BP2002/4782, Transcript of Proceedings [2002] AIRCTrans 3896 (2 October 2002)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 7, ANZ House 13 Grenfell St ADELAIDE SA 5000
Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

DEPUTY PRESIDENT HAMPTON

BP2002/4782

APPLICATION FOR INITIATION OF BARGAINING
PERIOD

Application under section 170MI of the Act
by National Union of Workers re notice of
initiation of bargaining period

ADELAIDE

4.35 PM, TUESDAY, 17 SEPTEMBER 2002

PN1

THE DEPUTY PRESIDENT: Yes, good afternoon all - please be seated. Yes, these are conciliation proceedings in consequence of a notice of initiation of bargaining period under section 170MI of the Work Place Relations Act by the National Union of Workers. Gentlemen, I've decided that, as the file has sort of bounced around between a couple of members already, notwithstanding the nature of these proceedings, it would be appropriate if I commenced on the record in that context, however subject of course to what it is you want to say in a moment, it would be my intention to adjourn to private conference and to deal with the matter in that context in due course. So in that light, I will take the appearances.

PN2

MR P. RICHARDSON: I appear for the National Union of Workers with MR N. THREDGOLD.

PN3

MR G. GAVAN: With me I have MR C. SCIACCA from the company.

PN4

THE DEPUTY PRESIDENT: Good, thank you, Mr Gavan. Mr Richardson, NUW sought that the matter be re-listed. Perhaps you might outline the background to the issues and how you see we might progress the matter.

PN5

MR RICHARDSON: Thank you, your Honour. Perhaps at the outset and given that I'm mindful that we are on the record if I could express our appreciation to the Commission for calling this matter on at short notice and also allowing me some 30 minutes grace given the flight schedules. Your Honour, this matter concerns a bargaining period notice that was served upon IGA Distribution (SA) Ltd on 15 August 2002 and within that bargaining period some eleven claims were made in respect of a group of employees of the company who are described within the bargaining period as being clerical employees.

PN6

Those employees have been for a period of approximately 18 months, members of the National Union of Workers and whilst at this point in time they remain covered by the Clerks' Award in the State jurisdiction and an agreement between IGA Distribution and the Australian Services Union, up until approximately 1 August this year, there had been no dispute between the union and the company as to the union's ability to enrol such persons as members and act on their behalf consistent with the rules of the union.

PN7

Prior to the service of the bargaining period notice, the union had been seeking to enter into new agreements with the company in respect of not only the clerical employees, the subject of these proceedings, but also the vast majority of the employees of the company who occupy the occupation of store worker and who constitute by far and away the majority of employees of the company. Those negotiations were occurring in tandem with negotiations conducted by the Transport Workers' Union, in respect of approximately 20 drivers who were employed by the company, and the Australian Manufacturing Workers' Union in respect of a small group, I think some five or six employees, who are engaged as mechanics to maintain equipment that is owned or leased by IGA.

PN8

Negotiations were proceeding, and in our submission, were proceeding at a reasonable pace but were stalled towards the end of July due to the company's decision to terminate its personnel manager, a Mr Stewart Kearne and the union does not take any issue or place anything in these proceedings on Mr Kearne's termination other than it led to an apparent change in approach by the company, towards not just the National Union of Workers, but all unions and negotiations, generally.

PN9

Prior to Mr Kearne's termination, and I simply describe it that way as a reference point, the company had received a log of claims in respect of all employees, and in particular clerical employees and have responded to that log of claims and there have been the typical to-ing and fro-ing over what the content of agreements might be. However, subsequent to that change in representation by the company, the union detected that IGA was being less than forthcoming in response - I beg your pardon - in presentations made to it by the union in respect of clerical employees.

PN10

In fact, sir, I'm going to take the opportunity, given that we are on the record, the company elected to convene a number of meetings of the clerical employees and I'm advised that Mr Sciacca who appears with Mr Gavan today, addressed several of those meetings and in particular, provided the employees with a letter dated 16 August, setting out a process by which a possible agreement could be reached between the company and the employees which on the face of it would appear to be, although I will return to this, a proposal to reach an agreement pursuant to section 170LK.

PN11

Now, I'm not sure, your Honour as to whether all the material from previous conference and proceedings is in the file, but in the event that it is, it is marked as an attachment with the capital letter "E", in the right-hand corner.

