C2002/1361, Transcript of Proceedings [2002] AIRCTrans 1025 (2 April 2002)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER SMITH

C2002/1361

CPSU-PSU GROUP, TECHNICAL,
COMMUNICATIONS AND AVIATION
SECTION

and

AOL AUSTRALIA ONLINE

Notification pursuant to Section 99 of the Act
of a dispute re notification of an industrial dispute

SYDNEY

THURSDAY, 14 MARCH 2002

PN1

THE COMMISSIONER: I will take appearances please.

PN2

MR JONES: If the Commissioner pleases, I appear for the CPSU, with me I have Mr Ellis, initial M and Mr Rich, initial A.

PN3

THE COMMISSIONER: Thank you Mr Jones.

PN4

MR TAMPLIN: If the Commission pleases I appear on behalf of AOL OnLine Australia Pty Limited and with me is Ms Sharlene Tan, human resources officer for the company.

PN5

THE COMMISSIONER: Thank you Mr Tamplin, Mr Jones?

PN6

MR JONES: Thank you Commissioner. Whilst this matter was notified as a dispute regarding right of entry, discussions between the party immediately prior to coming on before you indicate that it could be more properly characterised as a dispute over the application of the telecommunications industry dispute finding interim award, an award made by yourself earlier this year and the context of that dispute is over right of entry. If I can put the facts as these, Mr Tamplin may have something to say about these facts if they need to be tested then I can call evidence to attest to it.

PN7

The legal facts are that on 31 August 2001 a finding of dispute was recorded in writing by yourself in print PR908060. The respondent to, or a party to, that finding of dispute was AOL Australia Pty Ltd. The Commission subsequently went on to make an award and that award includes Australia OnLine Pty Ltd as a respondent to that award on the one hand and CPSU on the other.

PN8

MR TAMPLIN: May I just clarify the award?

PN9

MR JONES: The award, Mr Tamplin - I will clarify the award. The award that I referred to is one made by yourself, Commissioner, on the 1 November called the Telecommunications Industry Avoidance of Disputes (Interim) Award 2001. I am sorry I do not have the award.

PN10

THE COMMISSIONER: I have a copy.

PN11

MR JONES: The award number I show to Mr Tamplin.

PN12

MR TAMPLIN: I have copies.

PN13

MR JONES: The next relevant fact is that on the 28 February a letter was sent by Mr Marios Ellis to the occupiers of the premises Australia OnLine Pty Limited seeking a right to exercise the power of right of entry pursuant with section 285C of the Workplace Relations Act. My friend is just getting a copy of that letter for me. If it is necessary to put this in to evidence we are able to do that. In the letter dated 28 February to Mr Nigel Grange, who we understand is the general manager of member services of Australia OnLine and the occupier of the premises at Zenith Centre at 821 Pacific Highway in Chatswood. Mr Ellis advises that he is an organiser of the CPSU and that he seeks to exercise the powers provided to a permit holder pursuant to section 285C of the act.

PN14

In response to that letter we have received a communication by way of email from a Mr, or Mrs, I am not sure - Miss, a Miss Lyndall Jones to Mr Ellis alleging that there are no employees of Australia OnLine Pty Limited to which the CPSU would be entitled to visit I think is the crux of the letter because in the letter they are claiming that the CPSU does not have coverage of any employees and therefore could not exercise a right of entry pursuant to that section of the act. We understand that to be the crux of the objection.

PN15

Commissioner, in lengthy proceedings before you leading up to your finding of dispute in this matter, a Mr David Leek, who was at that time, I am not aware if he is still employed, but at that time was employed as a member services director of AOL deposed a statement on 7 March 2001, I have a copy of that.

PN16

THE COMMISSIONER: It was attached to Mr Tamplin's letter I think.

PN17

MR JONES: Yes, the Commissioner has a copy of that?

PN18

THE COMMISSIONER: Yes, I have a copy of that.

