BP2002/265, Transcript of Proceedings [2002] AIRCTrans 1748 (21 May 2002)

AUSCRIPT PTY LTD
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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER CARGILL

BP2002/265-278

MEDIA ENTERTAINMENT AND
ARTS ALLIANCE

and

NORTH COAST NEWS PTY LIMITED
AND OTHERS

Application under section 170MI of the
Act re initiation of bargaining periods

SYDNEY

2.06 PM, TUESDAY, 7 MAY 2002

Continued from 19.3.02

PN172

THE COMMISSIONER: Seeing there are changes in appearances from the previous occasion could I perhaps run through the appearances again and I'll perhaps note for the record that in Sydney, as I understand it, it is the same appearances put perhaps Mr Ryan just for the record.

PN173

MR M. RYAN: If the Commission pleases, I appear for the Media, Entertainment and Arts Alliance and with me is MR. R. HARRIS.

PN174

MR D. WATERS: Commissioner, I appear for the Media, Entertainment and Arts Alliance.

PN175

MR. J. MURDOCH: Yes, Commissioner, I appearing for Toowoomba Newspaper Pty Limited and also for the other respondent companies.

PN176

THE COMMISSIONER: Mr Williams is with you who has previously given leave in these matters and you said that Mr Howes and Mr McMahon are also with you , Mr Murdoch.

PN177

MR MURDOCH: That's right, Commissioner.

PN178

THE COMMISSIONER: Perhaps first of all, Mr Ryan, if I could just ask you that given that Mr Williams has previously been given leave in these matters is there any difficulty with Mr Murdoch being given leave.

PN179

MR RYAN: I think there is under the legislation, Commissioner. I don't think the company is capable of having been represented by counsel, solicitor and agent, section 42(3) allows representation where the Commission is satisfied that the party going to be represented by counsel, solicitor or agent. We have Mr Murdoch, a barrister, Mr Williams, a solicitor, Mr Howes, an agent, and Mr McMahon the general manager of the company at Toowoomba and a heavy sort of team for conciliation over enterprise bargaining. I just don't think it is legally possible for you to grant all three of those persons leave to appear when you look at the requirements of the legislation.

PN180

THE COMMISSIONER: Maybe, I misunderstood. I undertook it that Mr Murdoch was appearing with the other gentlemen, but perhaps you can correct me if I am wrong, Mr Murdoch.

PN181

MR MURDOCH: Commissioner, that's correct. The intention is that I'm appearing but as a courtesy I wanted to identify that other appropriate people with authority were present with me. I did that to aid and facilitate the conciliation.

PN182

THE COMMISSIONER: Right, thank you.

PN183

MR RYAN: We object to Mr Murdoch's appearance, Commissioner, we don't believe there is any ground under section 42(3)(c) that would allow Mr Murdoch to be granted leave to appear and on the previous occasion Mr Williams has represented the company, he is present, Mr Howes is present and the general manager of the company is present. The proceedings are for conciliation only in relation to an agreement we seek to have made with the Toowoomba Chronicle so I don't see how Mr Murdoch's appearance is able to trigger any of the requirements of section 42(3). I mean an appearance by legally represented parties is a right, a privilege, it is not a right it is a privilege and as you have pointed out Mr Williams has previously appeared and I just don't think Mr Murdoch can make any case for being granted leave to appear because of section 42(3)(c), 42(3)(b) is just not available because the subject matter is not a special circumstance it is merely seeking to have conciliation over the making of a certified agreement and 42(3)(a) doesn't count because we have not consented to his appearance.

PN184

THE COMMISSIONER: Mr Murdoch, did you want to put something about your appearance.

PN185

MR MURDOCH: Yes, if I may, Commissioner. Leave has been given for my client to be legally represented, in my submission. My individual involvement does not require that that issue be traversed again if it is legitimate for Mr Williams as legal representation to appear it is legitimate for me as an individual and other legal representative to appear. The principle is, is it appropriate for legal representation and if the answer to that is, yes, it matters not who the individual is. As to the background issues the matter that the union seek to promote - - -

PN186

MR RYAN: With respect, Commissioner, Mr Murdoch - - -

PN187

THE COMMISSIONER: Just a minute, Mr Ryan, can Mr Murdoch finish please.

PN188

MR MURDOCH: The matter that the union seeks to promote, Commissioner, is one that is quite fundamental to the notion of enterprise bargaining. I have had a look at the matter with Mr Williams and we have advised our clients and it is the view of my clients that because of the complexity of the issues that have arisen that they need to have legal representation at this stage of the matter. My clients are people who say that they are anxious to participate in enterprise bargaining. The issue here is whether they can be dictated to by the other party as to the attendance at the conciliation of persons who are not paid officials of the union nor employees in the enterprise.

