BP2002/4782, Transcript of Proceedings [2002] AIRCTrans 3918 (2 October 2002)

AUSCRIPT PTY LTD
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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

8.40 AM, WEDNESDAY, 18 SEPTEMBER 2002

Continued from 17.9.02

PN141

THE DEPUTY PRESIDENT: Yes, good morning, gentlemen. Yes, who would like to report?

PN142

MR GAVAN: If I may, your Honour, at the closure of yesterday's proceedings I undertook to prepare a couple of notices for the union and I have those notices here. The first relates to a response to the union's request for details of where we considered their protected action notice is deficient and I have that here.

PN143

THE DEPUTY PRESIDENT: Yes.

PN144

MR GAVAN: And if I may, your Honour, ask for some copies to be made by your associate because I really only have the two here which are the originals would go to the union of course. And the second matter, your Honour, relates to what proposed disciplinary action the company may wish to take against those employees who when and if they take some form of industrial action this morning, we've addressed that in a letter to the union as well.

PN145

In respect of, if I may, the third issue which came out yesterday in respect of the form of the instrument that we intend to apply to the employees concerned, I did not have full opportunity to seek further advice on it but if I can just say that the company is considering all of the options that are available to it, including options through the state legislation, through the federal legislation as the Workplace Relations Act and at common law. Thank you. It might be appropriate, your Honour, if the union looks at the letters and then comments accordingly.

PN146

THE DEPUTY PRESIDENT: Certainly.

PN147

MR RICHARDSON: Well, your Honour, if I could address the proposed disciplinary action letter first and perhaps it would be appropriate that both letters are marked as exhibits.

PN148

THE DEPUTY PRESIDENT: Any objection to that course of action?

PN149

MR GAVAN: I'm sorry, I didn't hear that, your Honour.

PN150

THE DEPUTY PRESIDENT: Mr Richardson is seeking that the documents be formally admitted into the file as exhibits, that is your two letters.

PN151

MR GAVAN: No, I have no objection to that, your Honour.

PN152

THE DEPUTY PRESIDENT: Perhaps then they are your documents, I will mark them that way.

EXHIBIT #IGA1 LETTER DEALING WITH NOTICE OF PROTECTED ACTION

EXHIBIT #IGA2 DISCIPLINARY ACTION LETTER

PN153

MR RICHARDSON: Thank you, your Honour. If I could go to IGA2 first, it does not appear to actually answer the question that the union sought and that Mr Gavan undertook to respond to in that it simply refers to a consideration of all available disciplinary action arising under the current instrument and the law. I appreciate that the letter wasn't tendered yesterday and that is because the union didn't have a copy but the earlier advice to the union was that should any action occur, employees would be subject to disciplinary action for breach of their contract and that should any further breaches occur, further disciplinary action may follow, including the possibility of termination of employment.

PN154

So it appears that the company has widened its scope rather than narrowed it and avoided actually specifying what shape or form that action might take. In respect to the letter that has been marked as IGA1, on the face of it again we say that it does not answer the questions sought but perhaps Mr Gavan is in a position to answer those on the record.

PN155

It is unclear to the union based on an initial reading of the letter and the Act as to whether the company foreshadows that it may rely on subsection (1) of section 170NN insofar as the employees themselves are not protected by virtue of their earlier assertions that the union lacks constitutional coverage or whether there is some inference that the action is occurring in concert with other parties. Perhaps Mr Gavan could clarify that, given that the letter does not make that clear to the union, if the Commission pleases.

PN156

THE DEPUTY PRESIDENT: Mr Gavan?

PN157

MR GAVAN: Your Honour, in respect of the letter IGA1 relating to the protected action notice, with respect to yourself, your Honour, and to the Commission we don't believe it is the company's role to instruct the union where its deficiencies are in the notice. We have undertaken as we did yesterday to put a letter to the union saying - where we specifically say that there are some deficiencies. We've done that and now we believe it is incumbent on the union to do its research. It is not our place to do the job for them.

PN158

THE DEPUTY PRESIDENT: So where do we go, gentlemen?

PN159

MR RICHARDSON: Well, I just make the point on the record that Mr Gavan gave some commitments last night that were not designed for the union to overcome deficiencies but to explain where it saw deficiency occurred. Now, he alleges in his letter that a deficiency exists by virtue of 170M(1). There are a couple of options available under that subsection. Surely Mr Gavan should be able to identify which or more than one which he relies upon and I note that he has not responded to our concerns in respect of the disciplinary action, if the Commission pleases.

