is, in item 1, 8 per cent due to the CPI for the last 2 years and then a further 4 per cent each year for the next 2 years. So there's another 8 per cent and an 8 per cent in two bites are 4 per cent in catching up with the rest of the electrical industry. I, sir, and I believe that this would be shared by most people, have a difficulty in the justification for an agreement over a 2 year period containing being based or rationalised in part, want 8 per cent for previous CPI, 2 years, and want another 8 per cent for the next 2 years, so, seems like for 2 years we are going to have two bites - we are going to account for 4 years of CPI. I just make that point.
PN51
Item 4, electricians that an EPA in the electrical contracting industry being paid $19 per hour at trade level. Your company is only paying $16 for 5.4546 per at the trade rate. One could suggest, sir, that there is a distinct there at pattern bargaining which we say also say bridges the Act in terms of not bargaining at the enterprise level. I will conclude at this point in time, my comments in relation to that letter. For completeness I'm going to hand up some further exhibits to complete the picture as much as is possible. The company also caused to send a further facsimile to the union on 12 October of this year, simply referencing the notice of the intention to take industrial action which is now known as exhibit A5, advising the union that the company would be complying with section 187AA of the Act and that is: not pay for periods of industrial action.
PN52
Their position, sir, is that indeed the Act, as they see it, prohibits them from making payments for industrial action as defined - - -
PN53
PN54
MR B GRANTHAM: Just so that we are handing these up in chronological order, a further notice of the intention to take industrial action was forwarded to the company and was dated 16 October. My understanding, sir, is that the first notice of initiation to take industrial action which is currently now exhibit A5 really threatened, bans what I would call bans of limitation and not strike action itself. Perhaps out of, as a response to the company saying it would comply with the Act effectively and not make payments for industrial action, this prompted the employee, through their union, to step up, if you like, the industrial action in the form of a strike as - - -
PN55
THE SENIOR DEPUTY PRESIDENT: Consummate the threat of the industrial action is what you are suggesting?
PN56
MR GRANTHAM: I don't know. Exhibit A5 was advising the company, as required under the Act in terms of notice of the giving of authorisation to engage in industrial action bans and limitations. We suspect its a direct response to the company saying, well we won't be paying for periods of bans and limitations. The employees decided that, well if that is the case, we may as well take strike action. That is my version to serve them.
PN57
PN58
Then on 17 October the company became aware of an unsigned, I will call it a memorandum and they are my words, directed to board members of the nursing staff of Modbury Hospital, lambasting the company for - indicating that it would not pay for periods of industrial action - - -
PN59
PN60
MR GRANTHAM: The comments I would make with that, sir, is that the company was singularly unimpressed that he employees through their union were involving a third party in what is perhaps a fairly obvious and blatant attempt at coercing the company. The company then wrote to the union through my friend, Mr Deakin, via facsimile on 18 October. For completeness, I tender that as well, sir.
EXHIBIT #A11 CORRESPONDENCE FROM KILPATRICK GREEN FACILITY MANAGEMENT TO THE CPU DATED 18/10/2001
PN61
MR GRANTHAM: The union then caused to serve on the company a third notice of the giving of authorisation to engage in the industrial action bearing in mind at this stage sir, as evidenced or indicated in exhibit A5 - sorry, I amend that, exhibit A9 - in exhibit A9 the notice of intention to take industrial action was that employees would take strike action from noon each Friday to midnight each Friday night and again, a strike complete withdrawal of labour from midnight on each subsequent Sunday to noon each Monday. So if you like, a 12 hour strike, from Friday noon and a 12 hour strike from midnight Sunday to noon Monday.
PN62
They then caused another notice of the giving of industrial action to be served on the company and this again - this one is dated 31 October of this year.
PN63
PN64
In receiving it Mr Grantham can I just ask you to recap for me. Am I missing something obvious here. Has industrial action, in your submission, to this point actually taken place?
PN65
MR GRANTHAM: It has, sir.
PN66
THE SENIOR DEPUTY PRESIDENT: It has?
PN67
MR GRANTHAM: It has.
PN68
THE SENIOR DEPUTY PRESIDENT: Up to the date of the 31 October?
PN69
MR GRANTHAM: The last withdrawal of labour, sir, was last Monday.
PN70
THE SENIOR DEPUTY PRESIDENT: Thank you. Well, perhaps you could recap for me. You see I have three Form R41s here predicting if you like industrial action and the information that I'm missing is confirmation of when that industrial action - - -
PN71
MR GRANTHAM: Okay, I apologise, sir. I was actually going to address that and then - - -
PN72
THE SENIOR DEPUTY PRESIDENT: - - - actually occurred.
PN73
MR GRANTHAM: - - - missed the point.
PN74
THE SENIOR DEPUTY PRESIDENT: That is all right. Well if you - as long as you do get to it at some stage I'm more than happy to wait.
PN75
MR GRANTHAM: Yes sir, I'm about to get to that, sir. Perhaps, sir, perhaps quite rightly I should do that now actually. The first notice of intention of taking industrial action went to, what I would say are simply bans and limitations, no complete withdrawal, whatever. My understanding, sir, is that there was no real manifestation of those bans and limitations, perhaps because things moved fairly fast from there on, which caused, given that the company said: well, okay, if you are going to do it under section 187AA, we are prohibited from making payment, causing your reaction of them ramping up the industrial action, my words, to a complete withdrawal of waiver being this noon Friday to midnight Friday, again, midnight Sunday to noon Monday, commencing 21 October, which indeed actually did occur. It also occurred the following Friday
PN76
THE SENIOR DEPUTY PRESIDENT: So that the action that commenced on 21 October concluded when?
PN77
MR GRANTHAM: Well, 0001, perhaps 22 October.
PN78
THE SENIOR DEPUTY PRESIDENT: So it commenced on 22 October?
PN79
MR GRANTHAM: Well, if we count midnight Sunday night as the 21st or 0001 being Monday the 22nd.
PN80
THE SENIOR DEPUTY PRESIDENT: Yes, what I'm trying to do, Mr Grantham, is get to actually when, what time of what day did the action commence and what time of what day did it finish?
PN81
MR GRANTHAM: Okay, well, if I draw my maritime experience for precisely, sir - - -
PN82
THE SENIOR DEPUTY PRESIDENT: No, I don't mind, I don't mind just referring to a clock, you can do that.
PN83
MR GRANTHAM: Okay. Just that people have different views about when midnight occurs. Let us assume it is midnight Sunday night, 21 October, which obviously then means that very quickly we are into the early hours of Monday the 22nd, that withdrawal of labour ceased at noon, Monday the 22nd. Seemingly from then until noon, Friday the 26th, we proceeded as normal, where there was yet another withdrawal of labour to midnight, Friday the 26th. This pattern repeated itself for the following week with another withdrawal of labour midnight, Sunday, 28 October, ending noon, Monday, 29 October. Again, we seemingly proceeded as per normal until noon, Friday the 22nd, with withdrawal of labour concluding on midnight, Friday night the 2nd.
