AG2002/659, Transcript of Proceedings [2002] AIRCTrans 2660 (12 July 2002)

AUSCRIPT PTY LTD
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Level 7, ANZ House 13 Grenfell St ADELAIDE SA 5000
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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER McCUTCHEON

AG2002/659

BOEING CONSTRUCTORS CERTIFIED
AGREEMENT 2002

Application under section 170LK of the Act
by Boeing Constructor Incorporated and
Another re agreement with employees (Division 2)

ADELAIDE

10.55 AM, THURSDAY, 27 JUNE 2002

Continued from 19.6.02

PN100

THE COMMISSIONER: I will take the appearances please.

PN101

MR J. HANKIN: Commissioner, I appear as a solicitor on behalf of Boeing Constructors Incorporated. For today's hearing, Ms C. Holland, who is the management representative for Boeing Constructors and also Mr P. Warner, who is the employee representative at Boeing Constructors, and Mr Warner is also the Chair of the negotiating committee, they have both attended.

PN102

THE COMMISSIONER: Thank you.

PN103

MR E. GRUE: I appear on behalf of the Australian Workers Union.

PN104

THE COMMISSIONER: Thanks, Mr Grue. Mr Hankin, since this matter was before the Commission last on 19 June, I have had a letter from the Whyalla/Woomera branch of the AWU, indicating that they were happy to become a party. We have had one from Mr Murphy, dated 24 June for the ETU, or CEPU, and I think that may have been copied to you.

PN105

MR HANKIN: Yes, I have received a copy of that letter.

PN106

THE COMMISSIONER: We have had a communication from a gentleman by the name of Graham Hopyek, who objects to the ratification of the agreement and provides some reasons for doing so.

PN107

MR HANKIN: I have got a copy of that too. Your Associate kindly sent that - forwarded that on to me.

PN108

THE COMMISSIONER: We have had an affidavit from a Peter Anthony Tieg, who is a divisional secretary of a union - I'm not clear what union it is - he refers to an Alan Paton - I'm sorry, it is the ETU again - and this morning we received a communication from a Lucio Matarazzo, who - - -

PN109

MR HANKIN: Yes, Lucio is from the ASU.

PN110

THE COMMISSIONER: Yes.

PN111

MR HANKIN: And I think he is based in Darwin. I have not seen that.

PN112

THE COMMISSIONER: Well, the letter opens up by saying:

PN113

The ASU notifies that it wishes to be a party and a respondent.

PN114

And asks that the letter be tabled and a copy provided to all parties, but it then goes on to make some fairly pointed remarks about the ballot process and it says:

PN115

It has been requested that the Commission consider invalidating the vote that occurred in the last week of April 2002.

PN116

You might wish to comment on that.

PN117

MR HANKIN: I will get Ms Holland Mr Warner to talk about the ballot process in due course.

PN118

THE COMMISSIONER: Yes.

PN119

MR HANKIN: I thought - - -

PN120

THE COMMISSIONER: Perhaps if we go back to where we left it last time and tell me what you have done since.

PN121

MR HANKIN: Yes. I think at the last hearing the Commission directed that copies of the agreement which has been proposed for certification be served within 48 hours on each of the unions which are named as provisional parties in the agreement. That was done later in the afternoon subsequent to the hearing. I have provided your Associate, electronically, with copies of the five letters that went out in the mail that afternoon. Each of those letters were addressed to the union official who had been nominated previously by the relevant union as being the appropriate point of contact in relation to the agreement.

PN122

THE COMMISSIONER: Yes.

PN123

MR HANKIN: So they didn't go to national offices. I felt that they should go to the union nominated points of contact because, otherwise, the Federal offices might not know what it is about at all. I have received a copy of the letter from the CEPU saying it wishes to become a member and I have received from your Associate, a copy of the E-mail from Mr Hopyek. I will deal with Mr Hopyek in due course.

PN124

THE COMMISSIONER: All right.

PN125

MR HANKIN: I thought I should amplify the historical background because I have got more information now than I had last Wednesday. Meetings took place with all five unions in Alice Springs on 5 February this year. The unions put forward various proposals, they were considered by the work-force, some were accepted, some were not. By letter dated 5 February, each of the unions was provided with a copy of the agreement as it stood at that date and each of the unions was provided with a response in writing to each of the suggestions that they had made.

