BP2002/1670, Transcript of Proceedings [2002] AIRCTrans 1960 (3 June 2002)

AUSCRIPT PTY LTD
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TRANSCRIPT OF PROCEEDINGS


O/N VT04067

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER GAY

BP2002/1670

APPLICATION FOR TERMINATION
OF BARGAINING PERIOD

Application under section 170MW of the Act
by Airservices Australia for orders to
terminate bargaining periods in BP2001/3335
and BP2002/1182

MELBOURNE

10.42 AM, FRIDAY, 17 MAY 2002

PN1

MR F. PARRY: I seek leave to appear for Airservices Australia, the applicant in the matter.

PN2

MR M. BROMBERG: I see leave to appear as counsel for Civil Air Operations Officers Association of Australia.

PN3

THE COMMISSIONER: Yes, Mr Bromberg. Leave is granted in both cases. Yes, Mr Parry.

PN4

MR PARRY: If the Commission pleases, as a background of this application Airservices Australia have been in negotiations with a number of unions for a certified agreement, one of those unions is Civil Air. That union, as the Commission will appreciate, represents air traffic controllers. Negotiations of some form commenced in February 2001. I suppose they continued on and off though until around August 2001. Then between August 2001 and February 2002 there was an intensive period of negotiation between Airservices and five unions. There are four other unions.

PN5

THE COMMISSIONER: Yes.

PN6

MR PARRY: Being the CPSU, APESMA, UFU and CEPU. Those negotiations developed to a stage where ultimately there was conciliation proceedings in the Commission, and Commissioner Deegan in late March and early April 2002 had seven days of conciliation. Now, following those extensive negotiations and following the conciliation there has been an in principle agreement reached with the other four union. And that in principle agreement is being progressed towards - through the processes that will lead to certification.

PN7

However, despite the extensive negotiations there has not been any agreement reached with Civil Air. Civil Air initiated a bargaining period on 2 August 2001, and a further bargaining period on 4 March 2002, and the Commission will note our application seeks the termination of two bargaining periods. There has been industrial action, being two separate stoppages of around four hours in March 2002, and the Commission may recall that - noted that the impact of the stoppages by members of Civil Air is such that it impacts on aircraft movement both domestic and international.

PN8

So the industrial action has, when it occurs, significant consequences. The application before the Commission is for the termination of the bargaining periods and the grounds rely on section 170MW(7), and the Commission will recall that that section has requirements within it dealing with the existence of the paid rates award being in existence at the commencement of the section, and we would, at an appropriate stage, take the Commission to the award that was in existence at the time, being the Airservices Australia Consolidated Award 1996, and we will be submitting that is a paid rates award.

PN9

We would also be submitting that in the circumstances of this matter there is no reasonable prospect of the negotiating parties reaching an agreement during the bargaining period. This application was filed on 29 April 2002. It is an application that Airservices wants progressed as expeditiously as possible. The matter is listed today for directions and programming. To facilitate that expeditious progression Airservices seeks these directions. That is, that the application, being Airservices, provide its statements and material by 24 May, which is next Friday, that Civil Air provide their material the following Friday, 31 May, that there be any material in reply by 12 June - sorry, not 12 June, I was looking for a day, that is five days later - so it would be 5 June, and then the matter be fixed for hearing thereafter, clearly at the Commission's convenience, but we would seek as expeditious a hearing timetable as possible.

PN10

My estimate of the days required would be two to three. I indicate that we anticipate having two witnesses. Now, there is one other matter, and I think it has been raised in correspondence with the Commission, and that is the venue.

PN11

THE COMMISSIONER: Yes.

PN12

MR PARRY: The preference of my client is for Canberra. The reasons for that, and we of course recognise this is a discretionary matter, but we simply make these submissions about venue, our preference is Canberra. Airservices is based there and those instructing me will be based in Canberra. Of the two witnesses we have one will be from Canberra and one will be from another capital city, not Melbourne. And the conciliation proceedings that have taken place, and the 127 - the conciliation, I think, was in Melbourne, but the 127 was conducted in Canberra.

PN13

THE COMMISSIONER: Yes.

PN14

MR PARRY: So we would seek that the two to three day hearing be programmed in Canberra. If the Commission pleases, those are the directions we seek with regard to this matter.