PN12

THE DEPUTY PRESIDENT: There is material on IGA letterhead, 16 August 2002: Dear fellow employees, is that the - - -

PN13

MR RICHARDSON: That is the letter and with your indulgence I'd seek to have that marked as an exhibit.

PN14

THE DEPUTY PRESIDENT: I take there is no objection to that course of action?

PN15

MR GAVAN: No, your Honour.

PN16

THE DEPUTY PRESIDENT: Very well, then that document be admitted and marked as NUW1.

EXHIBIT #NUW1 MATERIAL ON IGA LETTERHEAD DATED 16/08/2002

PN17

MR RICHARDSON: Thank you. Your Honour, the letter of 16 August which is signed under Mr Sciacca's hand sets out - we will be okay - sets out a 5-step process for the purpose of reaching an agreement and it initially proposes that some two representatives be selected from the clerical employees and then sets out a process for negotiation. Most importantly, in our submission, at step 5, it indicates that: the agreement reached between the parties would proceed to this Commission for certification which would make it enforceable by law.

PN18

Now, given that there is no reference to the Union, or any union for that matter, and no reference to any industrial dispute within the meaning of the Act, the Union says it is open to the conclusion that the company is attempting, or was at the that point in time, at least, attempting to pursue an agreement that would be made directly with the employees pursuant to section 170LK and that as such, it was incumbent upon the company.

PN19

We say, in the absence of any retraction of that offer, remains incumbent upon the company to comply with section 170LK and section 170LK(4) in particular which provides that any notice should state that if any person whose employment will be subject to the agreement, is a member of an organisation of employees and that organisation is entitled to represent the interests of those employees, that that person may request them to represent the person in the meeting and so on.

PN20

It is matter of established fact that companies are aware that these employees are members of the Union, not only that because for the last year or so, the company has acknowledged the Union, has invited the Union to attend meetings in respect of the clerical employees, has sought the active assistance of the union in dealing with individual grievances of the employees, has facilitated the attendance of one of the employees who is appointed as the union delegate for that work area, to allow him to attend delegates meetings and the like, but also the company deducts union fees for these employees and remits them to the union on a regular basis.

PN21

Subsequent to the service of the initiation of bargaining period, further meetings were held with the employees and again, it is our understanding that Mr Sciacca attended those meetings during which, it is alleged that Mr Sciacca questioned the loyalty or commitment of some of the employees, given that they were members of the union and it is further alleged that Mr Sciacca would deal, or that is, the company would deal with any union other than the National Union of Workers.

PN22

As a consequence of proceedings in the State jurisdiction which primarily related to the inability of the parties to reach an agreement for the warehouse, a series - a statement and recommendation was issued by Commissioner Bartel, fundamentally that statement went to the conduct of the parties in respect of warehouse negotiations but made a couple of recommendations specifically in respect of the company's attitude towards the clerical employees.

PN23

That recommendation which was dated 30 August, indicated that the company should recognise the union, that is the National Union of Workers as the representative of the clerical workers, accept that the unions representations reflect the instructions of its clerical members and enter into bona fide enterprise bargaining negotiations with the union for clerical employees. Immediately after the issuing of Commissioner Bartel's statement and recommendation the company convened a meeting of the clerical employees and suggested to them that they may wish to sign a petition, and again that should appear upon the file but I can in this case, tender a copy of it.

PN24

THE DEPUTY PRESIDENT: There is one on the file.

PN25

MR RICHARDSON: And the petition, albeit, spelt incorrectly, sought that the employees indicate that they declare that they do not wish to be involved in the taking of industrial action in support of reaching an agreement regulating their wages and conditions and that they direct the union to unconditionally withdraw its notice of initiation of bargaining period. To date, your Honour, no one has signed that petition. On Thursday of last week, the union caused to be served upon the company, a notice of intention to take protective action and also - and concurrently filed the same with the Registry in Melbourne along with the appropriate authorisation to take such action.

PN26

The particulars of the action proposed under the notice are for the employees knows as "clerical employees" to take action in the form of a 90-minute stoppage of work commencing at 9 am, tomorrow, that is Wednesday, 18 September. Again it is alleged - it is not alleged, it is a matter of fact, that the company convened meetings of the employees, Mr Sciacca attended those meetings and Mr Sciacca made a number of statements that we allege were designed to call the union into disrepute And ridicule. Furthermore, employees were provided with a copy of a letter dated 13 September, to the union indicating, and I quote, that:

PN27

The company is in receipt of advice that the purported notification of protected industrial action, advice on which you seek to rely, is deficient...

