C2002/2930, Transcript of Proceedings [2002] AIRCTrans 2986 (5 August 2002)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 4, 179 Queen St MELBOURNE Vic 3000
(GPO Box 1114 MELBOURNE Vic 3001)
DX 305 Melbourne Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS


O/N VT05021

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT KAUFMAN

C2002/2930

APPLICATION FOR AN AWARD

Application pursuant to section 111(1)(b)
of the Act by the United Firefighters' Union
of Australia-Victorian Branch and Another
for an award

MELBOURNE

10.17 AM, MONDAY, 22 JULY 2002

Continued from 10.7.02

PN47

MR R. CRAMPTON: I appear for the United Firefighters' Union of Australia.

PN48

MS L. MUMME: I seek leave to appear on behalf of Intergraph.

PN49

MR N. HENDERSON: I appear for the Australian Services Union, in lieu of Mr Rankin, on this occasion, continuing our appearance as an intervener provisional.

PN50

MR R. RICHARDSON: I am from the CPSU. We received the notification. We have got an interest in this whole issue and I guess, in those circumstances, I am seeking leave to intervene.

PN51

THE SENIOR DEPUTY PRESIDENT: Yes, what is the attitude of the parties to Mr Richardson's application to intervene?

PN52

MR CRAMPTON: Your Honour, if I might go first.

PN53

THE SENIOR DEPUTY PRESIDENT: Yes.

PN54

MR CRAMPTON: I oppose the intervention, your Honour. Despite the assertion, we don't believe that the CPSU does have any interest, in respect to this matter, but maybe if they can develop their we might see something, however, at this stage, we oppose the intervention. However, do not oppose continued leave, in respect of Intergraph.

PN55

THE SENIOR DEPUTY PRESIDENT: Yes. Ms Mumme.

PN56

MS MUMME: Your Honour, you won't be surprised to hear that, on this occasion as well, we weren't aware that the CPSU were turning up this morning. I don't have instructions, one way or the other, as to the question of leave to intervene, so at this stage I might just say we have no submission to make.

PN57

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Richardson, what is your interest?

PN58

MR RICHARDSON: If the Commission pleases, the events of today are as a result of the government decision to convert the activities of Intergraph into a core public service function, under the Emergency Communications Victoria. The CPSU has been involved in the transition project, tri-partied group and I have been meeting through the last - since an initial meeting on 26 June, 2002. That has involved the secretary of our organisation, Karen Batt, who, unfortunately, went on leave on Thursday night and was uncontactable. Certainly, at the first of those meetings, on 26 June, there was a clear recognition that, as a result of the changes to Intergraph, that the CPSU had clear rules covering the employees, once they moved back into the Emergency Communications Victoria, and on that basis we would submit that we have an interest in this matter and that we should be granted status to intervene.

PN59

THE SENIOR DEPUTY PRESIDENT: Mr Crampton?

PN60

MR CRAMPTON: Thank you, your Honour. At present, Intergraph continues to operate as a privately owned organisation, separate to the operations of government. I will just issue with a couple of points, firstly, the CPSU did attend the tri-partied meeting on 26 June, however - - -

PN61

THE SENIOR DEPUTY PRESIDENT: Sorry, say that again.

PN62

MR CRAMPTON: The CPSU did attend the tri-partied meeting, the tri-partied meetings, your Honour, are the meetings that have been established through the Bureau of Emergency Services, Telecommunications, I think it is, BEST, with a view of - the parties being the unions, BEST, now to be ECV, and - - -

PN63

THE SENIOR DEPUTY PRESIDENT: Who else was at that meeting, what other organisations?

PN64

MR CRAMPTON: The - - -

PN65

THE SENIOR DEPUTY PRESIDENT: The CPSU, the UFU?

PN66

MR CRAMPTON: - - - UFU, ASU, Australian Liquor, Hospitality and Miscellaneous Workers' Union, are the organisations who attended the meeting, to the best of my recollection, I think, that is all that have a role anyway.

PN67

THE SENIOR DEPUTY PRESIDENT: Yes, and what government agencies or entities?