PN126

On 14 February, further letters went out to the unions referring to the company letter of 5 February, enclosing a copy of the proposed Certified Agreement and saying:

PN127

As you can appreciate, we are keen to bring this matter to closure. Your feedback would be appreciated, together with the details of the appropriate person to sign the sign off sheet to be attached to the Certified Agreement. If you could get the above to us by the close of business on Monday 18 February, it would be appreciated.

PN128

Didn't happen. Nothing happened. Wednesday 20 March, further communications to each of the unions. Now, by this stage the agreement which is before the Commission was in pretty much its final form, other than perhaps a couple of typos. It says on the sample to Mr Robertson from the AMWU:

PN129

Please find attached a final version of the proposed Certified Agreement, together with a sheet listing the changes that have been made to the document. Our proposed timetable is as follows. We would like your feedback by close of business on 28 March, together with details of the name and position of the person from your organisation that will sign the sign off sheet. Having received your feedback, we will be sending the notice of voting, a copy of the document, etcetera, out to all employees on 2 April 2002. Voting papers will be forwarded to all employees on 15 April 2002, with votes to be returned by close of business on 24 April 2002. The vote will be counted on Friday 26 April 02. I would appreciate your help in meeting these deadlines.

PN130

That went to AMWU, Mr Robertson. It went to the CEPU, Mr Alan Paton. It went to the ALHMWU, Rebecca Collopy, and it went to Tracy Dickin of the AWU and it went to Mr Lucio Matarazzo of the ASU. The feedback that the company received from all of those unions was zero, zip, nothing. Having received no feedback whatsoever from the unions, the company proceeded to hold the balance and the results of the ballot I have already provided to you, sir. In due course, I will ask Mr Warner and Ms Holland to tell you about the points that were raised about the ballot, there isn't anything in it at all.

PN131

I will deal now with the objection from Mr Hopyek. When I received the E-mail from your Associate providing me with the objection from Mr Hopyek, it rang a few bells. I scratched the brain box and realised that I had actually had some dealings with Mr Hopyek on a file which had gone to archives. I got my file out of archives and what your Associate has provided to you there, sir, is a copy of what I call "the pleadings file" that I maintained in relation to the matter involving Mr Hopyek. It was allocated C number 80110 of 2000. If you go into the document, you will find a respondent's outline of submissions which conveniently summarises what the objection from Mr Hopyek then was, and on looking at the current objection from Mr Hopyek, it appears to me that the current objection is identical. It is simply a re-agitation of the matters which were dealt with back in the year 2000.

PN132

I will speak to the outline of submissions because it summarises neatly the factual situation that affected Mr Hopyek. He was originally employed by Collins Radio Instructors Incorporated in February 1987. The applicant in these proceedings, Boeing, is the successor to Collins Radio. He was employed pursuant to a letter of employment which said nothing whatsoever about accommodation. At the time of his employment, Collins Radio Communications, had as one of its standard policies that it made no guarantees, or accepted any responsibility for the provision of accommodation. It went on to say that, provision of single accommodation was by arrangement with the United States Government. Now, the United States Government is the customer of Boeing Constructors and, in essence, the United States Government at that time provided subsidised accommodation on the facility for single people.

PN133

Mr Hopyek was provided with subsidised accommodation - paragraph 8 of the outline of submissions deals with that. Mr Hopyek lived in that accommodation which was subsidised by the United States Government from 1988, or thereabouts, through until either late 2000, or early 2001. The arrangement was that Mr Hopyek paid a rent to the United States Government which, by agreement of Mr Hopyek, was deducted from his pay by Boeing Constructors. In October 2000 - and here I'm speaking to paragraph 9 - the Chief of the facility, that is the representative for the United States Government - advised Mr Hopyek and I think it was some 17 others, that: the US Government was not going to continue the arrangement any longer in relation to providing subsidised accommodation.