PN19

MR JONES: Relevantly, at paragraph 13 of that statement - - -

PN20

THE COMMISSIONER: Yes.

PN21

MR JONES: Mr Leek deposes to the fact that the company employees 10 employees in operations, 13 employees in marketing, 23 employees in content and production, 10 employees in finance, 107 employees of member services, 2 in human resources and 1 in legal affairs. It is the submission of the CPSU that each and all of those employees are eligible to be members of the CPSU pursuant to the industry and eligibility rules of our organisation. On the basis of those submissions, Commissioner, we assert those as facts, both legal and relevant facts, we are unaware at this stage whether Mr Tamplin wishes to put us to the test or cross-examine any of those assertions of fact. If he does we are willing to have a witness sworn up and give evidence to that effect and have that evidence cross-examined.

PN22

On the basis of that we think that there is ample power within the Commission pursuant to the dispute settlement procedures in the interim award to settle the dispute over the application of this award. The settlement of the dispute could include, and should include in our respectful submission, a finding that the employees referred to in Mr Leek's statement are eligible to be enrolled as members of the CPSU.

PN23

THE COMMISSIONER: Do I have to go that far? The dispute finding has been made hasn't it?

PN24

MR JONES: In our submission, yes. We understand the objection taken - - -

PN25

THE COMMISSIONER: If there were no eligible persons, if there are no persons eligible, a dispute finding would not have been made?

PN26

MR JONES: That is our submission, Commissioner, yes.

PN27

THE COMMISSIONER: The question of the extent of that eligibility might be an issue between the parties.

PN28

MR JONES: Yes indeed and we are unsure of whether the employers objection are there no employees at that particular site which we have sought to exercise a right. We assume that there are employees at that particular site who are eligible to join the union. But, the Commissioner is right, you have made a finding of the dispute in general terms and to that extent your right of assistance in settling this dispute and to, if necessary, exercise your general powers arising out of the dispute, settlement power, our power or the power pursuant to section 285G of the act which deals with application of the right of entry amongst other provisions of the act, if the Commissioner pleases.

PN29

THE COMMISSIONER: Thank you, Mr Jones, Mr Tamplin?

PN30

MR TAMPLIN: Commissioner, the notice of intent to enter refers specifically to clause 285(c)(1) which states:

PN31

Work is being carried on to which an award applies that is binding on the organisation ...(reads)... of that organisation.

PN32

The issue as to the coverage of employees of AOL is one matter where submissions have been put before you previously. The award that the union appears to rely upon has several what we would submit are exclusions to it in that 4.1 coverage refers to the history of it and it also states:

PN33

In making a dispute finding the Commission left the resolution and the scope of any award to a later stage in the proceedings.

PN34

4.2:

PN35

Accordingly, this award is made without prejudice to the rights of any party concerning the scope of any subsequent award ...(reads)... and any extensions.

PN36

4.3:

PN37

This award applies to all employees of the employers listed in schedule A to this award carrying out work in the telecommunications industry ...(reads)... not eligible to cover.

PN38

One, we contest that we are in the telecommunications industry and, two, we contest that there are no employees that can be covered by or fall within the eligibility rule and the industry calling of the CPSU.

PN39

THE COMMISSIONER: Hasn't that argument been run, Mr Tamplin?

PN40

MR TAMPLIN: We await a decision.

PN41

THE COMMISSIONER: A decision was given and a finding of dispute was made.

PN42

MR TAMPLIN: Sir, I may stand corrected but the finding of dispute unless there's been a decision on the AOL matter which I'm unaware of - - -

PN43

THE COMMISSIONER: AOL has found to be in dispute with the union hasn't it?

PN44

MR TAMPLIN: That was at the very commencement.

PN45

THE COMMISSIONER: Yes.

PN46

MR TAMPLIN: But that finding of dispute is limited to the terms of the award that's binding on them which you have put into place which has those exclusions in it and without prejudice to the rights of the parties.