PN68

MR CRAMPTON: The ECV, which is the Emergency Communications Victoria, which is a new state owned enterprise, established under that act and Intergraph, as the employer, at this time and I think BEST is still a separate organisation, your Honour, or is a separate organisation. We don't concede that the CPSU does have clear rules coverage and whether that was - whether, as an indication by their invitation to attend, was an acknowledgment of that, I think, takes it a bit further than perhaps what might have been discussed. I simply say this, your Honour, that it may be that the CPSU has an interest, post the transition from Intergraph, as it exists at present, as a private employer, to the new government owned enterprise, however, at this stage - - -

PN69

THE SENIOR DEPUTY PRESIDENT: When is that expected to take place?

PN70

MR CRAMPTON: I think it is the 12th or thereabouts of September, of this year.

PN71

THE SENIOR DEPUTY PRESIDENT: Yes.

PN72

MR CRAMPTON: And they may well have an interest, after that time, your Honour, but I would suggest that there interest would be the same as what ours is, at this point, other than that we do have members at this point in time.

PN73

THE SENIOR DEPUTY PRESIDENT: Yes, but there may, and I don't say that they will, but there may be a transmission of business that binds whoever is the successor to Intergraph, BEST, to the terms of this award, that the CPSU won't have had an opportunity to involve itself in.

PN74

MR CRAMPTON: It will have that opportunity when that time occurs, your Honour.

PN75

THE SENIOR DEPUTY PRESIDENT: Then it will be a done deal, won't it.

PN76

MR CRAMPTON: Well and so be it.

PN77

THE SENIOR DEPUTY PRESIDENT: Yes. Yes, I understand that, but that is the issue that I have to determine, isn't it, on a question of leave to intervene.

PN78

MR CRAMPTON: Yes, your Honour. We just say, at this stage, there is no direct rights or no rights that are affected, there is no direct interest, in respect of the outcome of these proceedings, this is simply a matter for the UFU seeking to become respondent to the existing award and on that basis we don't see that there are any rights affected or that the interest is sufficiently strong enough to warrant intervention.

PN79

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. Ms Mumme, what is the position with Intergraph BEST, it is a private company at the moment, is it?

PN80

MS MUMME: Yes, it is, your Honour.

PN81

THE SENIOR DEPUTY PRESIDENT: And just remind me who the respondents to the Intergraph - I am just trying to find the full name of it - the Intergraph Enterprise Award 2001, who were the respondents to that?

PN82

MS MUMME: Just give me a moment, your Honour. The parties bound at this stage, your Honour, are Intergraph BEST Victoria Proprietary Limited, the ASU and the CEPU.

PN83

THE SENIOR DEPUTY PRESIDENT: Yes. Yes, so, to some extent, what I put to Mr Crampton isn't - no, it is, the CPSU is not a party to that award - - -

PN84

MS MUMME: No, no.

PN85

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. Well, on the last occasion, I asked the ASU and the UFU to enter into negotiations. I will reserve your position, at the moment, Mr Richardson. What happened as a result of that, gentleman?

PN86

MR CRAMPTON: Your Honour, subsequent to the proceedings, on the last occasion, Mr Rankin, who appeared for the ASU, advised or informed me that industrial officer, Mr Karlovic, would be the officer responsible for the ongoing discussions, in respect of this matter, that he would make arrangements for Mr Karlovic to contact me. However, that not occurring, I wrote, on 17 July and sent by facsimile, a letter, addressed to Mr Karlovic, indicating that there were to be discussions and we were hoping to have some discussions. I would like to hand up a copy of that correspondence, your Honour.

PN87

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN88

MR CRAMPTON: Your Honour, if you could mark that, we would appreciate it.

PN89

THE SENIOR DEPUTY PRESIDENT: Yes, I will mark that.

EXHIBIT #UFU5 LETTER FROM THE UFU TO THE AFU DATED 17/07/2002

PN90

MR CRAMPTON: Thank you, your Honour. In the letter, I indicated that the ASU had opposed the application that was before your Honour and did so on the basis that it contended that the UFU did not have constitutional coverage. As a result of that correspondence, Mr Henderson, who appears for the ASU, today, contacted me by telephone, we had some preliminary discussions, then a subsequent telephone conversation indicated that the ASU would be continuing to oppose the application, on the grounds that the UFU does not have constitutional coverage or employees at Intergraph.

PN91

That is where we are, at this stage, I am - as a result of some brief discussions, momentarily, before the commencement of proceedings, Mr Henderson did indicate that at least the ASU would wish to argue the coverage issue and perhaps relying upon the - what is called Clerk's Rule, however, that is best for him to put his position. However, as best as I can indicate to your Honour, today, is that the matter looks set to proceed on the basis of a determination as to whether the UFU has coverage.

