C2002/1488, Transcript of Proceedings [2002] AIRCTrans 1222 (10 April 2002)

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TRANSCRIPT OF PROCEEDINGS


O/N VT03180

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT LACY

C2002/1488

TXU ELECTRICITY

and

COMMUNICATIONS, ELECTRICAL, ELECTRONIC,
ENERGY, INFORMATION, POSTAL, PLUMBING
AND ALLIED SERVICES UNION OF AUSTRALIA

Notification pursuant to section 99 of the Act
of a dispute re glove and barrier work, shift
work and availability duty

MELBOURNE

4.40 PM, TUESDAY, 26 MARCH 2002

Continued from 22.3.02

PN75

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Dixon.

PN76

MR DIXON: Your Honour, we have met - since we were last before you, we have met with the ETU, and the company, it is fair to say have been in fairly concentrated discussion. Much of what Mr Riley indicated to you would happen, or he said would happen, did so. We understand that during times out there in the field people were made safe. There were efforts to return domestic customers on to supply, which is a consideration of the community, and also avoidance of any unfortunate incidents such as may have happened to Telstra. I understand Mr Riley discussed with the delegates and others about reconnecting commercial customers.

PN77

The meeting with the delegates took place on Monday, with the companies, mainly about the issue of labour mobility. You may recall, your Honour, that that was an area where the company indicated they were seeking to arrange the terms of personnel travelling intra and interstate, and what terms then that you could bid for work outside of the present franchise area. The idea, of course, fundamentally, as I think we put on the table, and we put it on the table again, is to help those who are engaged by the companies to continue to have work, to win more for themselves and for the company, to expand the company's operation in the electricity industry, for the benefit of all. Your Honour, there wasn't agreement reached in those discussions.

PN78

THE SENIOR DEPUTY PRESIDENT: You say there was, or was not?

PN79

MR DIXON: Was not. The issue seems to come down to three particular aspects, but of course once the words start to be written down, maybe more will emerge. But the three seem to be, first of all, how much notice will be given that people have to work away. There seems to be an agreement on that, that wherever possible, of course, as much notice will be given as can be, but the company would endeavour to give two weeks notice, and everyone seems to accept that that is a reasonable time. The next issue seems to be for how long at a time does a person go away, the period that they are away. And if that is two weeks or 20 weeks, within that time, an ancillary issue arises of do they come home?

PN80

And that seems to be agreed, that they come home when they are not required to work, and maybe they would be guaranteed to come home every fortnight.

PN81

THE SENIOR DEPUTY PRESIDENT: During the life of the assignment?

PN82

MR DIXON: During the life of the period away, yes. And then the third aspect seems to be for how many weeks in each year are these personnel asked to be away? So if there is an accident - now, can I put it in context, your Honour. We are talking here about a clause which has been in the '99 agreement and been there for some time, and people have gone away and it did not seem to have caused too many troubles. It has been altered slightly and focus has come upon it for some time. We are talking about not volunteers and the company has found that a number of people volunteered to go on these projects.

PN83

We are talking about the number of times that people can be asked to go, for example, if there were not enough volunteers. Now, there is an aspect of this that should be brought out, in that the company does not believe it is fair or equitable that only a few people go away all the time and others just avoid it. So really the company would like to see everybody contributing into this expansion of the company's activities. So there is that aspect that if we rotate it round to everyone, how long do they go away for? And they vary. The estimates are varied between the company and the ETU.

PN84

And it is fair to say that there has not been agreement reached on that aspect of how much per year or how long - the total number of weeks per year. And whilst we are moving towards agreement on the actual period, there has not been finalised agreement on that. Now, the company sees this as a fairly significant aspect, your Honour, because it gives them flexibility to bid for more work. It helps the agreement and the organisation work and make money. It helps the company expand. It helps the company finance the money side of things, which we should point out is not yet finalised. The money - - -

PN85

THE SENIOR DEPUTY PRESIDENT: Can I just clarify something on that? How much per year a person should be assigned or people should be assigned; is the issue there the company wanting to put some sort of a cap on them, or are the workers saying, well, we are not going any more than so many days a year, or something?

PN86

MR DIXON: The latter, your Honour. The issue is - and I am happy to go to the figures, but let me just give you some - - -

PN87

THE SENIOR DEPUTY PRESIDENT: No, that is all right, I just wanted to know - - -

PN88

MR DIXON: It is that - because we are talking about people being asked to go when they do not necessarily want to. Because volunteers, I think everyone agrees, Mr Riley can speak for the ETU, but I think everyone has been agreeing that if someone puts their hand up and volunteers to go and they are working more than this minimum, that does not matter. Everyone is happy to do that provided it does not interfere with the company's other operations, which is why the company wants to share the load, provided it does not interfere with the crew working in other areas of the company's operations.

