C2001/1874, Transcript of Proceedings [2001] AIRCTrans 891 (17 May 2001)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER CARGILL

C2001/1874

APPLICATION PURSUANT TO SECTION
127(2) OF THE ACT BY PRINTING
INDUSTRIES ASSOCIATION OF
AUSTRALIA TO STOP OR PREVENT
INDUSTRIAL ACTION

SYDNEY

10.30 AM, FRIDAY, 27 APRIL 2001

Continued from 10/4/01

PN151

THE COMMISSIONER: Are there any change in appearance since the last occasion, I think?

PN152

MR J. TAMPLIN: On the last occasion, Commissioner, Mr Abrahams appeared on behalf of our organisation. I now replace him for this matter.

PN153

THE COMMISSIONER: Thank you, Mr Tamplin, I think, Mr West, it's probably still the same on your side, is it, or I think you may have lost someone is that it?

PN154

MR TAMPLIN: We lost Bill Motto and we've got Noel Marshall

PN155

THE COMMISSIONER: Right. Yes, Mr Tamplin.

PN156

MR TAMPLIN: Thank you, Commissioner. Commissioner, the last occasion you issued a decision regarding applying for an application by the Printing Industries Association regarding section 127 orders pursuant to the Workplace Relations Act. Part of that decision facilitated the union some latitude to confirm that it had lifted the bans and limitations that were in place and would return to work as it stood. We received communication from Mark West dated the 18th of the 4th 2001 and I note it is addressed to you as well. It's also addressed to Mr Abrahams of our office and the Manager of William Brooks & Co and Jason Lispey of William Brooks & Co. It states, "Please find attached a resolution that was passed by members employed at William Brooks on April 17 and 18 2001." I believe it conforms with the requirements of Commissioner Cargill's decision of April 11 2001. The resolution is to take effect from the beginning of afternoon shift on Thursday, April the 18th, 2001 and it is signed by Mr Mark West. Do you have a copy of that?

PN157

THE COMMISSIONER: Yes, I do Mr Tamplin and a copy of the resolution.

PN158

MR TAMPLIN: For the record and because of the seriousness of the matter I would seek the liberty to read the words of the resolution into transcript:

PN159

This meeting of William Brooks (chuckle) has considered the decision of Commissioner Cargill of the 11th of the 4th 2001 and does not agree with the logic or conclusions or that industrial action is being taken. However, this meeting rescinds resolutions 1, 2 and 3 of the chapel meeting held on the 3rd of the 4th 2001, effective from 2 pm Thursday. We further resolve to lift all bans to the extent they exist to allow discussions to continue on outstanding issues. We note that the Commission's decision does not allow the company to force employees to work outside their normal classifications without mutual agreement, as outlined in clause 13A of the enterprise agreement.

PN160

The company then inquired of its employees who would not perform their full range of duties. I then wrote to you in a letter dated 20 April 2001 advising that four employees had refused to perform their work as per a lawful direction to complete their tasks. In fact, these four employees in general were printing machinists who had refused to go to the end of the printing press and assist or to load the paper onto the press. That task is a task taught to them in their apprenticeship. It is a task well within their skill range and is a task that they have performed before. We say that is industrial action.

PN161

The union relies upon a term of the agreement, clause 13, Site Flexibility. I do not have one with me, Commissioner. As I was leaving my office I said to myself the last thing I must do is forget the copy of the agreement, forget the copy of the 1977 award and forget the copy of the current award and consequently the last thing I did on leaving the office was to forget them. I apologise. It says in Site Flexibility:

PN162

In accordance with current provisions of the Graphic Arts Award 1977, the following will be implemented.

PN163

In particular, the wording is very important. In particular, schedule D of the Graphic Arts Award shall apply. Now, schedule D was the 4 per cent second tier matter. The flexibilities that were traded off were the tradesman would move from machine to machine but people would perform a wider range of duties but the start times and finish times could be varied. It was an extensive array of Site Flexibility under the term, "work organisation", under the heading "work organisation".

PN164

The union then turns to Site Flexibility in 13A. This means that any employee shall perform any task subject only to the limitation of competence and safety within award classifications. All existing work practices will be reviewed by the consultative committee. It then says in the first asterisk point:

PN165

This flexibility will include the following: Employees working in any department on duties for which they have been trained according to award classifications", eg, General hand would move between printing and binding as required on a temporary basis.

PN166

It then says:

PN167

Tradespeople may relieve and the term is may relieve on any production line when required by mutual agreement"

PN168

It does not mean that demarcations are now put into place where a printing machinist will and can use that clause and that wording to abstain or refuse to follow a direction to perform work and load the printing press with paper. The term is, "may relieve", that is, if a person is on a meal break somewhere else the trades person may be moved over to do that work by mutual agreement. It does not mean an all-encompassing demarcation of work. In fact, to take that view of the wording of that clause is in contradiction to clause 7, "Long term Objectives and Commitments of the Parties". Clause 8, "Measures to achieve Gains in Productivity, Efficiency and Flexibility".

PN169

While schedule D of the 1977 award applies in relation to that clause, the award applies to employees who have their classifications set out in a 1977 award. The 1977 award is not the underpinning award of that agreement, the 2000 award is, and the 2000 award has in clause 2.2. work organisation under enterprise flexibility on page 9:

PN170

An employer may direct an employee to carry out such duties as are within the limits of the employees skill, competence and training, providing that such duties are not designed to promote deskilling.

PN171

In 2.2.1(a):

PN172

Any direction issued by the employer pursuant to 2.2.1 must be consistent with the employer's responsibilities to provide a safe and healthy working environment.