PN189

It is an important issue that raises, in our submission, fundamental legal questions and my clients want me here to assist them and assist the Commission in relation to that critical issue. So, Commissioner, putting aside the fact that representation rights have already been given to Mr Williams so far as the fundamentals underlined representation are concerned is a legitimate need my clients believe they won't be adequately represented without the representation they seek. If the Commission, pleases.

PN190

THE COMMISSIONER: Thank you, Mr Murdoch. Mr Ryan?

PN191

MR RYAN: Commissioner, on the last occasion, Mr Williams wasn't objected to by myself because Mr Howes was not present, the only person present was Mr Williams. I consented to Mr Williams appearance, I didn't consent to legal representation generally and nor does that make any reference to legal representation generally. Mr Murdoch, is asking you to answer a question that legislation doesn't even pose, it is simply put that can the public only adequately be represented by counsel, solicitor or agent, it is not all three together and certainly consent on one occasion to a particular person does not lend itself to consent to an additional legal representation, in this case counsel. We don't believe there are any great questions of law involved whatsoever it is simply put can one side dictate the other side's bargaining team which is what the company is seeking to do.

PN192

Now, we want that resolved and that can be resolved with Mr McMahon present who is the general manager of the company, he and he alone apparently have the authority to allow talks to take place, I can't see how Mr Murdoch can assist one iota in conciliation proceedings concerning one union seeking to have talk with a single company to replace the currently existing certified agreement.

PN193

THE COMMISSIONER: Mr Murdoch, is it your intention that should the matter proceed into conciliation your position would be to try and assist that conciliation process rather than merely run legal arguments about what may or may not happen.

PN194

MR MURDOCH: The first objective is to assist the Commission but if the need arises to go to legal issues I will, but the predominance purpose of today is we understand is to canvass the issues that have arisen and to ascertain whether within the framework of the Act the matter can move forward, we say that it can, the union appear to say that it can't. So to answer your question, yes, I'm here to assist I'm not here to log, roll or to take jurisdictional points against the proceedings.

PN195

THE COMMISSIONER: Thank you, Mr Murdoch. After considering what both parties have put in relation to this I'm prepared to grant you leave, Mr Murdoch.

PN196

MR MURDOCH: Thank you, Commissioner.

PN197

THE COMMISSIONER: Now, Mr Ryan, perhaps you can bring us up to date on what has happened. The matters have been relisted at the request of your organisations specifically at Mr Harris's request asking for them to be brought back on over what he said from the union's point of view to be the company's refusal to negotiate with union officers, so perhaps you could bring me to date, please.

PN198

MR RYAN: Yes, Commissioner, on 16 April Mr Waters, the Queensland branch secretary, three honorary officers of the union and myself attended at the workplace of the Toowoomba Chronicle to commence enterprise bargaining talks along with our local house committee chair. Attending for the company were Mr McMahon and Mr Howes. They refused to talk to us with officers present. They would only talk with paid officials and the local representatives.

PN199

I pointed out that the federal secretary pursuant to rule 57 of our rules had determined that there would be established a negotiating team to negotiate with 14 separate APM agreements. That too would consist of myself, the Queensland secretary, David Waters, Richard Harris from the New South Wales branch of the Alliance, Trevor Hockings, a federal councillor, Patrick Manning, Karen Holmes, Robin Still, who are Queensland branch councillors, they would be in the negotiating team for the 14 separate agreements. We informed the company of that, they refused to meet with that team in place and walked out of the meeting. This led to us seeking to have the matter relisted.

PN200

Commissioner, can I say that never in my life as a union official for this union or other unions have I ever seen an employer seek to determine the negotiating team of the other side, nor for our part have we ever sought to determine the negotiating team of the other side. It is just a fundamental of good faith negotiations that each side cops the other side's team. You may not like them but you have no right whatsoever to pick and choose your opposition. Could I tender some documents, Commissioner, I think for the sake of brevity the last two are the nutshell.

PN201

THE COMMISSIONER: Are they documents that the other side will have?

PN202

MR RYAN: They were faxed this morning by Mr Harris to Mr Williams.

PN203

THE COMMISSIONER: Mr Williams, I don't know what these documents are but did you receive some faxes this morning from the union? Mr Murdoch perhaps can answer that.

