C3998/600, Transcript of Proceedings [2001] AIRCTrans 55 (22 February 2001)

AUSCRIPT PTY LTD
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TRANSCRIPT OF PROCEEDINGS


O/N 5823

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER LEWIN

C NO 39986 OF 2000

AUSTRALIAN MUNICIPAL, ADMINISTRATIVE,
CLERICAL AND SERVICES UNION

AND

AGL ELECTRICITY LIMITED

NOTIFICATION PURSUANT TO SECTION 99 OF THE ACT
OF AN INDUSTRIAL DISPUTE RE BREACHES OF CLAUSES
OF THE AGL ELECTRICITY LTD ENTERPRISE
AGREEMENT 1999

MELBOURNE

11.34 AM, WEDNESDAY, 7 FEBRUARY 2001

PN1

MR M. RIZZO: I appear on behalf of the ASU.

PN2

MR D. RILEY: I appear on behalf of the CEPU.

PN3

MR W. TREGLOWN: I appear for AGL, with MR MILES and MR DEBORG.

PN4

THE COMMISSIONER: Thank you. Mr Rizzo.

PN5

MR RIZZO: Thank you, Commissioner. Commissioner, this is an issue that concerns electrical inspectors who are covered by both my organisation and the CEPU. It involves a restructure of the electrical inspectors, and in fact it is more than a restructure, it is a combination of a restructure and getting rid of the electrical inspection function per se. There are a number of people affected by this, and the reason - and I am conscious, Commissioner, of your position taken in relation to the dispute settling procedure, particularly step 4, the issue of mediation. I can address that quickly, Commissioner, by saying this: these jobs were advertised, I think, on 18 December last and they were to close around 22 December, which only allowed a four or five days' period for people to apply.

PN6

Now, let me clarify the jobs. There are existing six or seven electrical inspectors at the moment, and all that has been advertised is two jobs. So in fact only two jobs would be advertised and something like four people obviously would miss out on jobs. The reason why this came to the Commission quickly, Commissioner, rather than going through the exact details of the dispute procedure, was simply that very tight time-line that the company had imposed upon its work-force and therefore upon us as organisations. And also it was the Christmas period. I think it was on the last day of - working day of last year.

PN7

And we found that, given that they advertised these jobs and given that some people would get jobs and some would not, and certainly we had not discussed with the company nor agreed with the company what the terms of the jobs would be, the two jobs that had been advertised. That is why the notice was sent to the Commission to try and get a hearing before Christmas or, at the very least, in the new year. As we know, Commissioner Holmes has been ill. This was originally listed for 16 January, I think, from memory, and that has been put off, I think, to today's date before yourself.

PN8

That is the reasoning for the dispute notification, Commissioner, as opposed to following the mediation process. We have had meetings - I need to inform the Commission that we have had meetings in the new year on both 16 January and on 1 February, and 1 February was only late last week. We were given the undertaking by the company that we would receive a letter on Monday or Tuesday of this week outlining a possible solution to the problem. I had a discussion with Mr Miles this morning in relation to this dispute today, and the letter. Mr Miles informs me that things have changed somewhat and the letter was not forthcoming, but the company was prepared to engage in further discussions with the unions.

PN9

So, Commissioner, can I suggest rather than me making a full submission about the issue at this stage, I am happy and I believe the CEPU is also happy to go into private discussion to look at the new things that have occurred between 1 February and today, and see if we cannot advance this dispute - sorry, advance this negotiation to resolution. But I do reserve the right, Commissioner, to make a full submission to you if those negotiations are not fruitful. Because what the company proposes also in our view definitely breaches about three or four clauses in the current EBA. If the Commission pleases.

PN10

THE COMMISSIONER: Can I just understand this correctly; these employees are still employed by the company and they have not received any notification of the termination of their employment?

PN11

MR RIZZO: No, no, they have not, Commissioner. Our expectation - no, there is no expectation of termination in this case. An expectation is that two people will fill the advertised jobs and the other three or four people would be redeployed within the company.

PN12

THE COMMISSIONER: Well where is that up to?

PN13

MR RIZZO: Where it is up to, Commissioner, is that we are having an argument on three issues: one, the salary and conditions attached to the two advertised jobs, that is still in dispute, and I understand that is the issue that has changed dramatically in the last few days. There is the issue of private use of the vehicles, both for the people who are getting the jobs and for the people who are not getting the jobs. And without going into great detail, Commissioner, there is an agreement between these employees and the company that they do have full private use of a vehicle. And the company is equivocating on whether they are going to maintain that condition or not.

PN14

And there has been some discussion whether compensation would be a factor, and the unions have discussed and considered that. And also what is in contention, apart from the salary and the jobs and the vehicles, I think - of course, Commissioner, the status of the redeployment and what sort of redeployment options are available to people. And we have asked the company to give us some clear idea, or at least approximating a clear idea of what the redeployment prospects are, and at this point I must say to you that neither of the unions are clear on this, but we are prepared to canvass with the company, more so on defining redeployment of the people.