PN92

THE SENIOR DEPUTY PRESIDENT: Mr Henderson.

PN93

MR HENDERSON: Yes, thank you, your Honour. I think Mr Crampton's account is an accurate one. The ASU apologises to the ASIA for not having come back to it earlier, but Mr Karlovic no longer works with the union and we have needed to come to grips with a number of matters fairly quickly. I did have a discussion with Mr Crampton and it seems, I mean, the ASU is certainly happy to have further discussions with the UFU, but it appears that there is a principal issue at stake and we are not going to get very far. The issue seems to be that they are allowed, we have a strong view that they are not able to enrol employees of Intergraph, under their rules and they have a fairly strong view that they are and regrettably, I think, it is a third party that is going to have to decide that issue between us.

PN94

THE SENIOR DEPUTY PRESIDENT: Yes, it sounds as though that third party is going to be me, doesn't it.

PN95

MR HENDERSON: I think it may well be, your Honour. Just to - I am not aware of what precisely was put by Mr Rankin, on the last occasion, but if I could just set the scene for the Commission. As your Honour is aware, Intergraph BEST Victoria, is a private company, which operates the emergency services communications for the State of Victoria, in relation to police, fire and ambulance, in two locations, the World Trade Centre and the Tally-Ho site in East Burwood. The CEPU has membership in the World Trade Centre site, which is the police operations, and as a result of the section 118A order, which existed up until terminated by his Honour Senior Deputy President Lacy, earlier this year, the CEPU had exclusive coverage of that particular site.

PN96

The ASUs membership, at this point, is confined to the Tally-Ho, Burwood site, which covers Intergraph's ambulance and fire operations and up until the termination of that order, of the section 118A order, the ASU had exclusive coverage at that site. And the Commission would note that the parties bound provisions of the award, which the UFU is seeking to be roped-in to, confines the ASU to the coverage, as set out in that 118A order, as does the respondency of the CEPU, is similarly confined. And neither the ASU nor the CEPU has taken any action - contemplated taking any action, at this stage, to amend the order.

PN97

The Commission would also be aware that there is a certified agreement in operation, which expires on 1 October this year, and the certified agreement sets out the majority of the wages and conditions. The award is a very sparse instrument. The other matter which, I think, has been alluded to, before your Honour, is that Intergraph's operations are due to come to an end, in the next few months and its operations will be taken over by Emergency Communications Victoria, in September, I think my friend said 12 September, that seems about right.

PN98

And, henceforth, the emergency communications for the State of Victoria will be provided by that organisation which is - which will be a statutory authority and is, indeed, a statutory authority, as we speak. Now the issues are many and the presence of my colleague, from the CPSU, indicates that well and truly, because, and I put this very - I am simply putting this from the Bar table, to set the scene, your Honour, I am not intending it to be taken as a definitive statement of the way of the world, but clearly, the coverage issues of the various unions changes, on the day on which ECV comes into operation and just by way of - just in passing, the arguments about the UFUs capacity to enrol employees change of course, as well, because the UFU appears to be excluded from covering employees employed by statutory authorities, other than the Fire Brigade and clearly, this organisation won't be a fire brigade.

PN99

Whereas, of course, CPSU will tell you, when they have the opportunity, that they, of course, can cover employees of statutory authorities and certainly, the ASU will say that it can cover - that we can cover employees of statutory authorities. So, it is a very messy situation and no doubt the CEPU has a view of the world about who can cover whom, in the organisation, as well. At this point, the matter before your Honour, is an application by the UFU, to rope itself in to the terms of the award, the Intergraph Award and the ASU says, well, firstly, the terms of the application simply seek to make the UFU a party to the award and they don't include, what we would suggest, the normal words used in such a matter, in that there doesn't appear to be any limitation on the UFUs respondency, in terms of its eligibility.

PN100

Now, it may be said that that goes without saying but, generally, roping-in awards confine the union to those persons eligible to be members of the union, in terms of the obligation of the employer.

PN101

THE SENIOR DEPUTY PRESIDENT: Well the award could only have that effect, at law, in any event.