PN173

Now the employees are going to be given a lawful direction to complete those tasks. If they refuse to complete those tasks that will be in our view industrial action. That means that the guarantees of the union of having lifted the industrial action and therefore avoided in theory or in practice the application of the section 127 orders being granted now has or attempts to have a second bite of the cherry and through a ruse which is to keep in place some form of industrial action.

PN174

Given that it is only four, Commissioner, we sought to move into conference with you to try to make sure that the employees concerned and the union and their representatives understood the ramifications if employees in question, the four, do not perform their full range of tasks. I have nothing further to add in our opening submissions, Commissioner, other than to verify the importance and the effect of what these employees are doing and perpetrating. If the Commission pleases.

PN175

THE COMMISSIONER: Thank you, Mr Tamplin. Mr West?

PN176

MR WEST: The position of the union is as outlined in our correspondence to the Commission and the company on the 18th. We were obviously not happy with the decision but we believe it abided by its requirements and rescinded the resolutions that caused the problem in the first place. We believe that by so doing we removed any argument that industrial action could be taking place. Whereas previously there had been a Chapel decision that people would not work outside of their classifications, that decision was rescinded and since then as Mr Tamplin has implied, there have been a number of people doing the real stand work in particular and some have not.

PN177

The Chapel has taken no action against those who have been doing the work and as we said in our resolution of the 17th and 18th we do not believe that the decision took away the rights that are specifically given to people within the EBA. I might just say in passing that there are a number of printers at William Brooks who have never done this work or who have done it conditionally and the clauses that I'm going to refer to in the EBA have been there for a period of time and have applied over several agreements.

PN178

Mr Tamplin refers to the 1977 award, the flexibility clauses and the 2000 award, but we cannot see how these would override a specific right contained within the EB.

PN179

THE COMMISSIONER: Mr West, I take the point that the Chapel didn't agree with my decision but there is other action the Chapel can take about that. I'm not going to change my decision just because they don't agree with it. It's been made. Did they indicate whether they had looked at or whether you had that I actually concluded that the ban did amount to industrial action?

PN180

MR WEST: Yes, they did, Commissioner. We rescinded the resolution.

PN181

THE COMMISSIONER: Yes, I've got no difficulty that the Chapel has but the application for the orders was also against individual employees and just because the Chapel has lifted a ban employees can still, if they maintain a ban, can still have orders issued against them individually.

PN182

MR WEST: I understand that, Commissioner, but in that section of your decision where you were dealing with the award classifications section, our position is that the agreement gives employees certain rights.

PN183

THE COMMISSIONER: I've got no difficulty that that is what your position is and the employer's position is different, I don't have a difficulty with that. But what I concluded there was that under the legislation, industrial action includes having a ban on working as is the usual custom or customer practice, I can't remember the exact words, but the definition of industrial action in section 4.

PN184

MR TAMPLIN: I can pass over a copy to my colleague so that he can follow it.

PN185

THE COMMISSIONER: It's all right, I think Mr West has probably seen it before. I can't remember the exact words. It's the performance of work in a manner different from that in which it is customarily performed.

PN186

MR WEST: Yes, Commissioner.

PN187

THE COMMISSIONER: That's where that ban or the not working becomes industrial action.

PN188

MR WEST: The Chapel is not enforcing or seeking to enforce a decision that people shouldn't do that work. There are a number of people who are saying they don't agree to do it and that is a minority of the printers.

PN189

THE COMMISSIONER: I think that is why Mr Tamplin has acknowledged that.

PN190

MR WEST: But further, Commissioner, I would say that most of those people have never done the work, they have been asked by the company and have not, prior to their decision. They have specific protections within the agreement that say in black and white that such work may be done by mutual agreement and also refers to people working within classifications. Where there has been agreement by the company as in the EB, that people have these rights, I don't see how that can be seen as industrial action. I'm not trying to revisit the matters that were dealt with at the last hearing. On the question of industrial action, Commissioner, at a meeting at the plant on 24 April, I would like to submit this document.

PN191

THE COMMISSIONER: I think we previously got up to AMWU2, is that right, Mr West, on the previous occasions, so I'll mark it AMWU3.

EXHIBIT #AMWU3 MINUTES OF MEETING OF 24/04/2001

PN192

MR WEST: That's the minutes of the meeting that occurred out there on the 24th as I said and I would refer you to the second dot point under Commission Hearing, from Peter Hutt:

PN193

Since industrial action appears to be fully lifted I intend to cancel this hearing at 4 pm today.

PN194

So at that stage, in the company's opinion, there was no industrial action taking place.

PN195

MR TAMPLIN: I object to that.

PN196

THE COMMISSIONER: Just a minute, Mr Tamplin. Presumably you have read further on though about the next two dot points.

PN197

MR WEST: Yes. If the company has a problem with how the EB works, we are more than happy to go through the dispute settlement procedure with them.

PN198

THE COMMISSIONER: What about Mr Tamplin's suggestion that we go into conference.

PN199

MR WEST: Yes, I am pleased with that.

PN200

THE COMMISSIONER: Is there anything else you want to put on the records?

PN201

MR WEST: No, there isn't.

PN202

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

PN203

MR TAMPLIN: I will bite my tongue at the moment.

PN204

THE COMMISSIONER: That's very good. Does that mean you don't want to put anything more on the record?

PN205

MR TAMPLIN: No, not at this stage.

PN206

THE COMMISSIONER: Right. In that case we can adjourn and go into private conference.

INTO PRIVATE CONFERENCE [10.54am]

NO FURTHER PROCEEDINGS RECORDED

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #AMWU3 MINUTES OF MEETING OF 24/04/2001 PN192