PN84
Presumably, concluding, sir, I don't have instructions as to whether there was a requirement for anybody to be called in on the weekend, I apologise for that. A withdrawal of labour, again, commencing midnight, Sunday, 4 November and proceeding to noon, Monday, 5 November of this week. What I have, sir, is my next exhibit is two weeks' worth of time-sheets, three examples of three separate individual employees engaged at the Modbury Hospital by Kilpatrick Green. Perhaps I will wait for - - -
PN85
MR GRANTHAM: For your information, so you understand, sir, you will notice in the top left-hand corner, United KG, that is one of the, I say, trading names, sir, of the group in which Kilpatrick Green belonged to. For completeness, United KG, it says the trading name, it picks up a number of companies that it wholly owns, they include Kilpatrick Green Facility Management Proprietary Limited; Kilpatrick Green Proprietary Limited, operating certainly here in South Australia and certainly the eastern seaboard; United Construction, a company operating predominantly in Western Australia; United Maintenance, Western Australia, South Australia. Just so that you understand why United KG is there.
PN86
Now, you can see from the time-sheet, week ending the 26th of the 10th the pay period finishes on midnight each Friday, I did notice by chance that the time-sheet of Gunther Lang, immediately under the time-sheet of Mike Mortiboy is dated week ending the 25th. Indeed, that should read the 26th. So you will have three time-sheets there which should all read 26th of the 10th week ending, excepting for the error in Gunther Lang's and, further, the three time-sheets for the same employees week ending the 2nd of the 11th. Now, you can quite clearly see this that for Monday and Friday of each of the two sets of time-sheets indicate effectively a half day worked. That represents the withdrawal of labour pre-noon Monday, post-noon Friday of both weeks.
PN87
Obviously, the time-sheet following the second set there for week ending the 2nd has not concluded yet, which would be the 9th of the 11th. So we can quite clearly see the consistent withdrawal of labour. I can advise the Commission that that is consistent for six of the seven employees, with the exception being the apprentice, who I believe did not engage in a withdrawal of labour and I've had that just confirmed to me. The other point I want to clearly make with regards to these time-sheets, sir, is that - and it is consistent with one of the grounds contained in the applications which you have before you and that is that we have time-sheets here from Mr Mike Mortiboy, the electrician, time-sheets for Mr Gunther Lang, carpenter and time-sheets for Mr Ron Lewis, a mechanical fitter.
PN88
Now, in the grounds for the section 127 application, particularly at the fourth ground:
PN89
The union and particular employees engaged by Kilpatrick Green Proprietary Limited at the Modbury Hospital are engaging in industrial action with one or more persons that are not protected persons in breach of section 170MM(1)(a) and section 170MM(2)(a) and (b).
PN90
We say, sir, that what has happened is that the union and the employees have taken industrial action, the union has attempted to comply with the requirements of the Act in terms of serving, bargaining period notices and notices of intention to take industrial action but where they have made a fatal error, we say, is that not all of those parties are protective persons. We say that quite clearly the electricians, engaged by the company, are protected persons initially but by actively acting in concert with the carpenter and mechanical fitter they are - the carpenter and the mechanical fitter, by virtue of the fact that they are incapable of legally belonging to the CEPU electrical division or CEPU in general, they are not protected persons and under section 170MM, parties who deemed protected parties, who act in concert with unprotected parties, are then deemed to be unprotected themselves.
PN91
I have for completeness a set of the rules of the CEPU that are lodged in this Commission, I wish to tender these rules, sir, they come in two parts, they have been down-loaded from this Commission's web-site, unfortunately, possibly only about the first dozen pages is absolutely relevant but I wanted to be sure that there was no suggestion that there was something contained in other pages. The relevant parts, sir, are really in the document which is - - -
PN92
PN93
MR GRANTHAM: The relevant sections really, sir, go to the document which is identified out of the two as in the top left-hand corner in brackets, 128V. If we can differentiate the two sets that you have in exhibit A14 and goes to, beginning on the actual third paging of possession, titled: page 1 of 56 or numbered at page 1. Section 2: constitution, which goes to the constitution of the CEPU and I use that abbreviated term because it takes about half an hour to give the correct title of the union which I will do only once, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Service Union of Australia (CEPU).
PN94
Now, I don't intend to go any further in terms of these rules, excepting to say that I cannot find in there that the constitution allows for membership of persons engaged in the vocation of carpentry generally and/or persons engaged in mechanical fitting in this State, in this industry. I will avoid reading laboriously from a number of pages on the basis that, sir, if it does not exist then you can't find it.
PN95
THE SENIOR DEPUTY PRESIDENT: Mr Grantham, can I just get some clarification from you? The 1999 certified agreement, did that purport to cover the collection of occupations that are now involved in this disputation, that is, did it cover one or more carpenters? Did it cover one or more mechanical fitters?
PN96
MR GRANTHAM: I'm not aware of any reference to a carpenter in the agreement, I stand to be corrected.
PN97
MR DEAKIN: If I may, sir, if you look at ..... unit, of the 1999 document, there's a couple of points there which, I reckon, go to the point of disputing what Mr Grantham is saying, because if you go to page 3.
PN98
THE SENIOR DEPUTY PRESIDENT: Bear with me, Mr Deakin, Mr Grantham has managed to bury me in paper here, I will need to find the - yes, now, which page do you want me to go to, Mr Deakin?
PN99
MR DEAKIN: Page 3, sir. If you go through to point 3: The parties bound:
PN100
The parties of this agreement are the Kilpatrick Green facilities Management Pty Limited in respect of work carried out in the South Australian branch of the company ...(reads)... employees of the company engaged under the terms and conditions of this agreement.
PN101
It then goes to point 4: Relationship to the Pairing Award:
PN102
This agreement shall be read and interpreted in conjunction with the National Electrical Communications ...(read)... shall prevail to the extent of any inconsistencies.
PN103
If you then go over to page 4, sir, part 8, it says: The Single Bargaining Unit:
PN104
This agreement recognises the CEPU, Electrical Division, and its accredited representatives as the sole legitimate representative of the employees covered by this agreement ...(reads)... in all dealings with the employer.
PN105
THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Deakin, that might be something we end up by debating a little later but I am not sure that it goes to my question. My question - - -
PN106
MR GRANTHAM: Can I perhaps add, sir, which may go partly to answering your question, that my understanding is that the company has applied the agreement certainly in terms of wage rates to the carpenter and mechanical fitter and indeed all seven employees and effectively have applied - I have had it to confirmed to me, sir, the company has applied the agreement - treated the agreement as applying to all seven employees regardless of their occupation, including the carpenter and the mechanical fitter.
PN107
THE SENIOR DEPUTY PRESIDENT: Thank you.
PN108
MR GRANTHAM: My point that I was making is that when it comes to engaging in so-called protected industrial action there are a set of rules to abide by. Section 170WM makes it quite clear that it is - protected persons are deemed unprotected if they engage in industrial action with unprotected persons, if they act in concert. I say - we submit to you that by virtue of the limitation of the union's rules not covering the carpenter and mechanical fitter that the carpenter and the mechanical fitter were indeed unprotected persons. The protected persons, being the electricians, acted in concert in taking the industrial action and then that deemed them by virtue of 170MM to be unprotected.