PN89

If a person volunteers and they want to work 20, 25 weeks on project work, and they get benefits for doing so, then fine. I might say, your Honour, it seems that the money involved, there seems to be rough agreement on that too; how much per day, the type of accommodation, the living expenses. Now, they may not be, because nothing is finalised yet, but they seem to be falling into place. It is a matter of some people saying we don't want to go away any more than. So that is the limitation. The money aspect is close, but not quite finalised. We have not been able to reach agreement on the final figure, which would see this certified agreement finalised.

PN90

Those seem to be the two aspects, your Honour. Following the breakdown of discussions, or the inability to reach agreement is probably a better way of putting it, because discussions are still taking place, we understand that bans and limitations are now back on. We understand that they are taking effect. There are people still making safe, I understand - - -

PN91

THE SENIOR DEPUTY PRESIDENT: When did that happen?

PN92

MR DIXON: Sorry?

PN93

THE SENIOR DEPUTY PRESIDENT: I am sorry, when did that happen?

PN94

MR DIXON: Those bans went on Monday, following the meeting not reaching agreement. There are currently 750 people still off supply in Benalla, Traralgon, Wodonga, Seymour, Bairnsdale, South Morang, right throughout the area. Now, we think those bans are an unnecessary prejudice and potential serious prejudice to the community. We do not think they are necessary at all. We understand that they are protected; that is the system. We also understand that when people are trying to reach agreement, those sort of actions do not take it any further.

PN95

The company does not turn around and simply say there are 750 people, therefore we will concede. It is part of the action; we will cope with that. If there is any problem arising from it, as I have said we will point the people who are aggrieved to the ETU. We think they should work while we continue to explore whether settlement of this dispute can occur before this Commission, in line with the dispute resolution clause which, as I said last time on the record, and I repeat, your Honour, says that work will continue as normal and specifically there would be no industrial action while we seek to resolve it in the Commission.

PN96

So we asked again for a recommendation and a direction from this Commission that those bans be lifted, that all bans, limitations and other action by the ETU members cease immediately and that the parties continue negotiations and discussions before yourself. If the Commission pleases.

PN97

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Dixon. Mr Riley.

PN98

MR RILEY: Thank you, your Honour. We did have a meeting with the company on Monday. I had cross-representation from the three different parts of the company. After negotiations for a while with the company, we tried to get a position that we thought would be sellable to the guys. The position from the shop stewards at the start was that two weeks would probably be - was their limit. Conceding that there - - -

PN99

THE SENIOR DEPUTY PRESIDENT: That is notice, is it? Two weeks notice?

PN100

MR RILEY: Two weeks - I think two weeks notice is agreed now that that is probably going to be standard. The duration away at any one time, the guys were sort of saying that two weeks would probably be their limit, and we looked at the duration. During the course of negotiations, your Honour, we had a couple of breaks. We came back and offered to the company that we were prepared to try and sell to the shop floor that they, on two weeks notice, can be forced to go away for a period of up to four weeks at a time. We believe that is a big concession given to the company. We currently have 250 members employed with TXU Tenix. We believe that if that is evenly rotated around, that 12 weeks per annum should suffice the requirements of the company.

PN101

So we are offering to the company, your Honour, that obviously the volunteers that work away longer, that is obviously their choice, but the company can put a roster system in place where they can nominate people to go, conscripts, and that they will be required to go away for a four-week period, and they can do that for up to 12 weeks per annum. We believe, your Honour, that anything more than that would probably be rejected by the shop floor, and we believe that is more than fair under the current circumstances of what the rest of the industry is doing.

PN102

It is safe to say that there are other minor issues that need to be resolved. Hopefully we can get some understanding on this mobility clause. Money is one issue and there is some wording with other clauses that we would need to also address, but I think they are very minor, and this is a major issue. As far as Mr Dixon's accusation of so many people off supply, you may or may not be aware, your Honour, but a storm went through ..... last night and absolutely flattened TXUs assets, obviously due to lack of maintenance.