PN28

And it goes on to say that and it was:

PN29

...putting the union and its members on notice that should members of the union participate in an illegal stoppage of work, those employees will be subject to disciplinary action for breach of their contract of employment.

PN30

I end the quote there. The union caused correspondence to be forwarded to the company yesterday, and I'd seek to provide a copy of that.

PN31

THE DEPUTY PRESIDENT: Yes. Mr Richardson, do you have copies of the notice to take the protected action? I think I heard you say it was filed in the Melbourne Registry, it has not yet caught up with the file here.

PN32

MR RICHARDSON: Perhaps I could also provide a copy of that, your Honour.

PN33

THE DEPUTY PRESIDENT: Thank you. I think in the circumstances I will admit the notice - sorry, the notification of protected action and the accompanying notice of giving - authorisation. I will mark those two together as NUW2.

EXHIBIT #NUW2 NOTIFICATION OF PROTECTED ACTION AND ACCOMPANYING NOTICE OF AUTHORISATION

PN34

MR RICHARDSON: If I could ask that the correspondence to Mr Gavan, dated 16 September be marked as an exhibit.

PN35

THE DEPUTY PRESIDENT: Yes. Mr Gavan, you have no objection to that course of action?

PN36

MR GAVAN: No, your Honour.

PN37

THE DEPUTY PRESIDENT: No, then that will be NUW3.

EXHIBIT #NUW3 CORRESPONDENCE TO MR GAVAN DATED 16/09/2002

PN38

MR RICHARDSON: Your Honour, the purpose of the letter that has been marked as NUW3, was to clearly indicate to the company that, notwithstanding the fact that the union did not believe its notice was deficient, that it would not be the intention of the union and therefore its members to take unprotected action and the company was asked or requested to elaborate upon or provide its advice which led them to the conclusion that the notice was deficient.

PN39

It went on further to foreshadow in another jurisdiction, should the company proceed to commence a disciplinary process against the said employees. Your Honour, I provide most of that information by way of background to illustrate fundamentally one point, or two points. That is, that the company has consistently ignored requests from the union in respect of the clerical employees since late July. That has included not responding to correspondence and also choosing to adopt a particular attitude in reaction or in response to the initiation of a bargaining period and a subsequent notice of protected action.

PN40

The company has failed to provide any reasons, cogent or otherwise, as to why it will not enter into negotiations with the union in respect of these employees and further, why it claims that even the notice of protective action or the bargaining period which underpins that notice, is in any way deficient. We strongly assert that the company's behaviour over the last few weeks and Mr Sciacca's behaviour we allege, in particular, has been designed to place the employees under considerable duress and considerable strain with a few to discouraging them from exercising any rights they might have under the Act as members of an organisation or simply as employees of the company.

PN41

Those matters will be brought to a head tomorrow morning as a consequence of the notice of intended action. The request for a compulsory conference today, and certainly the union has no objection to going off the record, is to see if some sanity can prevail and it is largely for those reasons we sought directions to have Mr Sciacca attend for the company this afternoon. I seek to add one final point and that was that I indicated that the union alleges that Mr Sciacca has, on Friday of last week at a meeting of employees, placed the union, or put the union in a position of some ridicule.

PN42

Given the fact that these employees are currently covered by an award of the State jurisdiction, even though that is a Common Rule Award, it is an award to which the NUW has no automatic rights, it was also considered prudent by the union to issue the service of a log of claims commonly known as an ambit log of claims, designed to provoke the Commission's jurisdiction at another time, pursuant to section 99 of the Act. Mr Sciacca took it upon himself to selectively quote from that log of claims as an example, in his view, of the stupidity of the union.

PN43

Now, I don't believe it is necessary to make any submissions as to the purpose around the log of claims and it is unfortunate that people not versed in industrial relations law or industrial relation developments do tend from to time to over-react to those things but, taken in conjunction with the other behaviour of the company, we simply seek at this stage to place that on the record, if the Commission pleases.

PN44

THE DEPUTY PRESIDENT: Mr Richardson, just in terms of when you say: sanity to prevail, I think was your expression, what would that mean in practice?