PN109
That, we say, gives us then the right to seek to apply in this Commission for an order pursuant to section 127(2) of the Act for a cessation of the industrial action. I have a decision - and I am about to run out of paperwork, you will be pleased to know, sir - that actually goes to section 170MM of the Act. Now, the background to this, sir, as I recall, is that there were - there was an industrial campaign, my words, in the State of Victoria undertaken by three unions, from memory, or involving three separate unions in the labour hire industry against a number of labour hire companies.
PN110
The AMWU served a bargaining period notice and the appropriate notice of intention to take industrial action. Unfortunately for the union parties the other two unions did not. The Full Bench of the Court of Appeal in the Supreme Court of Victoria found that the AMWU, seemingly being a protected - being protected persons as defined in the Act, became unprotected because they were engaging in action - they were acting in concert with non-protected parties and I distinctly recall one group being the AWU. I believe, from memory, and I stand to be corrected, I have just had - I have just read it, sir, the CFMEU, the Construction, Forestry, Mining and Energy Union, is the other party. Now, I will make reference to certain excerpts from this decision.
EXHIBIT #A15 DECISION OF THE SUPREME COURT OF VICTORIA RELATING TO NATIONAL WORKFORCE PROPRIETARY LIMITED AND OTHERS AND AUSTRALIAN MANUFACTURING WORKERS UNION
PN111
MR GRANTHAM: I will take you to page 4 of that decision. The Full Bench of the Court of Appeal of the Supreme Court of Victoria were going through the preconditions for protected industrial action. They had talked about the issue of the bargaining period notice, the issuing of the notice of the intention to take industrial action and the third pre-condition, I am reading about the second paragraph of page 4, third pre-condition:
PN112
Before the industrial action began the union generally tried to reach agreement with the employer.
PN113
Then I read the last sentence in that second paragraph, on page 4:
PN114
Finally, for present purposes the industrial action must not be taken in concert ...(reads)... the expression in section 170MM a protected person.
PN115
Now, my ground here is different than inasmuch as in this case the other parties in this particular case have simply not complied with the requirements of the Act in terms of the issuing of bargaining period notice and notice of intention to take industrial action but I say that, in this circumstance, the parties - the employees have acted in concert together with the union and some of those persons are incapable of being protected persons by virtue of them being incapable of legally belonging to this union.
PN116
Now, an extrapolation of what I am saying there is that if a union fulfils the obligation in terms of the Act in terms of bargaining period notice and notice to take intention industrial action or makes the genuine attempt to reach agreement, the employees - the only employees that can be involved in that protected action are members of that union. If we go further down page 4 and we could reference the decision of reference the Act, you see it is an extract from the Act, again it goes to my ground: Engaging in industrial action. It not protected if it is engaged in concert with one or more persons or organisations that are not protected persons.
PN117
I have sighted in my grounds 2(a) and (b):
PN118
Organised industrial action is not protected if it is organised in concert with one or more persons or organisations that are not protected persons or -
PN119
(b) -
PN120
It is intended to be engaged in other than sighted by one or more protected person.
PN121
I say that with exhibit A13, there is clear evidence of the employees acting in concert. Employees who are incapable of belonging to this union. Indeed, I can't tell you sir, whether they are indeed members of this union or not. All I am simply saying is this Commission cannot recognise them as members of the union because the union is incapable, through their constitution, of having them as members.
PN122
I will not labour the point, sir. I will draw to a conclusion saying that the company has applied the agreement uniformly across the entire workforce to the mechanical fitter is one thing. Sitting down and negotiating with a group representing the workforce is another thing. Totally separate and totally divorced from the legal situation of who can take protected industrial action. We say the industrial action that has occurred, that is threatened to continue to occur, is not protected action. We are not, therefore, barred, prevented by the Act in seeking - I should say this Commission is not prevented by the Act in exercising its discretion to issue an order pursuant to section 127(2).
PN123
We say this Commission should take into account that we say there has been a lack of a genuine attempt to make agreement of the claims from the union, extravagant to say the least. There are suggestions of bargaining and not a genuine attempt at bargaining at the enterprise level. Accordingly seek an order in the terms applied for. I submit to you, sir, that my submissions that I have made today go - relevant to both applications. I perhaps will pause there, sir, if you have any questions of me and/or to give my friend an opportunity to respond and I reserve the right to come back and make any final submissions.
PN124
THE SENIOR DEPUTY PRESIDENT: Mr Grantham, just a couple of brief questions. Can I take it that as a result of the existence of A3, which is the working draft document, the red-blue-black one, the Kilpatrick Green Facility Management Corporation is desirous of reaching agreement of some sort with the union. That is, what is the company's position here? Is it seeking a new agreement? Is it adverse to one? Is it ambivalent on the issue?
PN125
MR GRANTHAM: The company embarked on this progress, sir, in good faith with an intention to reach an agreement. I am aware that company's view in terms of reaching an agreement have soured somewhat. I just would like to pause and obviously Mr Casey has heard your question, sir. The company's position is they would like an agreement with their employees. One that they believe is fair and just to both sides, they do not believe there has been a genuine attempt by the other side to enter into those negotiations with that in mind.
PN126
What I did fail to raise to you is that through discussions the company was made aware that there was a view held by the other party that the company was making huge profits from this contract. The figures that were suggested were something like a management fee above costs, above all costs recovered, in the vicinity of some $80,000 per month. The company sought a meeting of the consultative committee in an attempt to correct that misconception trusting that if that seemingly was what was fuelling this seeming outlandish log of claims against the company for an agreement and that could be - that view could be corrected, that it would encourage the other party to modify its claims and we say, begin to negotiate and make a genuine attempt at bargaining.
PN127
That meeting was held on 23 October last month. The view that was gained by the company out of that meeting was that there was some recognition, if not total recognition, that figure of $80,000 per month in pure management fee was not correct. It was discussed at length. The meeting went for at least 2 hours - - -
PN128
THE SENIOR DEPUTY PRESIDENT: Sorry, Mr Grantham, who was in attendance at that meeting?
PN129
MR GRANTHAM: At that meeting was Mr Peter Casey, on the site manager KG at Modbury Mr Deakin, the two employee consultative committee members and myself. The meeting, as I recall, sir, went in excess of 2 hours. It is my view and it is the view from the bar table that there was - that whilst there was some acceptance the figure was not correct, that it did not really make any difference to their position in terms of their claim and that the company was extremely disappointed. They thought - they saw that as a way and means of if we can correct that misconception, perhaps they will return to the bargaining table and enter - make genuine attempts at bargaining. The meeting left the company with absolutely no confidence that the sobriety in their claim would result from that meeting.
PN130
THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Grantham. Two other questions. The exhibit - I appear to have misnumbered - for the sake of the exercise, the collection of consultative committee meeting minutes concludes with the last consultative committee meeting of 28 September 2001. Can you confirm to me how many other meetings, if any, have occurred since then of that consultative committee representing employee representatives, the CEPU and the company?
PN131
MR GRANTHAM: The only other meeting that has occurred since then, sir, is the meeting I was just describing to you on 23 October.
PN132
THE SENIOR DEPUTY PRESIDENT: Thank you.
PN133
MR GRANTHAM: The company's view is that - - -
PN134
MR DEAKIN: No.
PN135
MR GRANTHAM: Sorry, I didn't - - -
PN136
MR DEAKIN: The one that you referred to that you was at? No, there was another one in between that, there's 19 October.
