C2002/4305, Transcript of Proceedings [2002] AIRCTrans 3498 (11 September 2002)

AUSCRIPT PTY LTD
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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

MUNRO J

C2002/4305

CADBURY SCHWEPPES PTY LIMITED

and

AMWU and ANOTHER

Notification pursuant to Section 99 of the Act
of a dispute re withdrawal of labour

SYDNEY

2.44 PM, MONDAY, 26 AUGUST 2002

Adjourned sine die

PN1

HIS HONOUR: This is matter C2002/4305. It is a notification of industrial dispute lodged on 23 August this year by Freehills on behalf of Cadbury Schweppes Cottees in relation to an alleged industrial dispute concerning withdrawal of labour by Cadbury Schweppes employees. Could I have appearances please?

PN2

MR P. MORGAN: Operations Manager, Cadbury Schweppes.

PN3

MR G. ARNETT: If the Commission pleases looking after CEPU electrical division.

PN4

MR J. DANBY: If the Commission pleases appearing for the AMWU.

PN5

MR B. HALL: If the Commission pleases I am the Human Resources Manager of Cadbury Schweppes.

PN6

MR S. ROBINSON: If his Honour pleases I also appear on behalf of the CEPU electrical division on the basis of the section 99 notification to our Sydney office, your Honour.

PN7

HIS HONOUR: I think Mr Morgan it is your notification.

PN8

MR MORGAN: Thank you, your Honour. We seek leave to get a recommendation today if possible on having the employees work in accordance with our site agreement which covers the AMWU and CEPU in relation to following the disputes procedure, clause 21 and for our understanding of what clause 75 of the intent of the document was for the use of clause 75.

PN9

HIS HONOUR: Yes, go ahead.

PN10

MR MORGAN: Your Honour, based on a notification being received on the 21st re a meeting in relation to the secretary's position of the AMWU and the dispute they have with their Federal counterparts, we were advised that our shop stewards would be requested to attend a meeting on the 22nd. It was the view of the company that this wasn't in line with what clause 75 relates to. So we sought a meeting with our delegates to advise them that at this stage the company couldn't see this being consistent with intent of our agreement and that we would, while not stopping them attend the meeting, would seek some sort of resolution on this issue as prior in May this year we had also had a similar situation where we had an issue which we felt wasn't consistent with the site agreement and they withdrew their labour at that time as well.

PN11

So while the event is past, we are seeking some sort of recommendation so they do not withdraw their labour in the future and maybe some recommendations how we might as a group move forward and work this situation out.

PN12

HIS HONOUR: Yes, very well. Who wishes to?

PN13

MR ARNETT: We actually rely on clause 75 of the certified agreement. It has been operating since 27 November 2000 and may I read out clause 75. I don't know whether your Honour has got a copy up there at all of the certified agreement?

PN14

HIS HONOUR: Yes, I do have a copy but you may read it out.

PN15

MR ARNETT: Clause 75 re union meetings:

PN16

When mass meetings of union members are called by union officials for issues not relating specifically to site matters the following will be applied. ...(reads)... will not lose pay.

PN17

As Mr Morgan has said it has happened previously where the unions have called their members to a meeting. Our delegates at site have approached the company in order to abide by clause 75 to send a delegation. If I could say the unions never proposed to put this clause in the agreement. It was the company that wanted this clause in the agreement and simply all we are seeking is that the company allows a delegation to go to these meetings when called and I don't think we have a problem there. I would just like to add that the CEPU electrical division wasn't calling its members to the meeting but the protest stoppage that took place was clearly that the company on two occasions now had no intention of abiding by the certified agreement. If your Honour pleases.

PN18

MR DANBY: Your Honour, I won't try to expand too much on what Mr Arnett has said because I agree entirely with it. Indeed I wasn't the organiser there when the agreement was done but indeed I believe the company did insist on that clause going in. I believe that some time ago in May there was an issue where members were called to a meeting and the company objected to that and wouldn't let them go. That's the very same issue that's in their EBA that they wanted there and it deals specifically with items that are not related directly to the company but general union business. I really don't understand what the beef is about. Thank you, your Honour.

PN19

MR MORGAN: Your Honour, our issue is not specifically with clause 75. It is how we go about resolving disputes on site. This was raised as an issue. It was not done with the intent to create industrial unrest. It was done with the intent that the company has some concerns. We are more than happy to come around a table and try and resolve it. So our intent in approaching the delegates on the day was to let them know that we did as per our dispute resolution procedures and that we flagged it. That we were willing to come around a table and understanding their actions taken on day shift while the meeting was held but they also then followed that with the four hours being withdrawn on afternoon and night shift as well which caused ongoing unrest at the work place. So we would also request that they follow the disputes procedure while not in agreeance with us.