PN45

MR RICHARDSON: Well, we would prefer, ideally that the company simply moved on and sat down as it is in respect of the store workers and as it is in respect of the other occupational groups and endeavour to reach an agreement for certification. To date they won't even meet with us. The company clearly has some issues. It has raised one or two of those in the conference proceedings but has failed to take any action thus far to call into question the ability of the union to represent those employees and given that those employees are under an enormous amount of, we say duress, and an enormous amount of strain as a consequence of company actions, should we not be able to proceed today with some commitments or understandings about how things might proceed, we will be pressing the Commission to consider making directions which would have that effect. In short, we would prefer to negotiate an agreement, if the Commission pleases.

PN46

THE DEPUTY PRESIDENT: Thank you. Mr Gavan, what is the employer's respective view?

PN47

MR GAVAN: Thank you, your Honour. If I may just address a couple of the particular remarks that Mr Richardson has made in his submission. There are a couple of things first of all I would like to place on record that the company categorically refutes any suggestion of anti-union behaviour or statements or duress in the meetings that we have been having with our employees. It is quite acceptable for employers to talk to their employees in these sorts of circumstances and we are endeavouring to work through with those employees what the issues are that they have as concerns. So if I might just place that on record.

PN48

Secondly, in as far as the matter of the petition that was circulated to the employees, those - Mr Richardson failed to mention that those same employees had on a number of occasions in discussions with Mr Sciacca had indicated that they had no intention of taking any industrial action and then along came the notice of protected industrial action and people were asked really to put up or shut up in terms of whether you were telling us what you really intend to do or whether you are not. As far as the protected action notice is concerned I note that the letter that we received from the union yesterday, we did not actually get an opportunity to reply to that letter and in fact we were developing a response to that letter yesterday afternoon when I was advised of the listing of this conference today.

PN49

So we thought that we would wait until we saw what the context of this conference would be before we actually prepared that response. We are prepared to respond to the letter that the union sent to us yesterday and we don't have any difficulty with that but I have got some particular advice that the company received that I will need to go to and we would respond in writing, your Honour, on that. As far as in general - - -

PN50

THE DEPUTY PRESIDENT: So does that mean you are not in a position to - - -

PN51

MR GAVAN: To respond to that letter.

PN52

THE DEPUTY PRESIDENT: - - - to confirm the base upon which you say the notice is not protected?

PN53

MR GAVAN: We would prefer to respond to the letter of yesterday from the NUW in writing, your Honour - and can I just generally say, your Honour, that this - and Mr Richardson acknowledges as well, that this has come on very quickly - - -

PN54

THE DEPUTY PRESIDENT: Yes.

PN55

MR GAVAN: - - - and I must say that we are somewhat confused as to the position we find ourselves in in that most of what we have heard from the NUW has actually been ventilated before when we had the hearing 2 weeks ago on 4 September with Senior Deputy President O'Callaghan.

PN56

MR RICHARDSON: Your Honour, I only rise - and I accept that there has been some repetition but that was a private conference and as such it seemed both prudent to place what the union saw as the key matters on the record and also for the company to respond. Now, the company did say certain other things before his Honour, Senior Deputy President O'Callaghan, but it is not appropriate for the union to say what the company said in a conference, that would be - well, it would undermine the entire process. If the Commission pleases.

PN57

THE DEPUTY PRESIDENT: Yes, and both those will appreciate that I haven't been privy to any of that. So obviously I am keen to get a handle on what both parties say are the - is the background to the matter and the issues at hand.

PN58

MR GAVAN: Okay, thank you, your Honour. If I can place on record, your Honour, that the company does not wish to negotiate an agreement with the NUW in relation to the employees concerned. We have stated that a number of times now, what took place prior to July - I think what Mr Richardson said, what took place prior to July this year was under the control of an employee who is no longer with the company and if I might suggest that that employee was perhaps operating outside his authority. However, we are now confronted with the situation whereby we have got somewhat a bit of a dispute with the union about this.

PN59

It is quite clear from the company's perspective that we do not wish to negotiate an agreement with the NUW and furthermore we do not negotiate with any union while there is impending industrial action such as what is in place at the moment. In other words we are not in the business of negotiating with guns at our heads.

PN60

THE DEPUTY PRESIDENT: Obviously the "gun at your head" to use the expression you have just used, has been placed only recently - - -

PN61

MR GAVAN: Yes, the protected action notice you mean?