PN134

The change in policy by the United States Government saw Boeing take steps to minimise the adverse effects of that on its employees. Boeing offered to provide counselling services for all of the employees affected by it. Boeing also offered a one off payment of $9500 to each and every one of the employees affected in order to assist them to move from their subsidised accommodation to whatever alternative accommodation they took up. Mr Hopyek rejected the $9500 outright, it just stunk, and he asserted that even though once the change of policy came into effect for him, he would be out of pocket because even though once the change came into operation he would be paid by Boeing an allowance to offset, or partly offset the cost of accommodation that he would have to pay tax on the allowance and, therefore, would be worse off in the sense of, after tax.

PN135

Mr Hopyek notified a dispute pursuant to the dispute settling provisions of the agreement which currently exists and that dispute was referred to Commissioner Eames. Commissioner Eames did not find it necessary to deal with the merits of that dispute because he found that he had no jurisdiction to hear it. The dispute settling clause referred authority to the Commission to deal with matters which were allowable under the Act and the Commission ruled that it didn't involve an allowable matter.

PN136

THE COMMISSIONER: That decision of Commissioner Eames was never appealed?

PN137

MR HANKIN: No, it was not, and I have attached that to the bundle before you, sir.

PN138

THE COMMISSIONER: I just read it, yes.

PN139

MR HANKIN: So since then, Mr Hopyek continued with his quirky refusal to accept the $9500, which would have been available for him and he has been paid and received the accommodation allowance as per the agreement which, hopefully, will be superseded shortly. Having read his E-mail, it appears to me to be an identical re-run of the matters which were heard before Commissioner Eames. And as such of merit I don't think that the objection warrants the Commission feeling any hesitation about certifying the new agreement. As a by the by, I would also point out that the no disadvantage test is as against the award, rather than at the existing agreement and by any stretch of the imagination the agreement as proposed is well in excess of what the award has got.

PN140

So I will deal firstly with the union communications. The company has attempted at every stage to keep the unions on-board for whatever reasons. The company has got very little feedback out of the unions and it has received nothing since February of this year. Last week, you will recall, I said that I had not sent a copy of the agreement to the union, that is true, the company had just prior to the ballot taking place and the copy that the unions got prior to the ballot was either identical to that which is before the Commission, or it varied only in relation to a couple of typos that might have been picked up, but Mr Warner has probably got the absolute detail of that.

PN141

Now, the ballot - I don't think the Act actually mandates a secret ballot, but the company decided that it would have a secret ballot. I think I told you last time that the company paid an independent accounting practice in Alice Springs to act as the returning officer. Votes were sent out to all employees on the payroll and Ms Holland has told me about the numbering on, at least twice, but the details don't stick, so I will turn that one over to Ms Holland with the very able assistance of Mr Warner so that they can explain what that particular issue.

PN142

THE COMMISSIONER: Yes, Ms Holland.

PN143

MS HOLLAND: It has a numbering - we have a list of all our employees and each person is just listed alphabetically, I believe, so we corresponded the number of ballot papers that went out to a number that was our total employees, because we do have a variation month by month, week by week, so everyone that was currently on-board at that time was listed and an equal number of ballots were sent out.

PN144

THE COMMISSIONER: And given a number starting off at 1.

PN145

MS HOLLAND: 1 to the end number. That list was then handed straight over to the company that was doing the - that was acting as the electoral officer and we didn't then participate in any collection of any numbers, it was just sent to them and as the envelopes were opened at the time, they were just making sure that there were no duplicates of numbers that came in.

PN146

THE COMMISSIONER: That was the role of the accounting firm, not your role?

PN147

MS HOLLAND: Yes, that is correct.

PN148

THE COMMISSIONER: Right, so what did the accounting firm then tell you?

PN149

MS HOLLAND: They opened the ballot papers and they told us how many were "yes" and how many were "no". They keep all the documentation and they will keep all the documentation for the life of this agreement.

PN150

THE COMMISSIONER: So unlike as is suggested by the ASU, it seems to me what you are saying is you had no means of identifying who had voted for what?

PN151

MS HOLLAND: Correct.

PN152

THE COMMISSIONER: Because in fact you didn't see the ballot papers.

PN153

MS HOLLAND: Correct.