PN20

HIS HONOUR: How many delegates went to the - was it a mass meeting, I thought it was a shop stewards meeting?

PN21

MR MORGAN: A shop stewards meeting, your Honour.

PN22

HIS HONOUR: How many went?

PN23

MR MORGAN: You would need to ask - I am not sure of the attendance. It was my understanding that two went.

PN24

MR ARNETT: Our understanding is two attended, your Honour.

PN25

HIS HONOUR: So the issue then blew up because two attended, the company said well it didn't think it was covered by the clause 75 so you then had stoppages in pursuit of the matter, is that the story?

PN26

MR MORGAN: During the meeting, they off from 9.00 am in the morning till 1.00 pm and all left the site and took also the contractors off the site who were performing capital works. They also then followed that with rolling withdrawal of labour on afternoon shift from 3 o'clock till 7 o'clock and also on night shift from 3.00 am in the morning through till seven. After we also followed that up with addressing afternoon shift saying that we were happy to get round a table and work this out, they still wanted to continue the stoppages.

PN27

HIS HONOUR: Yes, did you wish to say anything, Mr Robinson?

PN28

MR ROBINSON: Nothing to add at this stage, your Honour.

PN29

HIS HONOUR: What precisely is it that you seek, Mr Morgan, do you want to go into conference now or do you want a recommendation in broad terms, what is it that you want?

PN30

MR MORGAN: Your Honour, in the show of wanting to proceed with this issue I would like to go into conference and see if we could get some sort of resolution as a group because it's Cadbury Schweppes' intention to continue to work with the agreement and to try and see if we can find a happy middle of the road if possible.

PN31

HIS HONOUR: Very well. I won't say anything on the record further. It does strike me as a pretty unfortunate situation that you end up with this amount of time lost over a matter in dispute of this kind. It really doesn't say much for the way in which these sorts of problems are worked out. I realise there is a fair bit of heat in the Craig Johnston issue in Victoria and no doubt there's a fair bit of factionalism within the union movement about the issue. But to drag the employer in in this way seems to be ill advised and - - -

PN32

MR ARNETT: Your Honour, could I just say on the record that we had nothing to do with the dispute in the AMWU. Our members actions were taken in support of their enterprise agreement. It's as simple as that.

PN33

HIS HONOUR: Even though they went out in spite of their enterprise agreement.

PN34

MR ARNETT: The members feel that the company has not once but now twice breached clause 75 of their enterprise agreement and they too wish the matter to be resolved. That clause was proposed and it was proposed I would believe because I didn't negotiate the enterprise agreement either. It was proposed by the company to keep people on site when members were called to meetings by their union. I couldn't see any other reason why - it's not a common clause, I don't see it in too many agreements. They have proposed it and all we are seeking is that they abide by it.

PN35

HIS HONOUR: I suppose that observation only magnifies the basis of the comment I was making, clause 75 talks directly about mass meetings of union members. This was a delegates meeting and unless I am mistaken there is always a difference between mass meetings of union members and a protest meeting or a meeting called of delegates. Be that as it may that's the first point. So the effect of clause 75 precisely to the circumstances that arose is a bit problematic.

PN36

I will say on the record that if it was two delegates who wanted to go to the meeting I would have thought the sensible thing probably would have been for the company to allow them to have gone. Not because necessarily it was the right application of clause 75 but because blind Freddie could tell that in Victoria and the AMWU at present, there is a rather ferocious fight going on and if the Cadbury Schweppes could get out of it at the cost of losing a few hours of two delegates times, loyal to the workers first faction or just going along to find out then they probably would have got of it cheaply.

PN37

I will not be interrupted at the moment, thank you. The next point is that the clause 75 does apply to a mass meeting of union members. If the issue is that a mass meeting of union members should be read as a meeting called by the unions to cover delegates attendance and clause 75 applies instead of the clause that deals directly with the rights of entry and delegates attendance, clause 9. Then on the statement made by Mr Arnett I think it was, you are getting close to pursuing claims in relation to the entitlements under the agreements. In that event you would be setting yourself up, or the membership up, for problems under 170MN even on the type reading that some members of the Federal Court are disposed to give it.

PN38

It would not seem to me to be all that wise to be pursuing additional claims in relation to an agreement. Namely, something that is not written in the agreement. It goes to an interpretation of it in a way that could attract upon the members the energetic pursuit of somebody or other's rights under section 170MN. What 170MN says is that industrial action will not be taken in pursuit of further claims during the life of an agreement.