PN62

THE DEPUTY PRESIDENT: Yes, yes. What is your objection per se to having an agreement with the NUW or recognising the NUW as a representative?

PN63

MR GAVAN: Commissioner, we just don't believe that they have the capacity to represent the employees concern.

PN64

THE DEPUTY PRESIDENT: So by that you mean they don't fall within the Union's Constitution?

PN65

MR GAVAN: Correct - and if I might press on, your Honour. In respect of the protected action notice the action is set down for tomorrow and it would be indeed unfortunate if that action goes ahead because the company has received advice that the action - proposed action or purported protection action, would not in fact be protected at all and then we find ourselves in a very difficult position in respect of those employees and of course in respect of the union itself. So I suppose if I might just ask your Honour, what is it that the NUW is asking the Commission to do today?

PN66

Is it seeking orders or directions of some sort to bring us to or to be forced to negotiate with them. That is the fundamental question that I believe that we need to answer here today, your Honour. If the Commission pleases.

PN67

THE DEPUTY PRESIDENT: Mr Gavan, in relation to the notice of protected action, I must say that I think it is actually in the interest of both parties to have out on the table the issues associated with any deficiencies that might apply in that and I say for both parties because you will appreciate that the NUW has already indicated that they don't propose to take unprotected industrial action. They have effectively invited you to tell them why it is unprotected. Secondly, as I understand it, you have foreshadowed a disciplinary action, now, of course if disciplinary action were to be taken and the action were to be found to be protected industrial action that would obviously raise significant issues for the company in terms of the Workplace Relations Act.

PN68

So in that context it would seem advisable that there be an open and frank discussion about the deficiencies or otherwise in the protected action notice, particularly given the NUWs indication that they don't propose to take unprotected action. If you are able to persuade them that it is unprotected then that may advance the immediate issues and obviously that does not however resolve the major issues between the parties but nevertheless I think what I have just said is an appropriate reflection of the present circumstances.

PN69

MR GAVAN: Your Honour, would it assist if we make the offer to write to the union with those - the response to their letter of yesterday in respect of what the deficiencies in their notice are?

PN70

THE DEPUTY PRESIDENT: And when could you do that?

PN71

MR GAVAN: I beg your pardon?

PN72

THE DEPUTY PRESIDENT: When could you do that given the actions - - -

PN73

MR GAVAN: I could have something first thing tomorrow morning to their office.

PN74

THE DEPUTY PRESIDENT: Because as I understand it their action is what? 9.30 tomorrow, is that the proposed - - -

PN75

MR RICHARDSON: That is correct, your Honour. The - perhaps the question that ought be asked from the bench of Mr Gavan, is what form does the advice he currently has takes?

PN76

THE DEPUTY PRESIDENT: What do you mean? Whether it is legal advice?

PN77

MR RICHARDSON: Well, whether it is advice in a written form or otherwise, I mean if it is in a written form, whether it comes from a practitioner or from counsel, it would probably answer the question without the niceties of a covering letter. Of course there would be questions of privilege if there - - -

PN78

THE DEPUTY PRESIDENT: Well, precisely.

PN79

MR RICHARDSON: - - - if it were legal but I make the point the letter to Mr Gavan was forwarded to him at approximately 9.30 yesterday morning. I appreciate his day-to-day may have been disturbed or the last hour of the normal working day yesterday but I really think and I do strongly suggest given that I have observed Mr Gavan and the company's behaviour for the last few weeks, that simply seeking to provide it to us some time prior to 9.30 tomorrow morning is, I suggest with respect, an attempt to avoid actually saying it here on the record and that is what we would really like - that comes to the nub of why we are here.

PN80

We understand the company has put it on the table that their questions of constitutional coverage, it said that in conference but it was encumbered upon them to say that on the record given that those proceedings were in the form of private conference. We strongly refute that, the company has chosen not to make an application to bring about a termination of the bargaining period as such but is now seeking to, in a very coy manner say well: We believe the action is unprotected. It is interesting to note Mr Gavan has not said we believe the action is unprotected because we question the ability of the union to generate the bargaining period in the first place.

PN81

So there must be something else going on, that is what we need to understand so that we can in turn advise employees as to whether in our view and having regard to our counsel, the action proposed for tomorrow is protected or not but also in order to contemplate other forms of relief that might be available if disciplinary action proceeded. If the Commission pleases.