PN137
MR GRANTHAM: I'm just checking.
PN138
MR DEAKIN: EBA meeting, 19 October. That was the rejection, that was the time we did the rejection of everything.
PN139
MR GRANTHAM: Yes.
PN140
MR DEAKIN: Income protection - - -
PN141
MR GRANTHAM: Sir, I stand to be corrected. It would appear that there has been - - -
PN142
MR DEAKIN: Sorry, sorry, 19 September.
PN143
MR GRANTHAM: It would appear, sir, that the last consultative committee meeting was indeed 23 October. The immediate preceding meeting was indeed 28 September which is the fourth set of minutes that were handed to you in the first exhibit.
PN144
THE SENIOR DEPUTY PRESIDENT: Thank you. The last question at this stage, Mr Grantham. You have made application for suspension or termination of the bargaining period pursuant to section 170MW(8). Now, as you would know probably better than I, section 170MW contains a number of grounds upon which a bargaining period might be suspended or terminated. I was just wondering whether you would care to provide me with some more information as to which combination of the various provisions of section 170MW you believe have relevance to this particular matter.
PN145
MR GRANTHAM: Sir, the particular section of the Act in which we make the application and I apologise for the incompleteness of my application. If I can make some sort of attempt at overcoming that by making an oral application right now to vary that, that this application specifically goes to the circumstances that are annunciated in section 170MW part 2 which goes to a circumstance for the purpose of subsection (1) and that is seeking that the Commission exercise its powers to suspend or terminate the bargaining period in that a negotiating party, we say, being the CEPU and its members, that before or during the bargaining period has organised or is taking industrial action, to support or advance claims in respect to the proposed agreement and (a) did not genuinely try to reach an agreement with the other negotiating party before organising or taking of industrial action.
PN146
We say (b) is also applicable. It is not genuinely trying to reach an agreement with the other negotiating party. So the specific answer to your specific question is that I am going specifically to section 170MW(2) part (a), part (b).
PN147
THE SENIOR DEPUTY PRESIDENT: The other question that I then need to ask or just get some clarification from you now and I'm very conscious that I'm not here to run anyone's case for them, is whether given some of the material that you have provided to me that seems to indicate some delayed response capacity as a result of the industrial action in terms of services delivered to the hospital. I need clarification from you as to whether or not section 170MW(3) has any effect in this regard.
PN148
MR GRANTHAM: We don't believe so, sir. The company has indicated to me that in the event of the withdrawal of labour the company would utilise the use of subcontractors to accommodate the requirements of the hospital. We will just seek instruction as to whether indeed that has occurred.
PN149
THE SENIOR DEPUTY PRESIDENT: Thank you.
PN150
MR GRANTHAM: I'm led to believe it has.
PN151
MR CASEY: Yes, it has.
PN152
MR GRANTHAM: You have heard Mr Casey.
PN153
THE SENIOR DEPUTY PRESIDENT: Thank you, thank you, Mr Grantham. Mr Deakin?
PN154
MR DEAKIN: Well, sir, I've got to say I think the employer is acting capriciously in bringing this matter in front of you today simply because I don't know why Mr Grantham - he couldn't have been at the same meetings I've been at and he couldn't have been aware of the attempts that the union and the employees have in bringing this matter to a solution, satisfactory conclusion. We have made all attempts and all efforts up until the final meeting to resolve and bring this matter to what we considered a fair agreement. Now, Mr Grantham has raised a number of things.
PN155
He has raised the first part where the meeting started to go wrong was when they started accusing the union of putting outlandish claims on the table. We then referred to - - -
PN156
THE SENIOR DEPUTY PRESIDENT: You have never had that allegation levelled at you, Mr Deakin? You have never heard that allegation before?
PN157
MR DEAKIN: Yes, I have, sir.
PN158
THE SENIOR DEPUTY PRESIDENT: Thank you.
PN159
MR DEAKIN: But I've got to say the unions have never stood back and tried to justify or justified any outlandish claim that was put on the table. Now, every time even politicians nowadays, sir, will make a statement and they have to justify what it is they've said. Now, we've done that, we did that, not because we just wanted to be pedantic or anything. It is just, sir, that the company know what the logic was behind our claim and in fact they asked us early on in the piece is to provide them with a number of companies where these wage rates that we are properly referring to are higher rates than what we were asking from the companies and I say there are about 30, 40 companies out there right now doing the same sort of service work that are paying their guys come February will be on a flat rate of $20 an hour.
PN160
They said to us: well can you please provide us with some information? We said to them: well look if you go back and start talking about your last agreement, the last agreement was the '97 agreement, CPI for the last 2 years was at 8.1 per cent raising cost of living but that does not include - and that CPI identification as you probably know, sir, is just a minimum in the cost of living. It is not a true reflection. So when you talk about the CPI you start talking about the minimums and you talk about with the exclusion of vegetables which was a 20 per cent increase last year.
PN161
You then don't want to include on your CPI council rates, gas, water, electricity, medical, transport, petrol and dental. You don't get those things, that is not included in CPI. We said that we believed that CPI will be coming up again. We don't intend, we want to recover that 8 per cent that we've lost and a 2-year agreement is allowing for the rise and fall in the CPI again over the next 2 years plus a wage increase. Now - - -
PN162
THE SENIOR DEPUTY PRESIDENT: Sorry, Mr Deakin, do you mind if I ask you questions as we go through? Given the time of day it might expedite the proceedings. The 1999 agreement as I read it provided for a set of rates of pay to come into operation upon certification of the agreement.
PN163
MR DEAKIN: That is right, sir.
PN164
THE SENIOR DEPUTY PRESIDENT: So presumably on or about 4 October 1999.
PN165
MR DEAKIN: That is right, sir, that is the one.
PN166
THE SENIOR DEPUTY PRESIDENT: It then provided for a 5 per cent wage increase on the anniversary of the certification so presumably on or about 4 October 2000.
PN167
MR DEAKIN: That is right.
PN168
THE SENIOR DEPUTY PRESIDENT: Now, as I'm endeavouring - you will need to bear with me, it has been a long day - as I'm endeavouring to follow your submission I'm looking at the exhibit A7 which is your letter to Mr Casey of 11 October 2001.
PN169
MR DEAKIN: Yes, sir.
PN170
THE SENIOR DEPUTY PRESIDENT: And endeavouring to reconcile particularly the information in paragraph 6 of that letter with your submissions to me and in that regard I see paragraph 6.1 talks of an 8 per cent due to the CPI for the last 2 years.
PN171
MR DEAKIN: Yes.
PN172
THE SENIOR DEPUTY PRESIDENT: I'm just wondering how you can explain or whether you can explain that to me in the context of a 5 per cent increase that became applicable on or about 4 October 2000?
PN173
MR DEAKIN: Well, we've taken the whole of the last document with a 9 per cent pay increase and out of that 9 per cent CPI went up 8.1 per cent. So basically out of that agreement we aren't moving forward at all and so what we are saying is that if we are starting to look at full per cent pay increases like people do nowadays you will find that you will be slipping behind and if we don't recover that 8 per cent we are still going to be no better off than what we was 4 years, 2 years ago because we've all lost 8 per cent. We got a 9 per cent pay increase so we are basically - and that is a minimum not a true reflection of CPI.