PN103

We have no bans or limitations on restoring those properties, your Honour. My people have been working 20-odd hours straight to restore the system, and people will be working right through the night tonight. It is their lack of resources which has taken them so long to put these people on supply. We have no limitations or restrictions on restoring the supply. We do have a ban on, which is a ban on live HV work, your Honour, and that has always been on, and the shift. But we do not have any bans on restoration of faults or customers.

PN104

So even though we had some limitations on last week, they were lifted Monday morning and everybody has been put on supply since Monday. If people are off supply now, it is because we do not have the resources to - - -

PN105

THE SENIOR DEPUTY PRESIDENT: What sort of resources?

PN106

MR RILEY: Well, your Honour, the blokes are out there restoring as quickly as they can. So they are not going to the job and ..... they are going round and putting people on supply as they get to it. They have been working through the night and they are still working now. So at TXU, if there is so many people off supply, your Honour, it is because there is that much work and the guys have not been able to get to it. So to say that we still have bans on - and I would like the company to prove where we have refused to put something on supply.

PN107

And I would like them to clarify that, because we have not refused to put anything on supply. My guys are working through. Guys have gone home because of fatigue. We had a situation where TXU sacked an employee because he worked excessive hours and made a mistake. So the company actually has a fatigue policy. So the guys will go home after so many hours continuous, to have a rest, because they do work with live wires. But we have no restrictions on connection of supply or anything like that, your Honour, at the moment, your Honour.

PN108

But getting back to the enterprise agreement, the conversations we have had, we are taking protected industrial action; we believe we have the right to do that under the Act. We have a clause that we are now conceding to the company. The floor was saying to us that two weeks is the maximum they will go away. We are saying we are prepared to take four weeks back to the floor, to see whether or not they would accept that. Anything more than 12 weeks a year we believe we will have problems selling that to the membership as an agreed package on that proposal.

PN109

So, your Honour, it is safe to say that we do not have agreement. I do not know where we can go in these proceedings from now on, other than us, I suppose, if TXU and the ETU cannot come to an agreement, well, we just continue on, we will take our industrial action, protected as per the notices, and we will just keep seeing how we go.

PN110

THE SENIOR DEPUTY PRESIDENT: Well, what about further conciliation in the Commission? Is that going to achieve anything?

PN111

MR RILEY: Well, your Honour, I do not think - obviously we have tabled what we believe is what would get up with the shop floor. We have been frank. We have not - there is no - we are not playing games here, trying to argy-bargy around. We are sort of saying this is what we believe the guys will accept. Anything other than that is going to be rejected from the floor. So we believe that we - you know, at the moment the company has a right to call for volunteers. We are now saying that they have the right to get conscripts; they can force people to go away up to four weeks of time. We believe that is a big move.

PN112

THE SENIOR DEPUTY PRESIDENT: For a total of 12 weeks.

PN113

MR RILEY: Yes, for a total of 12 weeks. That is a big move away from the industry, your Honour. We are now setting the scene; no other company in Victoria has that. We have conceded a fair bit to the company and I think that we have basically moved to a position where we cannot move any further. So, you know - and that is, you know, sort of - we have given them big concessions.

PN114

THE SENIOR DEPUTY PRESIDENT: Well, would the union agree to a recommendation?

PN115

MR RILEY: I would have to get some advice on that, your Honour.

PN116

THE SENIOR DEPUTY PRESIDENT: All right. I will just see what Mr Dixon has to say. Did you want to say anything else first?

PN117

MR RILEY: That is all, your Honour.

PN118

THE SENIOR DEPUTY PRESIDENT: Thanks, Mr Riley. Mr Dixon.

PN119

MR DIXON: Your Honour, can I say that the company is very pleased to hear that the ETU does not have any bans on restoring people, and it is only a matter of the size of the job, not the inclination to do it which is stopping people being on supply. That is an indication we are pleased to have received. And that there are no bans other than - let us not get too carried away and euphoric here - no bans except on live HV work and shift work, which of course has some limitations. It has been mentioned by Mr Riley the difference between the two. We have put to the ETU, and Mr Riley has spoken frankly here, that duration of four weeks; he came from two to four. And they think 12 weeks.

PN120

We could accept four, but are seeking 16 weeks as a maximum. Now, this is for people who are sent, other than at their own request, we do not think that is many, and this is for people if we do not have enough volunteers, and we do not know how often that will arise. So we do not think that is a burden on anyone, particularly. We do not think it is an onerous burden that they would be definitely regulated or definitely sent out. It will depend on the company winning the work. It will depend on there not being enough volunteers, and it will depend on these people not having been away before. And we would like the ability to rotate them.