PN82

THE DEPUTY PRESIDENT: All right. Mr Gavan?

PN83

MR GAVAN: Your Honour, in respect of the protected action notice, there - our advice as I said, is that it is deficient and I don't believe that it is our role to correct the deficiencies for the union in this matter. As I said, we are quite happy to put something in writing to the union and I will undertake to have that to the local office by 8.30 tomorrow morning but unfortunately as you would realise that we are a bit pushed for time at this end of the day and will be pushed for time again at the commencement of tomorrow, so it would be awkward to make any suggestion that I can get anything to them prior to that and that would be about the earliest that I would be able to do it.

PN84

THE DEPUTY PRESIDENT: All right, Mr Gavan, I need you to be quite open with me here. Are you - what is the difficulty with disclosing the terms upon which you take objection to the notification of protected action? Is it that you don't wish to put in on the record given that you are going to communicate by 8.30 tomorrow - - -

PN85

MR GAVAN: I would prefer to put it in writing, your Honour.

PN86

THE DEPUTY PRESIDENT: Yes, but what - I can't understand the - I don't know what the difference is?

PN87

MR GAVAN: Well, most of our correspondence in this matter so far has been written, so I would like to keep it in that vein.

PN88

THE DEPUTY PRESIDENT: Well, that is true. Well, this is being recorded, this will be on the record as much as a letter. Are you - I don't understand that you want to take further advice about that, tell me if I'm wrong but are you relying on the advice that you have already received.

PN89

MR GAVAN: Well, that is correct, your Honour, I would have to go back and look at the advice and then formulate something from that.

PN90

THE DEPUTY PRESIDENT: I must say, my understanding of your position more fully if you were saying that you are not prepared to disclose the advice, I mean I would have difficulty with that I must say for reasons I alluded to earlier but given that you - - -

PN91

MR GAVAN: No, I'm not saying that, your Honour - - -

PN92

THE DEPUTY PRESIDENT: No, I understand.

PN93

MR GAVAN: - - - what I'm saying is, that we would want to formulate a proper response.

PN94

THE DEPUTY PRESIDENT: Well, presumably that could be done tonight if necessary, using the facilities that the Commission can provide.

PN95

MR GAVAN: If I were able to get hold of the people at this time of the day, your Honour, that might be possible, but it might not also be possible.

PN96

THE DEPUTY PRESIDENT: Well, Mr Gavan, I will make the same invitation that I have to Mr Richardson, I mean how would you see the matter being progressed in some forum or in some way here?

PN97

MR GAVAN: How would I see what?

PN98

THE DEPUTY PRESIDENT: The matter, the issues being progressed?

PN99

MR GAVAN: From here?

PN100

THE DEPUTY PRESIDENT: Yes.

PN101

MR GAVAN: As I have suggested, we can respond to the union and it can decide what it wants to do from there.

PN102

THE DEPUTY PRESIDENT: Obviously you have a dispute and I use that term in the broadest sense of the word. You have a dispute about the NUWs capacity to represent the employees, how do you propose that be resolved? I mean as I understand it, you basically - the approach that you are taking is that not to recognise the NUW and basically then carry on without regard to their potential interest in the matter?

PN103

MR GAVAN: Yes, your Honour, if I may suggest that we take a short adjournment and I will see if I can get hold of those people that provided the advice and I may not be able to - - -

PN104

THE DEPUTY PRESIDENT: Yes.

PN105

MR GAVAN: - - - I must say.

PN106

THE DEPUTY PRESIDENT: All right, well, I think that might be useful - a useful start and we will see where that takes us. Perhaps we will then resume back on the record but shortly thereafter I would still propose to adjourn to a private conference and see whether we can make some progress. All right, so we will adjourn for 10 minutes or so and see where that takes us.

PN107

MR GAVAN: All right, thank you, your Honour.

SHORT ADJOURNMENT [5.09pm]

RESUMED [5.25pm]

PN108

THE DEPUTY PRESIDENT: Yes, please be seated gentlemen. Yes, Mr Gavan?

PN109

MR GAVAN: Your Honour, I wasn't able to contact the people who I needed to contact in order to get the full advice that we are looking for so I don't know whether we can go much further today. I have as I said, made an undertaking that we will send something to the union in the morning in respect of its purported protection action notice and I will do that by 8.30 in the morning if that is okay by the Commission, and in the meantime we will seek further advice.

