C2001/1442, Transcript of Proceedings [2001] AIRCTrans 520 (9 April 2001)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 4, 179 Queen St MELBOURNE Vic 3000
(GPO Box 1114J MELBOURNE Vic 3001)
DX 305 Melbourne Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS


O/N 6493

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT KAUFMAN

C2001/1442

APPLICATION FOR AN ORDER TO STOP
OR PREVENT INDUSTRIAL ACTION

APPLICATION UNDER SECTION 127(2) OF THE
ACT BY PRESTIGE PROPERTY SERVICES PTY
LIMITED FOR AN ORDER TO STOP OR PREVENT
INDUSTRIAL ACTION

MELBOURNE

9.32 AM, FRIDAY, 23 MARCH 2001

CONTINUED FROM 22.3.01

PN434

THE SENIOR DEPUTY PRESIDENT: Mr Wheelahan, I think you are to reply.

PN435

MR WHEELAHAN: Senior Deputy President, you did ask that we advise you on what happened last night. I just might get Mr Freebairn to update you.

PN436

THE SENIOR DEPUTY PRESIDENT: Yes, of course.

PN437

MR FREEBAIRN: Just very short, your Honour. As I am instructed, last evening the employees at both sites, at 8 Nicholson Street and 447 Collins Street, attended for work as normal.

PN438

THE SENIOR DEPUTY PRESIDENT: That is heartening.

PN439

MR FREEBAIRN: And that is as much information as we have, your Honour.

PN440

THE SENIOR DEPUTY PRESIDENT: Yes, they attended for work as normal and I take it they worked as normal?

PN441

MR FREEBAIRN: As I understand it, yes.

PN442

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Freebairn.

PN443

MR WHEELAHAN: In relation to Prestige's 127 order at 447 Collins and 8 Nicholson Street, I rely on the opening submissions that I made and will be very short and merely - after hearing the evidence of the respondent, I think it is clear that what we have here is not a stoppage. A stoppage is for a period and there is no evidence here that there was any stoppage for a set period. In the traditional sense, someone might have a stoppage for two hours or for a shift, but there is no evidence here at all of any resolution that there would ever be a return to work. Both witnesses were asked directly about that point and at no stage was there any resolution made that we would return to work, so in my submission what we have is an ongoing strike.

PN444

In addition to that, Mr Barwise's evidence is that there was certainly also no message ever conveyed to him that there would be a return to work. So what we have here is all the evidence is against what one would understand as a stoppage in the industrial sense. What we have is a strike with no resolution made that the workers would be returning to work and no message ever conveyed to Prestige that there would be a return to work. That is essentially the case regarding the notice and why we say it is not protected.

PN445

The secondary issue, of course, is then we go to the issue of discretion. Now, a couple of key aspects in relation to discretion. As I pointed out, Prestige has expended significant time and resources in attempting to resolve this matter. It has been here three times and in good faith has not pressed previous applications under section 127 which it could have done in that it has already been conceded that the strike action on 8 March was unprotected.

PN446

Significantly, after lengthy conciliation on the Wednesday of this week, as has already been noted on the transcript, the first point of the agreed statement was that the Commission would continue with the conciliation process and work will resume and continue in accordance with the current roster during that process. Despite that arising from the conciliation conference, the strike continued and once again there was no notice or resolution given that the workers were to return to work.

PN447

Now, in seeking this order - the argument of course with the strike for the last four evenings, of course, is that it is beyond the notice, but we have also included in our application and relied on the strike action of 8 March which has been conceded to be unprotected. Now, essentially it might be asked why should we - and I put this to start, we are here to resolve it, but now we seek the section 127 order. The Act sets up a scheme within which the parties are entitled to take certain action, heading towards the resolutions and certification of agreement.

PN448

As part of the Act the union is rightly entitled to take protected action and indeed we have never raised an issue with that. However, what we have here is the first instance of unprotected action on the 8th. We came here with a section 127 order, didn't press it then but sought to resolve it, and here we are again. What we say this time is that we had an ongoing strike and within the scheme of the Act we are entitled therefore to make an application under section 127, and given the matters I have pointed out, in our submission the Commission should exercise its discretion to grant that order.

PN449

Subsequent to such order being made, of course, and going to that discretion, the company is not asking for an oppressive order, it is only asking that unprotected action cease and there be a bulletin to that effect. It is not trying to deny the union from acting within the scheme set out in the Workplace Relations Act. Now, if I just go briefly to the submissions made by Ms Frenzel, some submissions were made about the genuineness of the bargaining. My point was I have no issue about whether they have been genuine in bargaining, my issue was with the fact of showing good faith in that we come here, we have agreed processes, despite that we have strike action, then we also have unprotected action on the 8th.