PN174
The reason we put that forward, sir, was an attempt to show that it was not an outlandish claim. It wasn't our argument starting and finish with that one argument. What we are saying is that you have asked for it, here it is. This is some of the logic of our thinking behind it and not only that, there is other companies that we've got a grievance with are paying a lot more than what you are. We've just done one with Frigrite where we have now - and that is a service company, sir, in Adelaide. I can present you with a copy of what Frigrite has presented to the workers, what has been offered by Frigrite to the service workers in that company and this is what I presented in front of them just on Monday.
PN175
We've been sitting down negotiating with Frigrite. We've had our disputes, we've had our fights like everybody else but at the end of the day what was happening with Frigrite is that they had their guys having to work a 40 hour week, paying them for 41 hours and then the boys this time round wanted a rostered day off. What has been offered to them now is a 36 month agreement with a 38 hour week based on the calculated rates of pay that the employees are receiving now for a 40 hour week and to some of them right now, sir, that would be a $54 a week pay increase as it is right now because they are on about $18.30 an hour now and then after that and 6 months after the certification they will get another dollar an hour.
PN176
After a year of the certification they will get another dollar an hour and after the 24 months they will get 75 cents and after 30 months they will get another 75 cents. So what we are talking about here, and then we will go on to the others, income protection, the company scheme. Availability for duty, we were asking for with Kilpatrick Green $120. The company is offering them as availability of the duty $140 a week with a minimum 4 hour call back at double time and anybody who gets, whoever gets called out to assist them, they also get a minimum 4 hours at double time.
PN177
Tool insurance cover, tools that will still be provided by the employer, a classification structure on top of that because this is the basic hourly rate that they talk about, trade level, at this point in time. This is trade level and we refer to a couple of other people. What we did add to that was the 10 hour rest breaks when people are on call-outs. So trying to get the logic across to Kilpatrick Green is that: hey, you are nothing special but when you start talking about a 24 per cent if people are on poverty then 24 per cent of a poverty rate of pay is still next to nothing. Now, if you are on $100,000 a year and you get a 24 per cent pay increase it is really something.
PN178
Now, we are saying that it is reflective of the rates of pay that these people are on. Now, the trades rates of pay on these people here is $16.45. I will say to you right now electricians out there with your Nielsens and other service companies and Butterworths who do service work too, they are on $19 an hour flat right now. They've not traded anything off with it. They get a $50 a week - sorry, they get $35 - plus $35 redundancy, fares and travel, site allowance on top. So it is not extravagant and come February they hit the $20 mark.
PN179
THE SENIOR DEPUTY PRESIDENT: Mr Deakin, could I again interrupt and seek clarification? In terms of the material you have provided in relation to the Frigrite air-conditioning matter I'm taking it that you are simply providing that to the Commission so that they can be aware from your perspective your claim on Kilpatrick Green is a serious claim rather than suggesting that I draw any other conclusions from the Frigrite proposal.
PN180
MR DEAKIN: Yes, sir, that is right, sir. The other thing that - - -
PN181
THE SENIOR DEPUTY PRESIDENT: Can I clarify though that the 24 per cent pay increase claim has been put to the company as a claim.
PN182
MR DEAKIN: Yes, it did.
PN183
THE SENIOR DEPUTY PRESIDENT: Is it something that your union anticipated negotiating on or was it a non-negotiable - - -
PN184
MR DEAKIN: No, this was through the discussions with the guys themselves in the hospital 24 per cent.
PN185
THE SENIOR DEPUTY PRESIDENT: But is it a claim that you anticipated negotiating on or was it a bottom line claim?
PN186
MR DEAKIN: We would like all the unions and like everybody else if you sit down at a table you are fighting hard as you can to get the best deal you can. The deal that we through on the table, we changed it from a 35 per cent agreement. When we first put a 35 per cent agreement on the table Kilpatrick Green went green but I have said to them that in electrical contracting we've done 36.1 per cent agreements for the guys taking them from $14.70 up to $20 an hour for AMEC which is certified and you can check this through the industrial, sir, it has been certified. AMEC agreement was a 37½ per cent agreement.
PN187
THE SENIOR DEPUTY PRESIDENT: I think you have answered my question for me. I'm quite happy with your answer thank you.
PN188
MR DEAKIN: So what we are saying, sir, we've bargained in good faith. We've made every attempt to sit down and negotiate. All right, we are hard negotiators. I don't pull back from it but once a person says to me round a table, and I have the witnesses there, you have got to offer a 4 per cent, take it or leave it, we are out of here. They were the first ones to get up from the table, walk away, so we've said - we went back to report to the guys. The guys said: well to hell with this. Now, as far as I'm concerned we didn't stop negotiating.
PN189
Mr Grantham was a meeting when we started talking about the CPI and the logics behind our claim and Kilpatrick Green was crying poverty and "poor old us." Well, there's a lot of companies out there the same level, the same industry doing the same thing paying a lot more than Kilpatrick were. Our members are here. They want to live, not live to work and we are saying that a tradesman at Kilpatrick Green should be treated as the same as any other tradesman out there who are on better rates of pay and that has been our basis of our arguments. We don't see Kilpatrick Green being anything special that they should pay lesser rates of pay than anyone else out there.
PN190
We are not asking for the same rates of pay because I honestly couldn't tell you what the 24 per cent rate of pay brings them up to because they are all on different rates of pay but what we are doing is trying to give them the basic and we've made every attempt to get this agreement up because I'm as busy as the next person. I don't want to be messing around being pedantic on something that drags out a potential agreement. We are not here to keep going forever and ever. We want agreement but when people say to us round a table there is 8 per cent on the table, take it or leave it, that is it, and knock off a lot of the other things that we put on the table that we would like and they have just rejected our right, no, so where are we to go?
PN191
I mean what could we do? Our response was we take it back to the guys, we tell the guys that we checked it, got everything put on the table and they've also said 8 per cent take it or leave it and got up from the table and walked out. That is when the guys decided that they would take industrial action. Now, I will refer to the bans that Mr Grantham referred to about the hospitals. I don't know whether he fully understands the working relationship that the guys have with the nurses and the rest of the hospitals.
PN192
Unions have always been condemned for not notifying hospital staff of what the bans and limitations was until the hospital staff found that there was no work being done. We've always made attempt to let people know if there's going to be some formal disruption what that disruption is going to be. Our first attempt to put industrial action in place was not to affect the hospital and we sent out the guys to tell them that if they hear about any industrial action going on don't worry about it, the work is still going to be done on their behalf, we are just going to put the bans and limitations on the paperwork, answering the telephones, working to rule basically as far as not doing jobs that the people haven't been given the paperwork prior to starting the job.
PN193
We attempted to do that. As soon as we started that action we then got notification from the company that any industrial action that these guys take they are not going to get paid for, even though they worked. I was called up to the hospital to meet with the boys. They asked me, well they told me that surely the company could not do this, if we worked they could not stop paying us. They didn't have the right to not pay us. And I said well under that section they can. So that is when the boys said: well to heck with this, if we are not going to get paid we are not going to work.