PN110

THE DEPUTY PRESIDENT: Mr Richardson?

PN111

MR RICHARDSON: Well, I suppose in some respects, one has to take Mr Gavan at his word. However, there are still a series of directions that we will be pressing for given that the employees are still subject to the threat of disciplinary action. However, I'm not sure if we want to proceed into conference to discuss those in the first instance or continue on the record.

PN112

THE DEPUTY PRESIDENT: Well, I'm in the hands of the parties, obviously I don't know what it is you're going to press for. Perhaps it might be appropriate while we are on the record if you were to outline perhaps what it is you might be seeking and on what basis and then if Mr Gavan is in a position to respond broadly I will provide that opportunity, if not, we will go off the record and see if we can advance matters.

PN113

MR RICHARDSON: Your Honour, in essence the union would be seeking four things. The first of those has been dealt within insofar as Mr Gavan has given an undertaking to provide to the union by 8.30 tomorrow morning, written advice as to why he believes the notice of action to be deficient. The second relates to, should that action proceed, whether or not the company ought be directed to elaborate on what the form of disciplinary action it is threatening to take should the employees proceed to take action tomorrow.

PN114

I say that because ultimately this isn't about, as Mr Gavan suggests, the union asking the employer to identify deficiencies so that they can be rectified, it is about the union ensuring at all times as an organisation registered under the Act, that it complies with the Act, but also at this point in time and I accept that it is a matter for another jurisdiction, our submission is that the Act favours the union, that the onus is upon the employer in the event of alleged breaches under section 170MU to demonstrate otherwise and at this point in time, all the company has indicated is that should action occur, employees will be subject to disciplinary action.

PN115

Now, clearly the company has contemplated what that action might be. We say there can be no room for uncertainty as to the form of the action and therefore there must have been some consideration to what the penalty might be. Because the ability for the union to seek relief in other places is effectively now limited to 1 hour if that, tomorrow morning.

PN116

The third matter goes, in part, to the correspondence of 16 August which, I think, was marked as an exhibit NUW1 but also Mr Gavan's comments on the record, which were to the effect that the company had been endeavouring to work through with the clerical employees what their concerns were as part of an agreement, so we would seek a direction to the effect that the company also provide written advice to the union and the employees as to what form of agreement, if any, it seeks to have applied to its clerical employees.

PN117

Again, and the fourth point - although I've said that it has already been stated on the record - is that subject to receipt of those, we would seek that the company also provide written advice as to whether or not it is prepared to negotiate an agreement with the union and the employees for the making of an agreement that would be certified pursuant to the Workplace Relations Act. The company is, in our submission, intentionally vague and intentionally evasive as to answering those issues.

PN118

Now, if necessary, I will also press for Mr Sciacca to give witness evidence as to what he meant by the letter of 16 August, and also in respect of the allegations that have been made from the bar table, if the Commission pleases.

PN119

THE DEPUTY PRESIDENT: Mr Richardson, given the nature of these proceedings, what do you say would be the power of the Commission to issue any directions?

PN120

MR RICHARDSON: We say the power derives from section 111 because these are, effectively, conciliation proceedings and section 170NA empowers the Commission to exercise powers under part 6 generally and, in effect, what the union is seeking is no more than directions. It is not seeking orders or relief in the form of orders. Of course, it is open to the company to ignore those directions. However, those are then matters that may augur in the union's favour in another place.

PN121

Generally, we would be seeking the exercise of either section 111(1)(t) - if the Commission will bear with me at the moment. It is not as referred to as it used to be, or 111(1)(d), if the Commission pleases.

PN122

THE DEPUTY PRESIDENT: Thank you. Mr Gavan?

PN123

MR GAVAN: Your Honour, those are the particulars that we would have liked to have had this time yesterday about what the union is actually seeking here. I will need to get advice on those particular directions that are being sought, your Honour. If I might, Mr Richardson, I believe, has a copy of those there. If I might be able to obtain a copy of those, I will get advice on those. However, can I just place on record that we believe the union is taking our employees down a pretty dangerous path here, and we would place them on record that - place them on notice that we would intend to take action against the employees concerned and against the union concerned if the action goes ahead. It is our strong suggestion that the union withdraws its action, if the Commission pleases.