PN154

THE COMMISSIONER: You - - -

PN155

MS HOLLAND: We were in the room, Peter Warner and myself were in the room, but we were as far distant here, to almost to yourself in terms of - - -

PN156

THE COMMISSIONER: Right, and then they told you the result?

PN157

MS HOLLAND: That is correct.

PN158

THE COMMISSIONER: Right, okay, thanks, Mr Hankin.

PN159

MR HANKIN: Peter, have you anything to add to that?

PN160

MR WARNER: No, that is the correct assumption.

PN161

MR HANKIN: Commissioner, this agreement, the process has been fairly long and tortuous. The company is extremely anxious that closure be achieved in relation to it. Mr Warner has told me - and I'm sure that if asked he will tell the Commission - that the work-force is extremely anxious to see the matter closed and disposed of.

PN162

THE COMMISSIONER: Mr Warner, as a representative of the employees, are you comfortable with the Commission going ahead and certifying this agreement?

PN163

MR WARNER: That is the express wish of the work-force by way of the agreement.

PN164

THE COMMISSIONER: You have been involved from day one, have you?

PN165

MR WARNER: I have.

PN166

THE COMMISSIONER: Do you know what the level of trade union membership is in the area?

PN167

MR WARNER: No, I don't, and I deemed it inappropriate to try to find out in the past.

PN168

THE COMMISSIONER: All right, thank you.

PN169

MR WARNER: I would make a point though that we have at every stage, both from the employer's side of the fence, if you like, and the employee's side of the fence, tried to actively seek participation, even to the point of sending E-mails out and prompting people to go back to their unions to seeks concerns and objections to make the process as transparent as we can.

PN170

THE COMMISSIONER: Thanks.

PN171

MR HANKIN: I commend the agreement for certification by the agreement.

PN172

THE COMMISSIONER: Thank you, Mr Hankin. Mr Grue, what are your instructions?

PN173

MR GRUE: My instructions are that simply the AWU seeks to be a party bound to this agreement.

PN174

THE COMMISSIONER: Now, that is the Whyalla - - -

PN175

MR GRUE: Well, I understand it is - the Federal organisation seeks to be bound - - -

PN176

THE COMMISSIONER: Right.

PN177

MR GRUE: - - - and that the Whyalla/Woomera branch, while being responsible for negotiations and responsible for their role in this agreement, that it is the Federal branch that was - - -

PN178

THE COMMISSIONER: Yes, I note that from clause 3, yes.

PN179

MR GRUE: Yes.

PN180

THE COMMISSIONER: And you are comfortable with all that has gone on?

PN181

MR GRUE: I don't have any specific instructions. It would appear that our branch at Whyalla wanted to raise an issue in relation to not receiving any recent information in relation to this certification but other - - -

PN182

THE COMMISSIONER: Well, they have it now as a consequence of my orders on the previous occasion.

PN183

MR GRUE: That is correct, Commissioner.

PN184

THE COMMISSIONER: Yes, all right. Mr Davis is the acting organiser, is he?

PN185

MR GRUE: He is. I understand that the secretary for Whyalla/Woomera is unwell and Mr Davis is acting in that capacity up there.

PN186

THE COMMISSIONER: Thanks, Mr Grue. This matter has been quite unusual in some respects and it may be that the respondent employer has suffered a level of frustration, however, there are rules and regulations to be followed and I think, possibly, I may have acted out of an abundance of caution. However, having heard from Mr Hankin, Ms Holland, Mr Warner and Mr Grue, having read all the documentation on the file, having understood that Mr Hopyek's objection had previously been dealt with by a Member of the Commission and taking into account in the ballot process, it would seem to me that Mr Hopyek may have voted "no", but the majority have voted "yes", and that is the nature of these types of agreements. Having said all that, the Commission is satisfied that it is appropriate to certify the agreement. I will do so. Once it is signed and sealed, copies will be provided - I think perhaps through you, Mr Hankin - being somebody on the spot and I will get you to forward those to the offices of the company in due course.

PN187

MR HANKIN: Yes, sir.

PN188

THE COMMISSIONER: All right. I appreciate you may have had to travel from Alice Springs, I'm sorry the weather is not better, but thank you for your participation today. Thanks, Mr Grue.

ADJOURNED INDEFINITELY [11.15am]