PN15

MR PARRY: Yes, thanks, Mr Parry.

PN16

MR PARRY: If the Commission pleases.

PN17

THE COMMISSIONER: Yes, Mr Bromberg.

PN18

MR BROMBERG: If the Commission pleases. Commissioner, let me say something about the negotiations, because my friend has given you his version, and we would respectfully disagree. I think the way that he puts it is that there has been some 14 months of negotiations. The truth of the matter is really there has been about four. And to say four is probably stretching it a little bit as well.

PN19

Can I explain that in this way. There is no disagreement that negotiations began in February of 2001, but between February 2001 and August 2001 what was at issue was structure not content. Throughout that period Airservices was really on a frolic where it was seeking five separate certified agreements and refusing to budge, and ultimately it went to the employees on that issue, refused to come to the Commission to have that matter determined - - -

PN20

THE COMMISSIONER: I recall that issue, Mr Bromberg, because that matter came before me.

PN21

MR BROMBERG: Yes. And ultimately the structure proposed by Airservices was resoundingly defeated in a vote of the employees. And by about August that was the case and at that time Airservices decided to abandon that approach. So there was a lot of wasted time on structure. There was no negotiation as to content. Not much happened in August. And then a great deal happened when 11 September occurred and shortly after Ansett collapsed. And at that point the parties essentially put the negotiations on hold given the uncertainty in the airline industry.

PN22

What was proposed at that time by Airservices was that the current agreement simply be extended to September of this year. So nothing really occurs, nothing much at all occurs between September until about 25 February this year when a new offer was put on the table by Airservices. So we say that the real starting point is about 25 February this year. Now, the offer that was put was based upon a certified agreement being cost mutual. There have been negotiations since the end of February. It is true to say they have been regular, and it is also true to say that they have been difficult.

PN23

Information that has been desired by Civil Air from Airservices has not been particularly forthcoming, especially concerning Airservices corporatisation policy, and the impact - the implication of that policy is likely to have on employees. Civil Air's request that senior management be involved in the negotiations for Airservices have been rejected. Nonetheless progress has been occurring. The Commission, as you have heard, has helpfully assisted, and you have heard that on 18 April, or thereabouts, Airservices reached an in principle agreement with four other unions.

PN24

Can I say this about that, that says very little about the negotiations between Civil Air and Airservices because those other unions deal with very different areas of work. We are talking about firefighters and others involved in the industry but not air traffic controllers. And there are specific peculiar issues which are relevant to air traffic controllers which have been the continued source of negotiations.

PN25

Now, since about 18 April, what has really been happening is that the employers has been using the threat of this termination application as a bargaining lever, as it were, to demand the unions in principle agreement to the employer's document. And negotiations have proceeded basically upon a document prepared by the employer as a draft certified agreement. Now, that tactic has been unproductive, in our view. It has not assisted genuine negotiations. It is not true, Commissioner, that there is no reasonable prospect of reaching an agreement at this point.

PN26

Now, when Civil Air took stopwork action, and one might characterise that as the union exercising its own bargaining lever, Commissioner Deegan was critical of that, and she said in her decision at that time that the industrial action, the exercise of our bargaining lever, was premature and that she was convinced that Airservices was prepared to further negotiate in a meaningful way.

PN27

Commissioner, hereby this application we see the other side of the same coin. This is the employer exercising its bargaining lever, the threat of termination of the union's bargaining period, and we say that the Commission's response ultimately in this application should be, and we believe it will be, that termination is premature and that Civil Air has meaningful negotiations - is prepared for meaningful negotiations and that some further negotiations ought to be allowed to take place.

PN28

Now, the trouble with all that is that my learned friend and I have a different view about it, and our clients have a different view about it, and what my learned friend proposes is that we spend the next six, eight, 10 weeks arguing about it. Perhaps shorter, I don't know, it depends on your availability. We think, with respect, that we can better use of that time, and I want to tell you, Commissioner, how that can be done, and hopefully put a very practical solution to you and also to Airservices which will see this go forward in a useful way.