PN121

We want it shared equally. We do not want to pull people out from - make volunteers come from other areas all the time, the same volunteers. So we do not think that is a major burden. So that is the difference apart there.

PN122

THE SENIOR DEPUTY PRESIDENT: Yes, I do not know how far you have gone into the detail of the assignments, but when you say away for four weeks at a time, what happens if the period that the people are away for, or Christmas falls in that period, or Easter, or any other public holidays and things like that, what happens then?

PN123

MR DIXON: Well, I will seek instructions on that, your Honour. But as far as we - every fortnight they would come home. Or, you know, after a fortnight they would come home. And then at the end of the four weeks they would come back. So - - -

PN124

THE SENIOR DEPUTY PRESIDENT: Even though it is a four-week assignment, they would still get back after two weeks? That is agreed, is it?

PN125

MR DIXON: For a weekend, yes, they come back for a weekend. Well, that seems to be - it is an item which seems to be largely agreed, that every fortnight they would be able to come home. And then it would be for four weeks only. What we are saying is that during a year we are looking for four of those assignments, if need be. If need be. Now, that is different from - - -

PN126

THE SENIOR DEPUTY PRESIDENT: So if a long weekend fell over the course of the two-week assignment, in the middle of the assignment, they would not come home for the long weekend, they would still wait till the following weekend to come home?

PN127

MR DIXON: Yes, my instructions are that on Christmas, Easter or a long - it would be normal work practices.

PN128

THE SENIOR DEPUTY PRESIDENT: Right.

PN129

MR DIXON: On those periods. For those holidays, sorry.

PN130

THE SENIOR DEPUTY PRESIDENT: Okay. Now, would the right to compel people to go, which might be putting it a bit bluntly, but would that right be subject to people's unavailability for domestic reasons or - - -

PN131

MR DIXON: For compelling, exceptional or whatever words that we could agree with the Commission and the ETU about, yes.

PN132

THE SENIOR DEPUTY PRESIDENT: Yes.

PN133

MR DIXON: Always. Your Honour, there has always got to be someone who may have a wife taking chemo-therapy in hospital or cannot get away, children who need special attention, whatever their own personal circumstances, there would be - that has to be the case. I do not think that is work to the - the durations which have happened recently or have happened in the past, under an existing living away from home clause 29 in the current agreement, I might say, which has no restriction on at the moment, but there have been some four-week assignments, five-week and eight-week, I think are the type of assignments which are happening. And they have worked reasonably well.

PN134

I do not think - we have not got any notice of people being caused great difficulty by that. So we would see that - we think further discussions might be advantageous, if nothing else. If protected bargaining goes on, as your Honour would be aware, if these matters go on the community is seriously jeopardised. We would be asking for bargaining periods to be put to an end if any action is taken which we think is already, as I flagged last time, has already been taken in that there is a restriction on the people who will do availability.

PN135

The ETU have not listed that in their notice, and if they are restricting people outside of shift workers from doing availability, then that is unprotected action and the company will institute proceedings and take whatever steps it needs to there. We can go down that track. The public gets inconvenienced. We have this; we have proposals which we could put, your Honour. For example, Mr Riley says the shop floor will not get up. We think it will. We think people - our feedback is that some people are disinterested in this or quite happy to do this work.

PN136

We would seriously entertain a request for you under section 135 of the Act to order a secret ballot, if this is the breaker that is stopping this agreement from going through. There have been - Mr Riley says there have been agreements made with every other distribution company. We are largely in agreement here. If that is the issue which is outstanding, we think it fits fairly neatly into the Commission finding that the prevention and settlement of this industrial dispute would be helped by finding out the attitudes of the members.

PN137

There are many volunteers. This agreement has got a life of its own a bit, your Honour. Many people who like the away work, we have increased the allowances attached to it; we think it is attractive to do. We are talking about the people who may be tapped on the shoulder. We do not think there are many of those. We do not think the prejudice is great. And if the Commission would be assisted, we would make formal application for you to consider a ballot to ascertain the position of the members. But if that is something you want to explore in conference, we would certainly like to take further steps along to see if that is where we have to go.

PN138

I mean, clearly the company cannot accept that there is continuing industrial action, protected or otherwise, which caused such dramatic effect upon the community. And because it has such a dramatic effect, we think we would be back here before you very quickly or before the Commission, seeking an end to the bargaining period under the provisions which relate to termination of bargaining period. So we would entertain perhaps further conference to see if there is any agreement possible. If not, if Mr Riley is saying that four weeks and 12 weeks is definitely it, I have not heard about what he says about the money, maybe we should go on the record about that until we can explore it fully in conference. But if those two issues outstanding - I do not know about the wording he is talking about.