PN450

So my proposition about there being acts of bad faith was that the actions of the union are not within the scheme set out in the Workplace Relations Act. I merely say in relation to the issues of the executive not wanting to discuss the matter and so forth, there is no evidence of that, they were just submissions from the bar table. The key issue, as I say, really in relation to the submissions is that it really does come down to that it is not a stoppage, there has never been any resolution that they would return to work, it has simply just been an indefinite strike and there is simply no evidence that there was ever a resolution that they would return to work. So relying on those submissions, if there is anything further I can assist the Commission with.

PN451

THE SENIOR DEPUTY PRESIDENT: Yes, I am going to ask Ms Frenzel to tell me what happened last night and then I will call on you to reply to that. I would like to hear what you say about the exercise of my discretion in light of the fact that there appears to have been a resumption of work last night. I think it is appropriate that Ms Frenzel puts the union's perspective first, Mr Wheelahan.

PN452

MR WHEELAHAN: Certainly.

PN453

MS FRENZEL: Thank you, your Honour. Your Honour, the fact is that the cleaners did return to work last night, they worked normally, they reported for work at their normal time. The union explained in detail to the meetings, both at 8 Nicholson Street and 447 Collins, about the process before the Commission. The union also suggested very strongly to its members that they ought return to work, that really in terms of continuing with stoppage action at this particular point in time there was nothing to be gained by that and that really we had to move forward with the issue and with trying to reach an agreement with their employer.

PN454

I might stress that we did couch it in terms of at this point in time; the organisers were very careful to ensure that the cleaners understood very clearly what that mean, and I put it very strongly here just to ensure that everybody here also understands what that means. But having said that, the workers did resume work, they worked normally; as far as we are aware, there were no dramas with last night. If the Commission pleases.

PN455

THE SENIOR DEPUTY PRESIDENT: What, if any, is the position with the recommendations that were made in conciliation the other day? What is the union's attitude to that going forward or not going forward?

PN456

MS FRENZEL: We planned yesterday to have a meeting of delegates at midday and then take the recommendation to the members yesterday. That plan is now in place for today. We intend to have a meeting of delegates at midday and to report back to them further about this morning's proceedings and also to talk about where we go, and we intend to have meetings of members tonight with a view to making sure that each cleaner has a copy of the recommendation and that it is explained to them what the recommendation means for them. Your Honour, if you ask me to go any further than that, I don't have instructions to go any further than that.

PN457

THE SENIOR DEPUTY PRESIDENT: No, that suffices. I take it that the employees are going to turn up at the sites, ready to work this evening?

PN458

MS FRENZEL: Yes, your Honour. I mean, the evidence showed - very quickly, the evidence showed that they have turned up for work every day and they have had their uniforms on and they have been ready to work, and that won't change. They will attend at their appointed spots tonight and they will hear a report and the recommendation will be taken - I will start again. The cleaners will have the recommendation made available to them and the terms of the recommendation will be made completely aware to them. Thank you.

PN459

THE SENIOR DEPUTY PRESIDENT: Mr Wheelahan.

PN460

MR WHEELAHAN: Senior Deputy President, one concern I have is that the second witness for the respondent in his own evidence last night when you asked him whether he understood the first paragraph of the statement resulting from the conciliation conference on Wednesday, he answered that he did, yet despite that, in clear terms, they went on strike. I think a message needs to be sent to the union that they need to act within the scheme of the Act. Prestige, if you like, has let the first strike go without pressing its 127.

PN461

We are here now with an ongoing strike and I think it reasonable that despite assurance now, we have had assurances and commitments in the past, and what we say is they have been breached, and a message should be sent that the union within this industrial dispute and its members must act within the scheme of the Act, and the Act provides that protected action can be taken when they give the appropriate notices, etcetera, but what we say is there is unprotected action, and we seek that a message be sent that unprotected action is not to be condoned.

PN462

Now, once the order is granted, if you like, in our submission, combined with the union's commitment that they won't take - and I gather this is their commitment at this point in time as it is couched that they won't also take protected action, it does enable the parties to have a cooling off period. Now, my suggestion would be that the 127 order be granted because that is, as we said, limited to unprotected action and I don't think that should be condoned by the Commission, that the Commission set the matter down for a report back later next week. It would be a matter for the union whether they would there - in addition to the 127 order be granted - make a commitment that they won't participate in protected action, and we would call upon the union to make that commitment, and that would enable, if you like, a cooling off period.