PN29

Can I say this at the outset. My client is not fearful of arbitration. If arbitration is to occur we might, if I could say, we are quietly confident that the Commission will see merit of the union's approach, and we are not shy of arbitration per se. We are, however, concerned about arbitration occurring, if it has to occur, prematurely. Commissioner, as we understand the position of the employer at the moment, it seeks arbitration on all issues. Now, I have not counted the issues, but it would be as fair guess to say that they will be in the ten's perhaps - into the high ten's, perhaps even a hundred.

PN30

This is an esoteric area of work. We are not talking about trades assistants or clerks. We are talking about air traffic controllers in a fairly esoteric area. It is going to involve a great deal of evidence being brought to the Commission so that the Commission can gain an understanding as to how these people work, what they do, what is a just outcome in their particular unique context. Now, Commissioner, the last arbitration, MX arbitration, that I was involved with where there was an arbitration on all issues, took some 12 month with, I think, some 40 or 50 hearing days, and I am thinking about the South Australian teachers MX arbitration that occurred about two years ago. If you need any information about the unsatisfactory task that was involved for everybody, and this is not a criticism on anybody, but you only need to talk to perhaps Vice President McIntyre or Commissioner Deegan who were involved to get some understanding of just how difficult it is to - and how long it will take to have an arbitration on all issues in an industry like that.

PN31

Now, that in our respectful submission is to be avoided if it can be avoided. It will take a long time and it would involve a lot of resources, both of the Commission and the parties before it. There is a better way we think, and we propose the following. We ask the Commission to adjourn this application for eight weeks, and we do mean eight weeks, Commissioner. It is not an ambit claim. We propose that within three weeks Civil Air will prepare and present to Airservices a comprehensive proposal for a certified agreement.

PN32

That proposal will include a degree of new thinking. It will involve on a range of issues a new approach not before taken in negotiations. It will take some time for that to be prepared because that process involves the participation of persons, including those who instruct me, who have not been involved in the process and will need to be brought up to speed, as it were. We propose - - -

PN33

THE COMMISSIONER: Who do you mean, Mr Bromberg? Do you mean rank and file people - I just want to understand as you go along what you mean. Who are those people who haven't been involved and would need to be involved in this?

PN34

MR BROMBERG: Well, I mean those who instruct me, my solicitors of instruction.

PN35

THE COMMISSIONER: Yes.

PN36

MR BROMBERG: Elisa Heap, in particular who is not here today, but who is intended to be involved in assisting with the formulation and preparation of the new proposal. And it is a proposal that we think will take some time to properly develop and put to the employer.

PN37

THE COMMISSIONER: Yes.

PN38

MR BROMBERG: We think that thereafter there ought to be allowed some five weeks for negotiations. Now, the aim, Commissioner, is to settle the matter and avoid an arbitration. Alternatively if the matter cannot be settled then the aim certainly from the union's point of view is to narrow the issues of disagreement. At the moment everything is on the table. Everything is up for arbitration if my learned friend's application is adhered to. If we cannot settle on all issues then there is very good reason why the parties should sit down and seek to try and narrow the differences.

PN39

If at the end of the time, at the end of eight weeks, there is no settlement the union's position is that it will consent to the termination application. The union will also undertake not to take industrial action during that period in furtherance of a certified agreement. Now, we commend to you that approach, we say it does not involve any loss of time or any significant loss of time because if the approach is not adopted and we go down the route of arguing as to whether or not a termination application ought to succeed, as my learned friend's directions already make clear, we are going to be involved in a process that is going to take so many weeks. Now, we do not agree with his timetable. We would have thought that his timetable was on the conservative end of the scale in terms of the preparation necessary.

PN40

We will need a number of witnesses and it is unlikely, in our respectful submission, that an exchange of statements can occur before at least four weeks, complete exchange, and perhaps in the order of five. I think my friend's timetable is three. We may not be that far apart. But in any event there is going to be three or four weeks taken up in that process. There will then need to be a hearing date found. Commissioner, that will take three or four days, or really the best part of a week. Then the Commission will need to make a decision.

PN41

Now, it seem to us that that process is only going to take eight weeks, or so close to eight weeks, that it can safely be said now that any delay beyond - any difference between the acceptance of our proposal, which involves eight weeks, and the dealing of the issue through a contest in this application, is going to be minimal. We may be talking about a week or maybe talking about two weeks. In fact, the eight weeks we are proposing may turn out to be shorter. We do not know for sure, but the difference is not great.