PN194
We then once again put a small what we would consider industrial action in place. It was a token effort, half a day on Friday, half a day on a Monday. The response that we then got from the company irritated the workers that much that they called me back there and said: listen this is going nowhere, the attitude of the company is now after the meeting that we had with Brenton Grantham and Peter Casey, the boys walked out of that room. The next day I get a phone call back that all the guys are so irate about the attitude of Mr Casey and Mr Grantham that they wanted to increase the bans.
PN195
They wanted to take the industrial action even further. So considering that we didn't initiate anything and that it was it was just a response to the actions of management, that is where we are up to right now. Mr Grantham asked me in that last meeting: is that your claim or is there any movement on that claim? My response to Mr Grantham was: well the company has never put anything forward, we've got to see what is being put forward. They haven't chose to do that and they haven't done it as yet.
PN196
THE SENIOR DEPUTY PRESIDENT: But, Mr Deakin, can I refer you to A3 which was the working draft?
PN197
MR DEAKIN: Sir.
PN198
THE SENIOR DEPUTY PRESIDENT: Can I have some clarification from you? Have you seen that document before today?
PN199
MR DEAKIN: Yes, sir, I assisted Mr Casey in putting that document together. What I did, I put a document up - - -
PN200
THE SENIOR DEPUTY PRESIDENT: So the company have put something to you?
PN201
MR DEAKIN: Yes, sir. The thing was this was the - my proposal to Mr Casey was this. We kept talking about a log of claims without looking at a document. We had these log of claims just floating around on the table. I suggested to Mr Casey that what we should be doing is put a document together first and then the log of claims as we argue and agree with, we will then put them into the document. The idea behind it was I would go away and put something together. Mr Casey did that. The document I put on the table I apologised to Mr Casey and I said: look some of the things in this because they are incorrect, I haven't had a chance to change them.
PN202
We both went through both documents. We agreed to take Mr Casey's document as a starting point. In other words as the carriage to throw everything into because it is basically a reflection of the other document. There are just some minor changes that we want to do. We then had the agreement that we put our log of claims in in blue, their log of claims in in red and then we will see how we can go. We then still said - - -
PN203
THE SENIOR DEPUTY PRESIDENT: When was this discussion over the red and blue featured document?
PN204
MR DEAKIN: That was going back, about 31 August. But at the same time that wasn't the only document, what we did, we then identified all our log of claims to sit down and negotiate on and we sit the document there. So, in other words, we didn't have draft forms, we didn't keep changing the document, we kept on saying, "What can we agree to?" And once they had agreed we would then put in the document later on down the track. If you look in the notes of the meetings that we had, is that you will see how we were doing it. We didn't put anything in more than the document, they would keep coming with different drafts, we just started arguing on the log of claims that has got to go into the document.
PN205
Once we got the dispute settlement procedure, the consultative committee and all the other issues sorted out then we could just then say: well, that is the basis of the document, now we got to argument on the log of claims and some of the things that - some of the minutes that I quickly wrote down as we were going through but there's some things we did agree to. We've got casual employment, clause 12.7, "Agreed, protect, rate IUS, check." In other words, we were going a lot of things that we thought we could agree with but it came down to some major issues, major points that we couldn't agree with and then, all of a sudden, and I've got to say all of a sudden, the attitude by Mr Casey changed.
PN206
Whether he was under instructions by his bosses, I don't know, but at one meeting, the last meeting that we had we sat down and we started talking about it and he said:
PN207
Well, I will tell you right now, the offer that we are going to be putting on the table, I can tell you, is a 4 per cent, take it or leave it. And if you are not - - -
PN208
We said, "No, we're not taking it." He said, "Well, we are out of here." And that is when the whole thing came to a grinding holt and that is when we decided: okay, they have thrown down the challenge, we've got to pick it up. And that is the genuine, and I will say to you, sir, that is the truthful approach that we took all through this negotiations. I think Mr Casey too will agree that sequence of events. It was only at the last meeting that he had, and I believe he would be under orders when he made those statements and he and Mr Ray Sharp got up from the table and walked away.
PN209
The issue of a representation, it seems - it just amazed me that, all of a sudden to start talking about the right to represent and the right of a membership, when in our last EBA agreement, at the urging of the employers, and I've got to say at the urging of the employers, they wanted one union to represent all employees in there. Now, they are referring to all these trades and these trades are no longer, or can't be parties or members - sorry, members of our union, I have got to this one thing, all these people get paid as per the Electrical Contracting Industry Award, they don't get paid as the Carpenters Award or the Fitters Award or the Metals Award or whatever, they come under the Electrical Contracting Industry Award.
PN210
Now, what we classify them in our union is up to us, but they are represented by the CEPU Electrical Division. We are the single bargaining agent for them, identified on their behalf. He refers to our award and relationship to the National Electrical Contracting Industry Award. When we talk about the trades that they are actually - or the work that they are actually doing, in fact, it was this union who were served each and every individual in that company, as far as classifications, working out their classification structure, nobody else was asked to be involved. There is cross-skilling between the carpentry and other trades, there is cross-skilling between the fitting and electrical trades, there is cross-skilling between the boiler-attendant and the electrical trades and the refrigeration and air-conditioning trades and a bit of carpentry so I think that the employers are just grabbing at straws and trying to find a back-door for the Commission to be involved in this dispute and the negotiations.
PN211
I will say to you that Mr Grantham is incorrect with his proposals that he is putting forward because it does not really reflect the same situation that exists here now when he put forward the decision for the National on A15, because you are talking about three different unions there. Where it is saying that: at the urgency of the company to negotiate on behalf of all the employees and we have represented them without any complaint from the company in the past on every issue that these workers have, or have had in the past, it has been the CEPU Electrical Division. So as far as I'm concerned is that I do not believe there is just grounds, for the actions being proposed by Mr Grantham or the company, on the union and the employees at Modbury Hospital.
PN212
THE SENIOR DEPUTY PRESIDENT: Mr Deakin, I want to put at least five scenarios to you and I am conscious that I'm putting them to you, and have yet to put them to Mr Grantham. I want to put them to you first of all in terms of seeing whether we might be able to find a way around this issue. I need to make it absolutely clear that these are five non-exhaustive options. As I began to think through this and the pangs of hunger began to gnaw away at me I figure it appropriate that we sort of toss up some of these options. It appears to me to be an option called: the Commission does not act in relation to the current two applications before me, at least not at the present time. In which case, it is conceivable that the industrial action would continue, the employees would continue to lose money.
PN213
There's a second option called: the Commission does not act at the present time in relation to the current action and the action could continue, the employees could continue to lose money. The company may then, as has been foreshadowed, take action in relation to the foreshadowed absence of protected industrial action. So that action could be directed, potentially, at individual employees or, indeed, pursuant to section 170 there are various other options open to the company in the event that the action continues. The third one is that the Commission could arbitrate the application in relation to section 170MW and depending on the outcome of that would then consider the section 127 application.
PN214
The fourth option is that the Commission could suspend or terminate the bargaining period and then immediately, in accordance with section 170, proceed to convene an attempt to try and conciliate the matter between the parties and the fifth one which is the one that I'm particularly interested in a reaction from you on, because even before it could be put to the company it would be very largely in your hands and that is that the CPU could propose the suspension of any industrial action to its members on this site to allow further discussions between the parties. On that basis the company, Mr Grantham might agree or might not agree. I am not trying to put words in his mouth, to delay the two applications and the parties may or may not need to use the offices of the Commission to try to facilitate any such agreement.