PN139

I am always worried about wording differences, that they come out later. If you would like to put those down to us, if it is easier on the record, fine. If it is easier in conference, we are happy to go with that.

PN140

THE SENIOR DEPUTY PRESIDENT: Yes, all right. Mr Riley, if this matter is going to be progressed, or sought to be progressed in conference here in the Commission, who would you have to have present for that?

PN141

MR RILEY: I am sorry, what was your question, your Honour?

PN142

THE SENIOR DEPUTY PRESIDENT: Who would have to be - how many people would you need here - - -

PN143

MR RILEY: For a conference?

PN144

THE SENIOR DEPUTY PRESIDENT: - - - to try and progress this matter, yes. To try and resolve it.

PN145

MR RILEY: I would be - I suppose six people, if they were prepared to accommodate you today, your Honour, I suppose.

PN146

THE SENIOR DEPUTY PRESIDENT: That is the people that have been involved in the discussions or negotiations with the company, is it?

PN147

MR RILEY: Yes. We called together a group of people from different cross-sections; people prepared to go away; people who cannot go away. And they came and met yesterday to thrash these issues out. So I would probably want - if required, your Honour, I would probably call them back into the process. Can I just say, your Honour, one thing; it is a great unknown how much work this company is going to get. We are prepared to commit to 12 weeks, but we are also prepared to commit that if they do in excess external work projects, that we could probably review the 12 weeks. I am happy to have a look at that.

PN148

But I think that sort of basically that would probably be - you know, they may not win any work, and we are having this argument and wasting this time over nothing. We believe 12 is fair and reasonable. We are happy to sort of say, you know, if due to excessive workloads or external contracts, one, that that 12 hours could be reviewed. We are happy to review it. I do not want to turn around and say, well okay, you cannot go for external contracts now, it is all finished because guys have done the 12 weeks.

PN149

But we just sort of say in the interim we would like to keep the 12 weeks in there and we would be prepared to look at a review clause if excess external contracts are won. So - and as far as the money goes, it is 5 per cent. So - and as far as the other words go, your Honour, I had a meeting with Mr Matthew Dubble. We raised some words, more than which - I think were very minor; some dates on some of the allowances. For some reason the company had tried to sort of bring things in later than we requested, so it was just a few minor things which we have raised with the company this morning, your Honour.

PN150

MR DIXON: Your Honour, we are grateful for Mr Riley to make that indication that he would be prepared to - could I just put this to you and to him: to get this work, we need some sort of certainty. We need to be able to tender on some sort of mathematical basis. We need to be able to price the job, we need to be able to tender to get it. If we do not get the work, Mr Riley does not have to worry about 12 weeks or 16. We will not have any. So his position is covered. What we would like to do is we would like to be able to put 16 in, bid for it, and if we get it then people are working.

PN151

I am happy to seek instructions and I have no doubt, in the same spirit Mr Riley has offered, is that we would review it if people are becoming alienated by the number of times they are working and we have not got enough volunteers, there is not enough money flowing to them because they are receiving a lot more, 130 a day, for working away from home. If they are not happy, we would be more than happy to review it the other way. Mr Riley does not need a review because if it does not get there, his people are protected. If it does get there, and there is a lot of work around, we think his members will be happy because money is being paid and they are going on work.

PN152

If it is too onerous, we are more than happy to go and review it after six months. We would like to be in that position. We think Mr Riley's members would too.

PN153

THE SENIOR DEPUTY PRESIDENT: Could you have a provision that said a maximum of 16 weeks subject to any individual right of objection after 12 weeks? After completion of 12 weeks?

PN154

MR DIXON: I could seek instructions on that, your Honour. Something like that. When we already have - if you mean a broader objection than exceptional circumstances?

PN155

THE SENIOR DEPUTY PRESIDENT: Yes, yes.

PN156

MR DIXON: Yes, I can certainly seek instructions on that. We would have to - - -

PN157

THE SENIOR DEPUTY PRESIDENT: Yes, well, perhaps what I might do is adjourn, unless anybody wants - do you want to put anything else on the record now?

PN158

MR RILEY: No, your Honour.

PN159

THE SENIOR DEPUTY PRESIDENT: Yes, I will adjourn this matter into conference.

NO FURTHER PROCEEDINGS RECORDED