PN102

MR HENDERSON: That is right, your Honour, but we simply note those words aren't there. But then, the ASU goes on and says that there are two main reasons why the UFUs application needs to be subjected to more scrutiny than perhaps might normally accompany a roping-in. Firstly, is the extent to which these employees are eligible to be members of the UFU, in terms of the eligibility criteria and without taking your Honour to it, in detail, we say, well, the UFU rule covers employees employed in or in connection with prevention and extinguishing of fires, the provision of rescue services, handling of spillages etcetera and the supply and installation of various fire protection equipment.

PN103

And we say there, well, how does that rule sit with the provision, by Intergraph, of police and ambulance services and to what extent is the provision and ambulance services caught up by that general catch-all of in or in connection with the provision of rescue services, as clearly they have nothing to do with the provision of prevention or suppression or extinguishment of fires. So, that is the first leg. The second leg, then, is an exclusion, in the rule, which excludes persons engaged in any clerical capacity and it goes on. And the words used there are a direct lift from the ASUs clerical eligibility rules, they are word for word with the AFUs clerks rule that came from the Federated Clerks Union.

PN104

And it is our view, your Honour, that looking at those two issues, that the employees that could be covered by the UFUs application - well there may not be any employees, who would be covered by the UFUs rules, in which case it would not be in the public interest, we would say, for the UFU to be made a respondent, given that, firstly, it would not have the capacity to represent anyone and secondly, it would only confuse employees about what entitlement the UFU had to represent their interests.

PN105

THE SENIOR DEPUTY PRESIDENT: Yes, and even if there is capacity, would you be making an 111(1)(g) application?

PN106

MR HENDERSON: Well, I think we would have to do all of those, your Honour, because the other matter, which, I think, was touched on in passing, on the last occasion, is that there is a certified agreement in place, which covers, effectively, all of the conditions of employment right down to an arrangement between the employer and unions as to entry on the sites. The employer saw fit to want to have a slightly different arrangement for entry of union officials on the sites, due to the nature of their operations. That agreement continues in operation and in our submission, is the primary instrument. So, even if the UFU could show the Commission, then, that it had coverage of some employees, we would say, at this point, given the changes which are imminent, it would not be in the public interest to grant the application at this time.

PN107

THE SENIOR DEPUTY PRESIDENT: Who are the parties to the certified agreement?

PN108

MR HENDERSON: The CEPU, ASU and Intergraph. So, I foreshadowed, to Mr Crampton, subject to what your Honour might - any view your Honour might have, that perhaps we need to program some hearing and the ASU needs to fully particularise what it intends, or what its views are.

PN109

THE SENIOR DEPUTY PRESIDENT: Yes. That is providing that your provisional leave - - -

PN110

MR HENDERSON: Providing that our provisional leave is granted, yes, your Honour. That is all I want to put, at this point.

PN111

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. Ms Mumme, do you have anything to say about the ASUs application?

PN112

MS MUMME: Not directly, your Honour, apart from raising my client's concerns with - perhaps I could put it this way, the uncertainty that it has created, some six weeks before this transition is going to take place. It is rather late in the day, I think, since - as you know and it has been put to you this morning, there has been some proceedings, earlier this year and Intergraph is quite concerned at the uncertainty of having all these unions come in, at this late stage, now they are up to the roping-in application. There has been, as I say, significant hearings, in respect to the 118(a), ratification of the 118(a) and then the dispute finding, before your Honour, not that long ago. So, I just raise with you my client's concern at this uncertainty of the workplace.

PN113

THE SENIOR DEPUTY PRESIDENT: Yes, what will happen to your client insofar as this award is concerned, once the transition takes place. Will your client still have any involvement in the provision of these services?

PN114

MS MUMME: Not, as I understand it. I understand that, your Honour, that there is a transition period and I don't have the dates here with me, this morning, but I think it will continue to operate in that transition period, but that particular company doesn't have a role to play, in those operations, after whatever that set date is.

PN115

THE SENIOR DEPUTY PRESIDENT: Yes. So, your client's interest is limited in duration?

PN116

MS MUMME: That is right.

PN117

THE SENIOR DEPUTY PRESIDENT: You may not be able to answer this, but the application by the UFU is consented to by your client?

PN118

MS MUMME: Yes.

PN119

THE SENIOR DEPUTY PRESIDENT: And what will be the effect, as far as you understand it, of the UFU becoming bound by the award, as it proposes, if I grant that order?