PN215
It seems to me that if we look at those five options the option that would appear to have the best chance of an outcome that is effectively controlled by the parties is that the industrial action is ceased immediately and the parties see if there is some scope to effect a negotiated outcome in this regard. Were that to happen, then it may be the company is prepared to delay further action in this regard and it may be that we could begin to address some of the issues that have coke out today that relate to not just wages, but also the capacity to represent various employees and the other potential components of the working document were being exhibit A3.
PN216
I wanted to put those five options to you and if you are a all like me you may require some clarification of the five options because, at this stage of the day, I would have difficulty absorbing the five options straight away. I'm very conscious that I haven't put those options to the company and they are the applicant in the matter. I am particularly interested in your reaction to that last option and that is, just to recap, the potential for proposal that any industrial action cease and for that position to be endorsed by your members. That there might be further discussions then between the parties, possibly even, should the need arise, referring those discussions back to the Commission as a precursor to the conclusion of these particular applications.
PN217
MR DEAKIN: I'm ready to negotiate any time, I mean if - - -
PN218
THE SENIOR DEPUTY PRESIDENT: Look, were you not such a reasonable person, Mr Deakin, I probably wouldn't have bothered putting that sort of option to you but I - - -
PN219
MR DEAKIN: I have a bit of a problem with some of the things you are saying, Deputy President. On the grounds that, if another offer had been put on the table by the Kilpatrick Green - United KG, as it was, in the last couple of weeks, we might have even considered something like that. However, this action being brought in front of you today leaves a question mark over everyone's head, especially those workers out there, whether they - the 127 action or this proposal being put in front of you now, carries any weight. In other words, is it a justified - can it be proven that the union did not, has bargained in bad face? I don't think we can.
PN220
Whether we have the right to cover these people - I believe that we do simply because they are paid under the Electrical Contracting Industry Award Agreement and they are members of the union so I believe in all those points that we are - - -
PN221
THE SENIOR DEPUTY PRESIDENT: Bear in mind, my - - -
PN222
MR DEAKIN: Having said that, sir - - -
PN223
THE SENIOR DEPUTY PRESIDENT: - - - options to you don't preclude any of that - those considerations, I'm simply asking you to comment, particularly on that last option which is the option which would only be worth putting to the company for consideration in the event that you thought there might be some merit in going down that particular path.
PN224
MR DEAKIN: I haven't got a problem with that. I've got no problem whatsoever of sitting down negotiating with the employers. None at all. I've got no problem with taking them further back to the members for tomorrow morning. I have to check that first.
PN225
THE SENIOR DEPUTY PRESIDENT: Perhaps while you are checking it, Mr Deakin, I will ask Mr Grantham if he would perhaps care to comment on my five non-exhaustive options and indeed particularly that fifth option or Mr Grantham, do you require a little time with your client in that regard?
PN226
MR GRANTHAM: I'm fairly confident I have the view of the company through its representative, Mr Casey, and I see Mr Casey is going to indicate quite strongly if I misinterpret his views in representing the company and that if my friend cared to indicate to the union that he would be prepared to approach the work force at Modbury Hospital and strongly recommend to them that they accept the option that you have mapped out, the company would be quite prepared to go down that path. Hopefully, recapturing what you put in part five and so that I know that I understand it, I will attempt to recapture that and that is that the CEPU meet with the employees and seek their endorsement of a cessation of industrial action that the company, in turn, seeks not to push the two applications before you for the time being, seeks to have the applications adjourned.
PN227
To allow the parties to explore new negotiations or renegotiations, it is often in my experience and I'm sure I speak for most people in this room that all staff parties go through the proceedings of attempting to negotiate, that sometimes both parties need some bruising to - and to seemingly get to a point where they can reflect and go away and come back after having been to this Commission, and reassess their approach and try and enter negotiation with some renewed vigour or intent. So in answer to you question, sir, the simple answer is, yes, the company is quite prepared to explore or accept a suggestion along the lines as you have put in terms of option five, we would, given - and I'm choosing my words deliberately here, sir, because I'm trying to avoid any suggestion of an accusation or an allegation about the other parties negotiating approach but we would - we think that given that we've come and got to this point that some referencing back to the Commission may be quite positive in as much putting, allowing the proverbial independent umpire to put some perspective perhaps into the negotiations.
PN228
It may be hopefully we are coming back and if that does occur we come back and we are simply reporting back some very positive progress but it may be that in coming back we can allow ourselves access to that independent, perhaps more objective view. That might assist the parties if they are reaching any impasse at all. I know I've been long-winded sir, but I hope I've answered the question.
PN229
THE SENIOR DEPUTY PRESIDENT: Mr Grantham, one further question. If Mr Deakin's diary allowed him or enabled him to visit the site tomorrow and if he was putting to his members that the industrial action that has been occurring over the past few weeks ceased to allow some further discussions between the parties, could I take it that the company would do everything possible to facilitate that opportunity for him to consult with his members?
PN230
MR GRANTHAM: Yes indeed, sir.
PN231
THE SENIOR DEPUTY PRESIDENT: Mr Deakin, I interrupted your perusal of your diary.
PN232
MR DEAKIN: Yes. I've got availability tomorrow morning to go there and speak to them. I think we will need a considerable amount of time considering the anger of the people. However, I'm prepared to put it without prejudice, without any, you know, as threats by the company that they can win this argument here in front of you today. I don't believe they can. I will take it back - without prejudice we will take it back to the guys to see if they will lift the bans and we will get the temporary negotiations. However, I've got to ask Mr Casey does he have any room to move on the offer that was on the table? Is he in charge of that area of the negotiations or do we have to sit down and have to negotiate with somebody else who can make those decisions? In other words, there's no point in negotiating something with Mr Casey if his hands are tied.
PN233
THE SENIOR DEPUTY PRESIDENT: Well, Mr Grantham, I must say I interpreted your response as saying the company has the capacity to sit down and negotiate, otherwise the exercise would become somewhat of a nonsense. I didn't interpret your response as implying any commitment to reach agreement but rather a commitment to attempt a negotiation. Am I right or am I wrong?
PN234
MR GRANTHAM: Yes, you are right, sir. I mean, Peter Casey does not pretend to have unlimited power within Kilpatrick Green. He obviously has a reporting line and if - and obviously Peter from time to time will take instructions. One would assume that ultimately those instructions are flavoured - I'm not suggesting necessarily directed by but flavoured by the CEO and ultimately the board. I'm sure Mr Deakin does not expect the CEO of the United KG group and/or the board to attend these negotiations. I don't want to - I trust that comment does not come across smart, it wasn't intended to be such, but I just wanted that point to be made. I have had to labour that point in another circumstance so please, I don't intend any smugness or smartness in that remark to my friend, Mr Deakin.