PN39

You have a Minister out there who doesn't have a great deal of tolerance for protest action on behalf of Craig Johnston or anybody else. So, from the union end of the table I would suggest that there be some wariness about encouraging members to take protest action about anything that might be colourable as a breach of section 170MN. You don't need an order from the Commission. All you need there is there is an Act of Parliament that says taking industrial action during the life of an agreement, perhaps for the purpose that is stated, is a penalisable offence.

PN40

Section 170MN read with, I think it is 170ND and 170NF, means that the most enthusiastic pro worker first delegate - and the group of members who are supporting him - could find themselves in Court the day after tomorrow explaining why what they did was not in breach of section 170MN and why they shouldn't be facing themselves a fine. So you are not dabbling in the shallows. These are relatively fraught political times for AMWU officials and for the members who are trying to work out what is going on.

PN41

I would have thought that common-sense should favour treading fairly lightly. Both from the employer side and from the union side in relation to this matter for the reasons that I have spelled out. I didn't intend to make these observations on the record but I do so because the more you seek publicly to defend action by reference to emotions or facile interpretations of a certified agreement the more likely you are to attract someone who wants to test the position that you are putting.

PN42

That is increased when you are dealing with something of a political tinder box in relation to the subject matter of the protest meeting. I won't go further into that other than to say it is a set of circumstances where wisdom - for those who aren't directly involved in the conflict - would suggest it may be a matter of going softly, softly, lest you be dragged in, in order to be the subject matter of someone proving a point or two.

PN43

I have given you, on the record, a thumbnail sketch of what is in clause 75. What in fact is in section 170MN of the Act and the availability of clause 9 of the agreement in relation to delegates' rights. The reality is I would have thought is that your agreement is a little bit unclear. It is pre-eminently an agreement in this set of circumstances that should be given a practical, sensible content by the parties getting together under whatever clause it is that says you resolved disputes through a step-by-step process without having recourse to industrial action. That would be common-sense behaviour. And it would be common-sense behaviour without having to have spent the time of membership in losing pay over an issue of this kind.

PN44

I have to say some of those remarks I would address to the other end of the bar table also. If you were going around floating 170AB arguments or Freehills is generating an expectation that there can be a litigated end to these matters then the amount of pressure I suppose and public agitation of the matter is increased. I am conscious of a view that the Commission doesn't give much support in some of these matters. I pose, rhetorically for all of the parties, whether any lack of support that the Commission might give by for instance giving an instant 127 order measures up quite as capably in terms of turning out a large crowd for a meeting as the action that was taken by the company in relation to this matter.

PN45

I say on the record in relation to a recent decision - not of mine - not to issue a 127 order on the eve of a protest matter related to Mr Johnston might possibly have been justified by having a look at the turnout - or whatever these meetings are. Unless situations have changed greatly in Melbourne - from when I used to operate there - one problem sometimes when you called a mass meeting was to get people to attend it. Particularly if they had to come out on strike. They'd lose a day's pay sometimes for a cause that they didn't have much enthusiasm about. If the TV cameras did turn up to the mass meeting or the street march then they had to find the throng from the spectators.

PN46

Employers can sometimes display a little bit of sense themselves. If you want to magnify the protest meeting then try to get the Commission or the Courts or someone to intervene and you change the issue. Although I would have suggested that some pragmatic sense might be occasionally served, as is reflected by clause 75, in having whatever number of delegates turn up here - arguably it might have been five - if your only ended up with two would it not have been wisdom to have thought about turning a blind eye to whether the two or not were entitled to go letting them go. And you would have lost whatever number of hours work it was. Instead in combination everyone has lost a day's pay or a day's production unless it has been made good since.

PN47

My direct advice is to have a look at what other ways there may be to skin particular protest cats. It will be a rare occasion - at least in my experience as an ex union official - where the officials are delighted at the turnout at protest mass meetings and I have to say on my own limited experience the occasions where the attendance at the mass meeting came closest to optimal expectations was where the employer had made a great contribution by given the union officials or somebody a gigantic serve on the eve of the meeting. The employers can get turnouts for meetings that union officials, with all their devices and cajolery simply cannot.

PN48

I suggest it is something you might ponder. It is something that a number of members of the Commission have pondered. And I say quite bluntly only the record I think they might have a bit more wisdom experience and insight into the appropriate way to deal with some of these problems than those who are entering into the lists and bemoaning the fact that they can't get orders instanter from the Commission to block or threaten to enjoin particular industrial conduct.