PN204

MR MURDOCH: Commissioner, there were some documents received this morning but the one we don't have and never received was the first one that Mr Ryan referred you to, namely, the notification to bring this matter back on. We have not seen that letter.

PN205

THE COMMISSIONER: That's a letter to my associate from Mr Harris. Normally the other party is favoured with a copy of it, that's all.

PN206

THE COMMISSIONER: It is a two-line letter and it says:

PN207

Further to my previous facsimile MEAA seeks to have the matters brought back on over the company's refusal to negotiate with union officers.

PN208

We can certainly make a copy available to you, Mr Murdoch.

PN209

MR MURDOCH: Commissioner, in due course, but thank you for letting us know what is in it.

PN210

THE COMMISSIONER: You have got other documents from the union.

PN211

MR MURDOCH: Yes, a number of other documents that came this morning, thank you.

PN212

THE COMMISSIONER: All right. Yes, Mr Ryan.

PN213

MR RYAN: The first document, Commissioner, is a letter from Mr Williams to myself dated 18 April 2002. The second document is my response to Mr Williams on 19 April 2002.

PN214

THE COMMISSIONER: As yet we appear not to have any exhibits in this matter so I will mark the letter from Minter Ellison, from Mr Williams, dated 18 April 2002. Although it is coming from the employer's side it has been tendered by the union so I will mark it as exhibit MEAA 1. The second document which is the letter from Mr Ryan dated 19 April 2002 I will mark as exhibit MEAA 2.

EXHIBIT #MEAA 1 LETTER FROM MR WILLIAMS, MINTER ELLISON, TO MR RYAN DATED 18/04/2002

EXHIBIT #MEAA 2 LETTER FROM MR RYAN TO MR WILLIAMS DATED 19/04/2002

PN215

MR RYAN: Commissioner, you can see there in exhibit MEAA 1 that Mr Williams was not present at the talks on 16 April, he seems to be making a number of suggestions as to what happened and they are refuted in my response. It was quite clear we spoke to Mr McMahon on the telephone and confirmed in writing that the union was represented by union officers and local delegates and there is an attempt to rewrite history when you look at Mr Williams' correspondence. In relation to the 19 April letter, which has not been responded to by the company or Mr Williams' firm, I have refuted those points. I pointed out that the federal secretary had exercised his powers under rule 57 of the union's rules to establish a negotiating team.

PN216

Mr McMahon and Mr Harris were told on 16 April that we were here merely to negotiate an agreement for Toowoomba. I gave an explanation of the role of the union, how it is structured. I pointed out that the definition of officer in the Act applied to the four honorary officers and expressed our anger at management's walk-out when we had travelled a far distance to attend those talks for purely the Toowoomba agreement.

PN217

Simply put, Commissioner, what we seek is that the Toowoomba company negotiates with the Alliance to negotiate a certified agreement for the Toowoomba site and that Toowoomba management has no role in determining the make-up of our negotiating team, just as we have no desire to dictate the make-up of the Toowoomba Chronicle's negotiating team and to fast track matters it may be appropriate since the company has now had our log of claims for some months that they respond in writing to our claims so that when we do get together again we have an understanding of their initial position. That is purely what we seek, Commissioner, there is nothing fancy about this, just basic courtesy in industrial relations, that one side doesn't dictate who its opposition is. If the Commission pleases.

PN218

THE COMMISSIONER: Thank you, Mr Ryan. Yes, Mr Murdoch.

PN219

MR MURDOCH: Commissioner, the union was informed prior to the date of the Toowoomba meeting that the company was unwilling to have in attendance persons who were not full-time officials and were not employees of the Toowoomba Chronicle. The union engaged in brinkmanship in bringing them on anyway, so if there is a complaint about people being inconvenienced, the inconvenience arose from the union bringing the three people along in circumstances where they were well aware that the company would decline to bargain with them.

PN220

As to the company walking out, it is a play on words. It simply was a case of the company indicating that it was adhering to what it had previously said, namely, that it would not bargain with the three people present. Two opportunities were given for the union to revise its attitude towards who it wanted, the union didn't take up the opportunity so the discussions did not go any further.

PN221

The four people, Trevor Hocking, Patrick Manning, Karen Holmes and Robin Still, are employed in order by the Sunshine Coast Newspaper Company, the Mackay Printing and Publishing Company, the Maryborough Hervey Bay Newspaper Company and by the Bundaberg Newspaper Company. Our view is very firm that so far as rank and file representation goes we want that rank and file representation to be from the Toowoomba paper because it is the Toowoomba paper that will be the subject of the enterprise agreement. We believe it would be completely inappropriate to have the rank and file representation from Toowoomba swamped by persons who are employed by other companies who have their own agendas, their own claims and ultimately would be parties to their own certified agreements.