PN463

I don't think it is appropriate that within the dispute if Prestige has to come here - this is the second 127 application - and indeed as part of the listing yesterday we have another matter with Prestige at the Arts Centre, and there will be - my instructions to date are there is unprotected action occurring there also. So I am concerned that if this just keeps rolling on and Prestige comes here with section 127 orders and never gets one, it is really saying to the union, you can take protected action, unprotected action, you can do what you like, and I don't think that is good enough within the scheme of the Act. Is there - - -

[9.46am]

PN464

THE SENIOR DEPUTY PRESIDENT: Does the company have a position in relation - whether I grant the order or don't grant the order - no, let me rephrase that. If I grant the order in accordance with your submission does the company have a position in relation to process, especially having regard to a process that was nutted out in conciliation, will the company go along with that process or where are we?

PN465

MR WHEELAHAN: The instructions at the present time are that they have withdrawn from that process. Hence, a report back later next week. What they see is, they have been faced with unprotected action, they have been faced with spending time and resources to reach an agreed process which is where the commitments haven't been held. So in short they've withdrawn from that process and they need time to assess their position and to consider a strategy for resolution.

PN466

You'll recall when I first appeared on behalf of the company at the Commission we did rise to our feet and say that we were here to resolve the matter and that ultimately of course is what has to happen and the company realises that but at this point in time they need some time with their order in place so that they can be assured that the Commission has sent a message that unprotected action is not acceptable and if the union give a commitment about protected action I have no doubt that would assist.

PN467

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Wheelahan. Is there anything else?

PN468

MS FRENZEL: Yes, your Honour, we are not about - two brief things. The first thing is that we will put your recommendation to our members as we said we would. We will also, however, put to our members that Mr Wheelahan's client is not prepared to agree to the terms of the recommendation which makes it a little bit academic in my view about having meetings of delegates going through that consultative process and in addition to that calling members tonight saying, "The Commission has made a recommendation; we're going to take you through this chapter and verse, we're going to make sure you really understand what's happening here. But understand this, whatever you decide doesn't matter because they're not going to concede to it in any event."

PN469

It doesn't put the recommendation on a good footing at all. That's the first point. The second point is there is no way, no way, that we are going to give any undertaking about not taking protected action. Mr Wheelahan's submissions go way beyond his application and they go way beyond the orders sought. But in any event, the undertaking on behalf of the LHMU about not taking protected action will not be forthcoming. If the Commission pleases.

PN470

MR WHEELAHAN: Could I just respond to that briefly?

PN471

THE SENIOR DEPUTY PRESIDENT: Yes, there does have to be one last - yes, Mr Wheelahan?

PN472

MR WHEELAHAN: I think I'm misinterpreted. Going beyond the application is looking at a resolution of the process and I just note that Ms Frenzel is now saying that the commitments made in the notice should be abided by by the company and that's put very forcefully, that the obvious fact is that they themselves didn't abide by it on the day it was made with the strike action.

PN473

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. I'll adjourn for 10 minutes and I'll announce a decision.

SHORT ADJOURNMENT [9.50am]

RESUMED [10.00am]

PN474

THE SENIOR DEPUTY PRESIDENT: Had there not been a resumption of work last night I would have made an order under section 127 today. However, whilst the failure of the employees concerned to work on Wednesday night derailed the process that had been nutted out between the parties on Wednesday the union and the employees concerned have shown good faith in my view in securing the return to work last night and agreeing to put the recommendation that I made on Wednesday, a recommendation I might add that was nutted out in consultation with the parties that the union, by agreeing to put that to the delegates and employees today is also manifesting an indication of good faith.

PN475

The company accepts that there is a need to go forward and that the matters that are at issue between the parties need to be resolved. It seems to me that the best way to secure that and to move forward is by reverting to the process that was worked out between us last Wednesday. To move forward will be best facilitated, it seems to me, if the company can inform the union before the delegates' meetings which are schedule for - what time, Ms Frenzel?

PN476

MS FRENZEL: 12 noon, your Honour.

PN477

THE SENIOR DEPUTY PRESIDENT: Before 12 noon, that if the union is prepared to go ahead with the process that was nutted out the company will also be prepared to do so. I can indicate to the parties that if the company does indicate to the union that that process will be followed and if there is no return to work as normal this evening, and I take it, Ms Frenzel, I've assumed that no work is performed on a weekend at these sites.

PN478

MS FRENZEL: That's my instructions, yes, your Honour.

PN479

THE SENIOR DEPUTY PRESIDENT: Yes. As I was saying, if the company does indicate to the union that it is prepared to go on with the process and there is no return to work as normal this evening, unless I'm persuaded to the contrary on Monday morning and it would take a lot of persuasion, I will make the order at 9 am. In the circumstances I think the best thing that I can do is adjourn these proceedings to 9 am on Monday and I do so. Before I rise, can I indicate that the application made by the union under section 127 in relation to the Arts Centre matter will be listed for 4.15 on Monday afternoon. Adjourn the Court.

ADJOURNED UNTIL MONDAY, 26 MARCH 2001 [10.05am]