PN124

THE DEPUTY PRESIDENT: So when you say you want to take advice - - -

PN125

MR GAVAN: Further advice in relation to those directions sought.

PN126

THE DEPUTY PRESIDENT: Well, let us just work through them one by one. In relation to the first one, I think you have already given that undertaking so that is - - -

PN127

MR GAVAN: Yes.

PN128

THE DEPUTY PRESIDENT: - - - effectively dealt with. The second one being an indication or a request that you be directed to confirm the nature of the action that has been threatened by the company in the event that the action proceeds and is, presumably, unprotected. Thirdly, an indication that you should be directed to confirm under what basis you are proposing to advance an agreement, presumably directly with your employees. Lastly, again, I think your position on that is reasonably clear - that you have already indicated that you are not willing to negotiate with the NUW, so that effectively only leaves us with two matters.

PN129

Firstly, the nature of any action, disciplinary action, that may be taken. I think that is the term that is used in the correspondence and, secondly, the nature of the instrument that you would propose to enter. Now, you say you want to seek further advice in relation to those two matters?

PN130

MR GAVAN: That is correct, your Honour.

PN131

THE DEPUTY PRESIDENT: All right. Would your time frame that you have given in relation to the first matter also be accommodated in relation to the last - in relation to the two remaining matters, that is, if you were - - -

PN132

MR GAVAN: Do you mean by 8.30 tomorrow morning?

PN133

THE DEPUTY PRESIDENT: I do.

PN134

MR GAVAN: It could be extremely difficult because of the time frame that we have to work with now, your Honour. If we had known the directions sought by the union this time yesterday, we might have had a chance to get some advice on it before now.

PN135

THE DEPUTY PRESIDENT: Mr Richardson, do you wish to say anything further before I go off the record?

PN136

MR RICHARDSON: Only this, your Honour, that, firstly, given that we are on the record, the union repeats it is not our intention to have anyone engage in unprotected action. However, the somewhat heavy handed attitude of Mr Gavan requires response. Our primary desire in these proceedings and after these proceedings is to protect the interests of the employees. The union isn't too concerned about what damages might follow from a 90 minute stop work in respect of it as an organisation. In fact, in some ways, proceedings that Mr Gavan is foreshadowing will probably ultimately resolve several of these matters.

PN137

The employees that we have at heart here, and that is why we say their employer should be clear and unambiguous about what it intends to do and the reasons for that. The other point that I make is this, that except to some extent that Mr Gavan requires or needs an opportunity to seek advice or counsel on these matters, it is somewhat ironic that he comes here and says: well, we can't give the union what we were going to give them because of these proceedings, but then seeks to have a go at the union because it didn't declare the relief it would be seeking prior to the proceedings, if the Commission pleases.

PN138

THE DEPUTY PRESIDENT: Gentlemen, what I propose to do is to adjourn into private conference. I would indicate that the reporter should, nevertheless, stand by in case we decide to proceed back on the record, but the Commission will be adjourned into conference for the moment.

OFF THE RECORD [5.30pm]

RESUMED [6.15pm]

PN139

THE DEPUTY PRESIDENT: Yes, thank you, gentlemen. Look, having convened proceedings in private conference, this is my understanding of the status of affairs. It is my intention to reconvene this conference at 8.30 am tomorrow morning, at which time I will hear a report from the parties as to their respective positions. Part of that context is Mr Gavan, you have given an undertaking that you will confirm your position in relation to the alleged efficiencies in the Notification of Protected Action by that time and that you intend to do so in writing and provide that to the union at or before that time.

PN140

You will provide whatever answer you can in relation to the other two matters which the union outlines as to the formal clarification they were seeking, that being the nature of the threatened disciplinary action which has arisen in the context of correspondence between the parties, and lastly, the nature of the form of the instrument that the company is intending to pursue with its employees. Now, does either party wish to say anything further? All right. Very well then, the matter will resume at 8.30 am tomorrow morning.

[6.20pm]
ADJOURNED UNTIL WEDNESDAY, 18 SEPTEMBER 2002

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #NUW1 MATERIAL ON IGA LETTERHEAD DATED 16/08/2002 PN17
EXHIBIT #NUW2 NOTIFICATION OF PROTECTED ACTION AND ACCOMPANYING NOTICE OF AUTHORISATION PN34
EXHIBIT #NUW3 CORRESPONDENCE TO MR GAVAN DATED 16/09/2002 PN38