PN15

And sub-issues with the redeployment are, for example, will they maintain their current terms and conditions of employment? And certainly calls for the EBA more than suggested that should be the case, but I think it is fair to say that the company is sort of equivocating on that matter as well.

PN16

THE COMMISSIONER: Have you actually expressed your concerns in relation to these matters in a letter or anything of that nature?

PN17

MR RIZZO: Not in writing, Commissioner, but certainly the company - we have had discussions with the company before Christmas and, as I indicated earlier, we have had two meetings recently.

PN18

THE COMMISSIONER: Yes, but the specification of what the issues are and what solutions you are actually seeking, it has not been reduced to writing; it has all been verbal.

PN19

MR RIZZO: I has not been reduced to writing, Commissioner, but the parties are well aware of what the issues are.

PN20

THE COMMISSIONER: Yes.

PN21

MR RIZZO: And they are not very far removed from what I have just expressed.

PN22

THE COMMISSIONER: Yes, all right. And what you want to do is have further discussions?

PN23

MR RIZZO: Well, according to what Mr Miles has told me, things have changed a bit. I am happy to have further discussions. And, as I say, Mr Riley and I were expecting to get a letter clarifying the company's position on Monday or Tuesday, before this hearing. And if we had had that letter, I would have come to you and said, look, we are up to this point and I do not think we need a hearing today, we will just continue on.

PN24

THE COMMISSIONER: Well, I must say that is what is on my mind, as to whether or not this matter is sufficiently developed for referral to the Commission under step 5.

PN25

MR RIZZO: I would - yes, Commissioner, I hear what you are saying and I think you have heard my explanation as to why it has come to you quickly, because of the time-lines.

PN26

THE COMMISSIONER: Well, what I am concerned about is that you are still down at around step 3, and not only that, those discussions have not actually led to any documentation of the positions of the parties as yet, and the isolation of any gap between them over the issues in question.

PN27

MR RIZZO: I would agree with you, Commissioner, but I can only repeat that we were expecting the company's proposal in writing in the last couple of days.

PN28

THE COMMISSIONER: Well, that is fair enough.

PN29

MR RIZZO: And I am happy that the company does give us something in writing in the next couple of days after further discussion, and I am happy for my organisation, and I expect my colleagues to reply in kind, and if issues are still outstanding then perhaps a report-back meeting can be - - -

PN30

THE COMMISSIONER: Well, why wouldn't you take it to mediation then? I mean, it is in there. You may well have some second thoughts about the validity or the value, I should say, of step 4 of the agreement, and there does not seem to be any great enthusiasm for it on either side. Although it was requested but, I mean, it is not as if I have not seen this sort of dispute settlement clause before. You know, it is not only in this agreement; it is in other agreements, and there seems to be a reluctance on the part of parties to dispute settlement agreements like this in this industry to actually give effect to what it is they have agreed to do in relation to this mediation process.

PN31

But if you put yourself in the position of the Commission, we certified these agreements. One of the reasons why they were certified was because they meet that requirement of legislation that they have a dispute settlement procedure in them. Now, it is completely inconsistent with our activities in certifying agreements that contain these sorts of clauses to go around doing things which basically undermine them.

PN32

MR RIZZO: Yes.

PN33

THE COMMISSIONER: And to say the parties should ignore this step or that step. I mean, if it is permissible to ignore step 4 as a matter of policy, why isn't it permissible to ignore any of the other steps? And isn't the rationale of the dispute settlement procedures division into a series of steps that they are each meant to deal with specific situations and in what you might call an order, perhaps an ascending order or a linear order, and that the parties have actually agreed that that orderly process is a necessary feature of the industrial relationship? I mean, it is not anything to do with my personal views about the desirability of step 4 - - -

PN34

MR RIZZO: No, I think it is just reflecting what is in the document.

PN35

THE COMMISSIONER: Yes.

PN36

MR RIZZO: I understand. You are reflecting what is in the document. As I have explained to you, I suppose technically, skipping some steps, it was an incredibly tight time-line. Our members are ringing us and saying, "I have got three or four days to apply for this. I am not even sure what the terms and conditions of this job are. What is being done?" We approached the company about it and they say, yes, the advertisement has gone out. People have got to this date to apply. If they do not apply then, you know, the view is that you become redeployed.

PN37

THE COMMISSIONER: Yes. Once again, it is the same situation that Mr Treglown found himself in. I am not asking - I am not making a judgment about the union's behaviour or the company's behaviour or anything of that sort. I am just making an observation as a matter of discussion about the operation of the dispute settlement procedure. I do not have any views about what is good and bad about it at all. It is just there; it is just the way it is, it has been certified. I accept that. The parties created it; the Commission did not, and it is not for the Commission to criticise their decision to adopt this particular dispute settlement procedure.

PN38

But I have got a proceeding before me now, and the logical question that I start with is, well, where is it up to in this dispute settlement procedure? I review what has happened. And a part of what you are telling me in the history of this matter is the process of, you know, what has happened in steps 1, 2 and 3, which have so far occurred. And what I am saying is you are still at step 3. You probably need to develop that a bit more directly between you. That is not the time for the Commission to be involved. It is clear from the dispute settlement procedure that that is not the time for Commission involvement.