PN47

THE COMMISSIONER: Now, the rights of the parties are to argue the scope of an award coverage and the exclusion also says whether or not employees who are not eligible to be covered of the CPSU or persons who are eligible to be covered aren't covered by it but that might go to the scope. For example, it is hotly contested between the parties as to how far up, if I can put it that way, the CPSU covers; do they go up to the managing director, do they go to the engineer, to the degree qualified. Where does it end? That's the sort of debate that has been taking place. If your proposition is right the dispute finding in the first instance should never be made.

PN48

MR TAMPLIN: That's what it seems to say in 4.3:

PN49

This award applies to all employees of the employers listed in schedule A to this award carrying out work in the telecommunications industry except for -

PN50

and we have argued consistently that we are not in the telecommunications industry.

PN51

THE COMMISSIONER: But you've had a dispute found against you?

PN52

MR TAMPLIN: Yes, I appreciate that.

PN53

THE COMMISSIONER: So that argument has failed hasn't it, on its face?

PN54

MR TAMPLIN: I don't think we've got an argument. I think we accepted the process that had gone on that the documents had been served and we had denied the claim. As to whether we were in the industry or not we reserved our right to dispute that and whether we fell within the eligibility rule in the industry calling of the CPSU is what Mr Leek and all the evidence we put we say goes to.

PN55

THE COMMISSIONER: But wasn't that determined by the finding? Wasn't that argument lost? You only have to have one person that might be eligible to have the finding made.

PN56

MR TAMPLIN: We did not raise anything against the finding. We accepted the log of claims had been served and we accepted that a denial had been made.

PN57

THE COMMISSIONER: But I can't make a finding of a dispute if the union is not in any way eligible to enrol anybody and a finding has been made.

PN58

MR TAMPLIN: But that comes down to also the coverage of the award, sir, doesn't it?

PN59

THE COMMISSIONER: Well, it comes to - - -

PN60

MR TAMPLIN: Aren't they interlinked?

PN61

THE COMMISSIONER: Yes and no. It comes to the coverage of the award. For example, the award could apply from the managing director down or the award could apply to a particular class of person and exclude other classes of person depending upon how that's resolved but for you to deny right of entry you would have to demonstrate that there are no persons eligible to be covered and the thing that's against you there is the finding of dispute that's been made after considering your argument and the argument of other employers who opposed both the CPSU and the CEPU in their quest to have a dispute found.

PN62

MR TAMPLIN: I take your point, sir. Obviously we need to have a closer look at the finding and any areas that are there, however, the award itself as we point out appears to us to say no prejudice to people within the telecommunications industry and it also says the industry which it applies to in 4.2, the classification it covers and any exemptions.

PN63

THE COMMISSIONER: Yes, that is still a hotly contested issue between the parties.

PN64

MR TAMPLIN: And particularly the industry.

PN65

THE COMMISSIONER: Yes.

PN66

MR TAMPLIN: That concludes our submissions, sir. We're happy to move into conference if that will assist.

PN67

THE COMMISSIONER: Thanks, Mr Tamplin. Mr Jones?

PN68

MR JONES: Our reply is brief, Commissioner. Also, it's probably relevant and I don't wish to place Mr Tamplin at a disadvantage by raising this in reply. If he has an objection to it - - -

PN69

THE COMMISSIONER: It's all right, he can have another go if he needs to.

PN70

MR JONES: It's relevant that you did not find a dispute between the CEPU and Australia On Line Limited and you adjourned that matter by consent of the parties. It's relevant to our submission in reply that this matter can be dealt with by reference to first principles. An award was made between two union parties on the one hand and AOL on the other and settlement of alleged disputes, it couldn't have been in settlement of a dispute with the CEPU because there was no such dispute. Either the award was properly made binding AOL or it wasn't and in our respectful submission it certainly was properly made.

PN71

THE COMMISSIONER: Very well, I'll adjourn the matter into conference.

OFF THE RECORD

NO FURTHER PROCEEDINGS RECORDED