PN49

I hope I have given you an even-handed serve at both ends of the bar table. Let's have a chat about how you can avoid this sort of problem. We'll go off the record and we can discuss it in conference. I'm happy to make a recommendation in due course, but I would like to at least get some idea as to what sort of a recommendation might be acceptable to the parties as a recommendation of the Commission.

PN50

Otherwise I will simply rest on the remarks that I've made on the record because they have a pretty direct, I hope, edge in them as to how the matter should be handled broadly in future. I'm prepared to give you an informal interpretation beyond what I have of the provisions of the agreement. But I think in these areas a bit more flexibility rather than less is a sensible approach.

PN51

I will adjourn into private conference unless somebody - I think I did curtail somebody who wanted to contradict me or say something. You are welcome to have a go now if you wish.

PN52

MR MORGAN: Apologies, your Honour, and let's proceed in conference. That's agreeable.

PN53

HIS HONOUR: Any objection to that course? The Commission will adjourn into private conference.

OFF THE RECORD [3.10pm]

RESUMES [3.28pm]

PN54

HIS HONOUR: In potential breach of section 170MN and of the desirability of both parties applying with good faith, the dispute resolution procedure of the agreement. Now, I can put that recommendation into writing in some form and send it out to you. Is that sufficient for the moment?

PN55

MR MORGAN: It is, your Honour.

PN56

HIS HONOUR: From the union end, any problems with that?

PN57

MR ARNETT: Well, we're more than happy to sit down and talk some more with the company if you like, get some more words, but we're satisfied. You can put that as a recommendation, your Honour, yes.

PN58

MR DANBY: Your Honour, I'm not satisfied at all with it. It moves away from the enterprise bargaining agreement. We had what the company insisted in there, and I don't see that they can just come along to the Commission when they have denied what is in the enterprise bargaining agreement, and have a bit of a whinge and a grizzle and then be able to convince you to make a recommendation in their favour on those grounds. Our members have observed this, strictly, at all times.

PN59

The last issue in May I think over the coal Royal Commission, the company saw then that there were problems with it, the way they had worded it, not the way we did it but the way they had worded it. They have had ample time to stop sitting on their hands and make an application or something to resolve the situation. They haven't done it. There's been another occurrence, and now they have come to the Commission seeking assistance. I don't think it's fair or correct to make the recommendation that the enterprise bargaining agreement isn't observed, in full and its entirety.

PN60

HIS HONOUR: Yes, I think all that means is that you're probably a long way short of agreement, aren't you?

PN61

MR MORGAN: It does seem as if, your Honour.

PN62

MR DANBY: Yes, Commissioner. Well, I am, anyway.

PN63

HIS HONOUR: Well, do you want me to persist with the recommendation in the face - I don't normally make recommendations; I'm not for a moment accepting the premise upon which the AMWU representative has put his point of view. For the reasons I've indicated I don't think clause 75 dictated that five people had to be given no loss of pay to attend a meeting. I don't think the disputes resolution procedure has been adequately complied with. So my recommendation was not essentially responding to a whinge of the company; it was trying to produce a way whereby you might sought yourselves out for the future.

PN64

But if you want to go on with the issue and you don't want a recommendation from the Commission to which you both largely agreed, then it's no skin off my nose. I don't make recommendations that I don't think will be accepted. What I was proposing that you convert clause 75 into something that says where you don't have a mass meeting of members, but do have a meeting called of delegates, you read it freely enough to allow you to have two. Now, if the union end doesn't want that recommendation, and can't live with it, then I'm not suggesting that the company should be stuck with it either.

PN65

MR MORGAN: Your Honour, we're happy to proceed as per the recommendation. Our interpretation of it is that we will allow at least two delegates to attend. We can live with that, and our long-term intention is to get a better wording in there which serves both parties. So we're happy to continue with the recommendation if we can find a way forward.

PN66

HIS HONOUR: Very well. Well, I'll leave it on that basis, as a proposal to see whether you can find a way forward. I'll reserve liberty to apply should the need arise. I'll order transcript so that perhaps people might think about the comments that I've made, which are based largely upon the provisions in the Act and the agreement. They're pretty self-evident. And hopefully the troops have had their run in the sun and that might be the end of it until you come around to campaign in 2003. All done?

PN67

MR MORGAN: Thank you, your Honour.

PN68

HIS HONOUR: I'll reduce that to writing and get it faxed out to you as soon as practicable.

ADJOURNED INDEFINITELY [3.35pm]