PN39

That is the time for the parties' face to face involvement until they get to the point where they have exhausted that process and it is unresolved. That is what is on my mind.

PN40

MR RIZZO: Yes, Commissioner. Well, I can only make two points; I do not disagree with what you are saying, because you are simply reflecting what is in the agreement. And secondly, my organisation is more than happy to have further discussions with the company and, if necessary, reduce things to writing. But in the meantime, it would be our view, as I think is reflected in the agreement, that the status quo should continue and these jobs should be put on hold until the discussions have been finalised. If the Commission pleases.

PN41

THE COMMISSIONER: Right. Mr Riley.

PN42

MR RILEY: If the Commission pleases, the ETU has actually notified the company in writing of a dispute. We were supporting the ASUs I suppose verbal notification. We are quite happy, I suppose, Commissioner, to go to step 4 and refer this matter back to a mediator.

PN43

THE COMMISSIONER: Well, what I am really suggesting, I should say, is not step 4; it is step 3. I think you need to - - -

PN44

MR RILEY: Well, we are happy to go into further talks, Commissioner, as long as we get commitment from the company that the status quo remains and we go through that process, and we are happy to go back to step 3 and hopefully we can resolve it there. If the Commission pleases.

PN45

THE COMMISSIONER: All right, fine, thank you. Mr Treglown.

PN46

MR TREGLOWN: I really do not have much to add, Mr Commissioner. The processes are not being followed. This was notified before we even had a meeting; I mean, nothing has been followed in this.

PN47

THE COMMISSIONER: Yes. You were in discussions. You were in those first three steps.

PN48

MR TREGLOWN: Yes.

PN49

THE COMMISSIONER: And I take it you are observing the status quo provisions, from what I hear?

PN50

MR TREGLOWN: Indeed.

PN51

THE COMMISSIONER: Yes, all right. I do not think this matter is appropriately before me. It is not at the stage in the dispute settlement procedure that it should be referred to the Commission, because I cannot be satisfied that it is unresolved at the earlier steps. One you actually develop it to the point where you have clearly identified what it is that is being sought on behalf of the employees concerned, and what the declared position of the company is, through steps 1 to 3, and the gap between the parties in relation to the substantial issues of disagreement between them is clear, I am hard-pressed to understand why it should not be referred to mediation.

PN52

I suspect that what needs to be done is the process needs to be accelerated. I apologise for the delay in the matter being dealt with in the Commission; that is unavoidable because of Commissioner Holmes' illness. In his absence, there are only two members of the panel to cater for the industrial relations issues affecting this and other industries, numerous other industries, throughout Victoria. And one of those members of course is the leader of the panel who has national responsibilities as well. So that is unavoidable, but I do think it needs to go back into the earlier stages. What I would recommend to the parties, however, is that that be accelerated, that as soon as possible the documentation of the issues in dispute be completed and the positions of the parties respectively set out, and if necessary the dispute settlement be followed, and if it cannot be resolved by mediation that it be referred to the Commission.

PN53

The last time I asked a party to one of these dispute settlement procedures about the mediation aspect, I asked did they have a panel of mediators and they said they did not. Yet I think there is meant to be one, isn't there, from an agreed list of mediators? Does such a thing exist?

PN54

MR TREGLOWN: No.

PN55

THE COMMISSIONER: No, it does not. Can I recommend that you do that. You cannot give effect to this dispute settlement procedure if you do not have that, because you will waste so much time sort of rummaging around every time a dispute comes up, and what is happening, it seems to me, with all due respect, and I make no judgment or criticism about it, is that the step is just being ignored. Now, if you have all come to the view that it does not work, you do not want it, or whatever it is, why not make an application for variation of the agreement and cut it out? You see, the scheme of the Act is that it is up to you to actually work out what the dispute settlement procedure should be, and that you should follow them by virtue of the fact that you have agreed upon them.

PN56

That is why, from the Commission's perspective, it is appropriate, unless there is some sort of over-arching reason why everything should come to the Commission sort of instantly, there is a lot to be said for the idea that applying the dispute settlement procedure will actually assist in the resolution of the disputes. I mean, it is very easy to fall into a view that it does not actually add anything. Now, I am mindful of what Mr Treglown has said and what is provided in note A. I appreciate that. But what does it mean? Does it mean that every time anything arises here that you - you know, say for instance in the case of the ASUs notification, that the ASU just simply notifies the Commission? And that I accept that and commence to deal with it, notwithstanding the fact that the company's perspective is that it really has not been dealt with in accordance with steps 1 to 3.

PN57

Can I please have a copy of what it is that you exchange as a result of the discussions that you are going to have and the documentation of the issues in dispute. I appreciate that there is a potential there for matters in dispute not to be resolved and for it to be referred to the Commission. I have difficulty with relisting these matters for report-back in the future, because I will be on leave shortly. What I suggest is that I refer them to Commissioner Holmes from whence they came. I will give him a debrief on what happened today, and I will suggest that the parties contact his office in relation to report-back in connection with both of these disputes. Thank you, these proceedings are adjourned.

ADJOURNED INDEFINITELY [11.53am]