PN42

In any event, eight weeks in the context of what might become an arbitration on all issues is a drop in the ocean, given the time that will be taken should the Commission determine that an arbitration is appropriate. We do think that a reformulation of the union's position will, at least, result in a narrowing of the issues. And if that and nothing else can be achieved, in our respectful submission, it will be worthwhile. So that to sum up the proposal, in our respectful submission, involves no loss of time or no loss of any real time. It involves the opportunity to narrow the matters in dispute, perhaps extinguish them entirely, as opposed to the parties from here on going into their camps and arbitrating their differences. It allows an opportunity for the union to reformulate its approach in a way that we think will assist.

PN43

THE COMMISSIONER: Yes, I follow that.

PN44

MR BROMBERG: So that from all perspectives we see it as an eminently practical approach. The employer is protected by the undertaking as to industrial action and by the undertaking that there will be consent to the termination application should our approach fail. In those circumstances we think that the proposal has a great deal to commend itself and we ask the Commission to adopt it. Does the Commission want to hear me now as to questions of directions and venue, or is the Commission minded to consider the proposal that we put as a preliminary issue.

PN45

THE COMMISSIONER: Mr Bromberg, has this position advanced by you today been previously advised to Airservices?

PN46

MR BROMBERG: It has and it has been rejected.

PN47

THE COMMISSIONER: Yes, well all right, thank you. Well, I will hear what Mr Parry says about that first.

PN48

What do you say about that, Mr Parry?

[11.11am]

PN49

MR PARRY: Well, we do take issue with some of the things that have been said about, for example, nothing occurring between September and February. My instructions are that there was an offer put on the table in December 2001 and the union took some two months to consider it, so my learned friend puts some sort of gloss on the negotiations to minimise them and to make them look like they have been much more limited than they are.

PN50

I am not going to address each and every one of those, but as it stands, there was the extensive negotiations that took place this year. There was seven days before Commission Deegan, there have been agreements reached with the other unions and we take issue with the suggestion that somehow because they work in different jobs, the terms they have agreed to can be simply put to one side and left out of this.

PN51

Ultimately, the most recent discussions led to a broadening of the issues between the parties rather than any particular narrowing, so we don't see that this sort of reformulation and producing another document is really going to advance the matter. If they want to go ahead and produce a document, that is a matter for them. We want our application progressed. The timetable I have advanced is not an unreasonable one, and we have the view that there are no reasonable prospects. They can go ahead and produce their document. No doubt my clients will give a proper and appropriate consideration when it is produced, but that shouldn't stop the directions and the matter being progressed in my submission. If the Commission pleases.

PN52

THE COMMISSIONER: Yes, thanks, Mr Parry.

PN53

MR BROMBERG: Can I just reply to that by saying one matter. Either we are in the negotiating mode or we are in fighting mode; we can't be in both. If this application has - - -

PN54

THE COMMISSIONER: People often are, Mr Bromberg.

PN55

MR BROMBERG: I am sorry?

PN56

THE COMMISSIONER: People often are. They 170MD(6) all day and then they have a brief break and work until late in the night for weeks on end.

PN57

MR BROMBERG: Well, we have in mind spending - - -

PN58

THE COMMISSIONER: I don't say it is particularly desirable to inhabit such a realm.

PN59

MR BROMBERG: No, it is not desirable. Commissioner, we have in mind spending time and resources over the next three weeks preparing a document. We can't do that and at the same time prepare witness statements to fight a termination application here. It is not a feasible approach. If the negotiations are to be progressed, then they ought to be progressed as negotiations. It is unhelpful for the parties to be both negotiating and arbitrating at the same time and it is not an approach that commends itself.

PN60

We didn't hear anything from my learned friend about how his client's position would be prejudiced and it won't be because at the end of the day either process is going to take in the order of eight weeks and why not adopt a process which allows for some further negotiations followed by a consensual termination application. If the Commission pleases.

PN61

THE COMMISSIONER: Yes, thanks, Mr Bromberg. I am going to have a conference with the parties. I am going to go off the record now to have that conference.

NO FURTHER PROCEEDINGS RECORDED