PN222

We are frankly not interested in the fact that the union has sought to clothe it with some measure of authority by including those outside rank and file representatives as part of a so-called negotiating team, so the position is that my clients want an agreement with MEAA, they want it to be on an enterprise basis, but they want their own employees in the enterprise to have a say assisted by the full-time officials of the union but without them being swamped or influenced by persons from other newspapers.

PN223

I want to emphasise, Commissioner, we are prepared to negotiate, we are anxious to negotiate, we wish to do it on an enterprise basis. We do not wish to be part of some patent bargaining exercise where we are dealing with a lone rank and file representative plus three or four representatives at the table from other newspapers. We are not prepared to negotiation on those terms, but I emphasise that so far as full-time officials of the union are concerned we expect they will be here, we are happy for them to be there, we are grateful for their assistance. Thank you, Commissioner.

PN224

THE COMMISSIONER: Mr Murdoch, did you want to make any comment in relation to Mr Ryan's suggestion also that the company respond in writing to the log that has been previously served?

PN225

MR MURDOCH: Commissioner, in the past it has been found that progress can be made if the parties sat at the table. We believe that a bald response in writing is not conducive to enterprise bargaining. We don't like the approach that has been suggested, we believe it is more likely that there will be a certified agreement between the Toowoomba Newspaper Company and MEAA that reflects the needs of the local enterprise, that is the paper and the employees in Toowoomba, if the bargaining takes place across the table. An exchange of documents in our submission will lead to an artificial situation that is unlikely to achieve a deal. We don't like that suggestion, we are not willing to go down that path. We want to go back to the table, Commissioner.

PN226

THE COMMISSIONER: Thank you. Mr Ryan, do you want to respond briefly to what Mr Murdoch has put?

PN227

MR RYAN: Just briefly, Commissioner, if I could draw your attention to the bottom of the third page of exhibit MEAA 2, the second last paragraph on that page. That is a resolution carried by members of the Alliance employed at Toowoomba newspapers and it reads as follows:

PN228

This meeting endorses officers of the MEAA ...(reads)... for a new certified agreement.

PN229

Commissioner, their own employees are saying, we want to be represented by this group of people. We have had lots of highfaluting words from the company about representatives of their employees, but when their employees have actually said what they want those views have been totally ignored. They can't have it both ways. This is just flim-flam from the company. They don't want to meet Alliance officers and they don't want to accept the views of their own employees and now they don't even want to write us a letter, we're not in the writing business. For God's sake, it's a newspaper, we are used to the written word.

PN230

We would expect to receive a response and sit around the table and nut it out. It would save time. It would make the first meeting more productive. We will not accept any employer dictating who the Alliance can use as negotiators for a certified agreement. That has no moral underpinning whatsoever. This is as morally repugnant as if I were to say, we will meet with Mr McMahon as long as Mr Howes is not there. We wouldn't do that because we have no right to do that. No one side has the right to pick its opposition. You can't pick and choose who you want to deal with.

PN231

All we say is let us cut the rubbish and get down round the table as we almost did some three weeks ago and nut out an agreement for Alliance members employed at Toowoomba, that's all we want. It is nothing hard, it's not rocket science, it is the way of the world day in and day out, but if the company wants to spit in its own employees face by disregarding totally who they want to represent them, let them be up front about it and say why they won't respect their employees' wishes. Simply put, the employees want us to be there. The company says it wants to negotiate an agreement for their employees. Their employees want us, so simply put, QED, the company should speak to the alliance negotiating team which does contain a delegate off the shop floor at Toowoomba. If the Commission pleases.

PN232

THE COMMISSIONER: I was wondering if it might be useful to go off the record and discuss the issue. Do you have any difficulty with that, Mr Ryan?

PN233

MR RYAN: No, Commissioner.

PN234

THE COMMISSIONER: Mr Murdoch, do you have any difficulty with that?

PN235

MR MURDOCH: Not at all, Commissioner.

PN236

THE COMMISSIONER: All right, we will go off the record and into conference.

NO FURTHER PROCEEDINGS RECORDED [2.36pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #MEAA 1 LETTER FROM MR WILLIAMS, MINTER ELLISON, TO MR RYAN DATED 18/04/2002 PN215
EXHIBIT #MEAA 2 LETTER FROM MR RYAN TO MR WILLIAMS DATED 19/04/2002 PN215