PN120

MS MUMME: Well, only that it has the same - well, as we understand it, it has the same rights as the other unions that are party to that award. As Mr Henderson has raised, with you, there is an enterprise agreement in place which we would say would obviously override the award to the extent of any inconsistency, consistent with the act, but - - -

PN121

THE SENIOR DEPUTY PRESIDENT: Yes. So in a practical sense, what difference would it make if the UFU is a respondent to the award or not?

PN122

MS MUMME: Well, none, as far as my client is concerned, none.

PN123

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. Mr Crampton.

PN124

MR CRAMPTON: Your Honour, I don't intend to go into - - -

PN125

THE SENIOR DEPUTY PRESIDENT: No, actually, just before you do, I might just ask Mr Richardson a question and you can reply to it. Mr Richardson, if I grant the CPSU leave to intervene, what position does it take or would it take in the hearing?

PN126

MR RICHARDSON: If the Commission pleases, I guess our position and I am not under any instructions but I guess our position is that anything that happens in this period prejudices the discussions, that are taking place with the government, about coverage of ECV and that - - -

PN127

THE SENIOR DEPUTY PRESIDENT: How does it do that? At the moment, all the UFU is seeking is that it be made a party to the award, whatever that result - whatever effect that result might have. How does that prejudice the CPSUs position?

[10.44am]

PN128

MR RICHMOND: Well, it makes one more as you indicated earlier. It makes one more party who have got the arguing machines mission of business in terms of coverage into ECV. We believe that the process that was going on with the tripartite discussions was a better way of resolving the parties - all the parties concerns and reaching a settlement for the coverage of ECV.

PN129

THE SENIOR DEPUTY PRESIDENT: Yes, that may well be the case. Yes, thank you. Yes, Mr Crampton?

PN130

MR CRAMPTON: Thank you, your Honour. I don't intend to go into any lengthy discussion in respect to the issues that have been put before you. I would just say, however, that as an indicator to our capacity to represent the employees at Intergraph I would suggest that there is that capacity otherwise there would not have been a need for a demarcation order in the first place. If we didn't have the rules to cover the employees then there would be no need for it to be subject to the demarcation order to exclude the UFU.

PN131

However, be that as it may that order has been revoked nonetheless. The concerns that have been expressed by Intergraph about - or their concerns about multiplicity of unions is not a matter that really has come to any realisation in respect of any problems for the operations of the company and I think that the indication of consent towards the application speaks volumes for itself.

PN132

However, I think it is a matter of the ASU providing us with the details in respect of the nature of their opposition and that if the matter is to - and the matter obviously is to proceed for determination then the UFU would request tight time frames in respect of that material - the materials being provided and what is the evidence upon which the ASU relies to enable us to deal with it expeditiously. If your Honour pleases.

PN133

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. I will grant leave to the ASU to intervene in these proceedings generally and we will work out a timetable shortly. The ASU has demonstrated to my satisfaction that it has an interest in this application. It is one of the unions bound by the award and the certified agreement and given that it asserts that the UFU lacks jurisdictional ability to enrol as members any of the employees of the company that is a matter that needs to be ventilated and it is appropriate that the ASU be given leave to intervene.

PN134

The situation with the CPSU is different. The CPSU has not demonstrated to me that it has any present interest in this award. It may have an interest in what becomes - or what happens in the future when a statutory authority provides services to the Government that are currently - some of which at least are currently being provided by Intergraph best but that seems to me to be a matter that can be dealt with at the time. I decline leave to the CPSU to intervene in these proceedings.

PN135

Is it best if we go off the record to work out a timetable and directions?

PN136

MR HENDERSON: Yes, thank you, your Honour.

PN137

THE SENIOR DEPUTY PRESIDENT: Yes, we will go off the record temporarily.

OFF THE RECORD

PN138

THE SENIOR DEPUTY PRESIDENT: I have discussed the programming issues with the parties and I make the following directions. The ASU is to file and serve any witness statements - full witness statements upon which it relies as well as full written submissions in support of its position by close of business on Monday 5 August 2002. The United Firefighters Union is to do likewise by close of business on Monday 19 August 2002 and the matter will be set down for hearing at 10.15 am on 4 September 2002 in Melbourne. The parties are to notify my associate if an inspection is required in which case the time and date of hearing may need to be altered. If there is nothing further we will adjourn the Commission.

ADJOURNED UNTIL WEDNESDAY, 4 SEPTEMBER
2002 [11.00am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #UFU5 LETTER FROM THE UFU TO THE AFU DATED 17/07/2002 PN90