PN235
I certainly don't want to be seen to be going backwards in what has been discussed this afternoon but in relation I think it is important to make comment to put some context into what Mr Deakin was just saying then about whether these negotiations have any point to them re-entering negotiations. Rightly or wrongly the company, from the meeting on 23 October, came away with a conclusive view that the claims put by the union and in brief summary I am referring specifically to the 24 per cent wage claim - there's more than that, of course - a 2 per cent claim for income protection and other claims. We are talking about a series of claims in total that was close to 30 to 31 per cent.
PN236
THE SENIOR DEPUTY PRESIDENT: Mr Grantham, I don't want to interrupt you but I have heard Mr Deakin say that everything in this life is negotiable.
PN237
MR GRANTHAM: Can I say, sir, that what I'm trying to say is rightly or wrongly the company formed the view from the meeting of the 23rd that - - -
PN238
THE SENIOR DEPUTY PRESIDENT: Look, I'm accepting that may well have been the case.
PN239
MR GRANTHAM: - - - that wasn't - - -
PN240
THE SENIOR DEPUTY PRESIDENT: What I'm suggesting now is that we - I have heard Mr Deakin say his position is a negotiable position. I have heard Kilpatrick Green say their position is a negotiable position. I read nothing more or less into both of those statements other than there is a capacity to try to explore a consensus on this issue. There is no obligation on either party to make wholesale concessions on their position at all, but at the same time there is a preparedness to sit down and try to see what can be salvaged out of the red and blue working document A3. I am accepting, as I suggest that both parties are, that for good reasons or bad, the discussions that have occurred in the past have come unstuck but I'm suggesting that there may be very little merit in proceeding at this stage to try to work out why it is they have come unstuck.
PN241
MR GRANTHAM: I appreciate that.
PN242
THE SENIOR DEPUTY PRESIDENT: The effort ought instead go into exploring that potential for consensus. Now, I should say that in the event that the attempts at negotiation were unsuccessful, I can acknowledge that there is the potential to have to hear further argument on the extent to which meaningful negotiations or genuine negotiations are achievable.
PN243
MR GRANTHAM: We are certainly prepared to explore whether there is an avenue for the parties to get closer to agreeing to a number of issues. I suppose I wasn't as confident as I am now with regards to Mr Deakin's response to your questions about whether it is a - whether it is a claim you anticipate negotiating or is a bottom-line claim. I'm assuming that given your interpretation of his response and the fact that Mr Deakin isn't challenging you that he indeed was indicating that it wasn't a bottom-line claim. I'm more confident of that interpretation now than what I was earlier.
PN244
So in summary, yes, sir, we believe that there could be something - it is worth exploring the possibility of further negotiations obviously without the tension of industrial action being threatened. I'm mindful that the current or last notice of initiation of industrial action suggests a beefing-up or an extension of the industrial action to commence at 4.15 tomorrow afternoon. So it would be very timely if Mr Deakin was to go there tomorrow morning.
PN245
THE SENIOR DEPUTY PRESIDENT: Thank you. I am going to adjourn these proceedings. I am going to adjourn them with a recommendation and if the parties wish I will endeavour to make that available reasonably early tomorrow morning. The recommendation is that the CEPU propose the suspension of any current or threatened industrial action to its members to allow further discussions between the parties in an endeavour to reach consensus on a certified agreement.
PN246
If the CEPU and its members agree to this suspension of this industrial action or threatened industrial action the company should adjourn and consider the withdrawal of the current section 170MW and section 127 applications. The negotiations in order to explore a potential new agreement should commence within 5 days but it is understood by both parties that negotiations will be genuine but that this does not presuppose that agreement on the various issues will necessarily be reached.
PN247
That following the negotiation between the parties both the employer and the union have the option of seeking the assistance of the Commission to assist in their conciliation function. Finally, that in the event that the industrial action does not cease, the Commission is available to call this matter on or back on for further consideration at short notice. In terms of the discussions we have had so far I would invite any of the parties to advise me as to whether we have omitted something fundamental from that recommendation. On that basis I will adjourn these proceedings and bid you all a good evening.
PN248
MR DEAKIN: If I may suggest, sir, if you could fax that up to KG - United KG at Modbury Hospital first thing in the morning it would be appreciated so we can actually give a copy to the guys, get that printed off.
PN249
THE SENIOR DEPUTY PRESIDENT: Mr Deakin, perhaps - - -
PN250
MR DEAKIN: A recommendation from the Deputy President.
PN251
THE SENIOR DEPUTY PRESIDENT: If my associate could be provided with an appropriate fax number we will fax it to wherever you would like it faxed.
PN252
MR DEAKIN: Then I can have it there for a meeting.
PN253
THE SENIOR DEPUTY PRESIDENT: We will endeavour to do that.
PN254
MR GRANTHAM: What time would you anticipate the meeting occurring?
PN255
MR DEAKIN: Well, they start at 7.45 so I would suggest that the meeting start between 7.45 and 8, 8.30.
PN256
THE SENIOR DEPUTY PRESIDENT: Mr Grantham, I am going to adjourn these proceedings.
PN257
MR GRANTHAM: My apologies, your Honour.
PN258
THE SENIOR DEPUTY PRESIDENT: Thank you.
ADJOURNED INDEFINITELY [6.57pm]
INDEX
LIST OF WITNESSES, EXHIBITS AND MFIs |
EXHIBIT #A1 CERTIFICATE OF CERTIFICATION PN8
EXHIBIT #A2 MEETING REPORTS FROM VARIOUS CONSULTATIVE COMMITTEE MEETINGS PN16
EXHIBIT #A3 DRAFT COPY DRAFT 2001 ENTERPRISE AGREEMENT PN38
EXHIBIT #A4 CORRESPONDENCE FROM CEPU DATED 13/09/2001 BEING A NOTICE OF INITIATION OF A BARGAINING PERIOD PN42
EXHIBIT #A5 NOTICE OF AUTHORISATION TO ENGAGE IN INDUSTRIAL ACTION SERVED ON THE COMPANY DATED 04/10/2001 PN43
EXHIBIT #A6 FACSIMILE FROM TOTAL ASSET MANAGEMENT SERVICES PROPRIETARY LIMITED DATED 10/10/2001 PN46
EXHIBIT #A7 CPU RESPONSE DATED 11/10/2001 PN47
EXHIBIT #A8 FURTHER FACSIMILE TO THE CPU FROM TOTAL ASSET MANAGEMENT SERVICES DATED 12/10/2001 PN54
EXHIBIT #A9 4 BAR 41 FORWARDED FROM THE CPU PN58
EXHIBIT #A10 FORM OF ADVICE TO BOARD MEMBERS AND NURSING STAFF AT MODBURY HOSPITAL PN60
EXHIBIT #A11 CORRESPONDENCE FROM KILPATRICK GREEN FACILITY MANAGEMENT TO THE CPU DATED 18/10/2001 PN61
EXHIBIT #A12 THIRD FORM R41 PN64
EXHIBIT #A13 VARIOUS TIME-SHEETS PN85
EXHIBIT #A14 THE RULES OF THE CEPU PN93
EXHIBIT #A15 DECISION OF THE SUPREME COURT OF VICTORIA RELATING TO NATIONAL WORKFORCE PROPRIETARY LIMITED AND OTHERS AND AUSTRALIAN
MANUFACTURING WORKERS UNION PN111
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URL: http://www.austlii.edu.au/au/other/AIRCTrans/2001/3213.html