PN160

MR GAVAN: Your Honour, if I might just say that as far as the letter IGA2 is concerned, and that is the one in relation to the protection action if I'm not mistaken, where - - -

PN161

THE DEPUTY PRESIDENT: In relation to the disciplinary action.

PN162

MR GAVAN: I beg your pardon. Then it is IG1 that I'm talking about.

PN163

THE DEPUTY PRESIDENT: Yes.

PN164

MR GAVAN: The company is not prepared to offer any more assistance to the union in interpreting what that letter means and as far as the disciplinary action is concerned, your Honour, at this point in time there's been no disciplinary - there's been no industrial action. So therefore we are not really in a position to know exactly what we should do. When and if there is industrial action then we will consider what is appropriate in the circumstances with the individuals concerned, if the Commission pleases.

PN165

THE DEPUTY PRESIDENT: Mr Gavan, just in relation to the form of instrument, you will appreciate that perhaps other than with respect to your common law option each of the other options will require a process to formally commence. I take it that you are in the middle of a process of some description. Do I take it that you have not formally commenced any process, given that you have left all the options on the table?

PN166

MR GAVAN: Your Honour, we are reconsidering all of our options available to us, whether they be state, federal or at common law. I note from the discussion yesterday that the union sought to have us confirm that the letter of 16 August related to a proposal for a section 170LK agreement. By its very nature that would now have lapsed anyway because there was no ballot taking place on that proposal and that proposal is now, well, a month old.

PN167

THE DEPUTY PRESIDENT: Well, I'm not sure that necessarily follows but you obviously did and your formal notice is required under section 170LK in any event.

PN168

MR GAVAN: We didn't provide any formal notice to employees, your Honour. What we were doing in the process of that meeting on 16 August and the letter from Mr Sciacca was to canvass options with the employees. That was the proposed option at that time but clearly that never went to a formal 170LK offer which obviously requires a full document to be tabled in respect of what the terms and conditions of employment would be and the employees be given the opportunity to vote on that and that has not occurred.

PN169

So therefore in my understanding of section 170LK is that that offer would now have lapsed.

PN170

THE DEPUTY PRESIDENT: Yes, Mr Richardson?

PN171

MR RICHARDSON: Your Honour, I don't wish to take this much further but if Mr Gavan might just clarify when he says all options, does that mean he includes contemplation of an agreement under division 3 and also possibly an agreement made pursuant to section 170LJ?

PN172

MR GAVAN: All options are being considered, your Honour.

PN173

MR RICHARDSON: I simply note for the record that that means the company's position has changed from yesterday, that it now contemplates as one possible option a negotiation of an agreement that would be a finding upon the NUW and made with the NUW and afford Mr Gavan the opportunity to respond.

PN174

MR GAVAN: I'm sorry, I didn't hear. Your Honour, I have a hearing disability.

PN175

THE DEPUTY PRESIDENT: All right.

PN176

MR GAVAN: If Mr Richardson could repeat that for me?

PN177

THE DEPUTY PRESIDENT: Yes, Mr Richardson?

PN178

MR RICHARDSON: I simply note that Mr Gavan has indicated that all options have been explored and that as such that includes the possibility of an agreement made under division 3 or alternatively an agreement made pursuant to section 170LJ and that that is inconsistent with what the company said yesterday in proceedings that it would not enter into an agreement with the union and afford Mr Gavan an opportunity to clarify his comments.

PN179

MR GAVAN: Your Honour, if I may, at the closure of yesterday's proceedings I indicated that we would be considering all options and that we would seek advice on that and when I came in here this morning I said I've not had the opportunity to get full advice on that at this stage. However we do place the union on notice that we are looking at all of the options that are available to us.

PN180

THE DEPUTY PRESIDENT: Including that option. I think that is the point of the clarification.

PN181

MR GAVAN: Let me say from the outset, and we have said from the outset, that it is not our intention to reach a certified agreement with the NUW. If that was the question then that is the company's answer.

PN182

THE DEPUTY PRESIDENT: Well, the question is whether or not that is one of the options I think.

PN183

MR GAVAN: Well, I'm sorry, to be clear, no it is not. It is not our intention to do that.

PN184

MR RICHARDSON: Well, Mr Gavan, is clearly engaging in misleading the Commission and the union. I mean he either does not understand the Act or he chooses to phrase his words accordingly. Your Honour, subject to anything you may have to say, I think it is prudent that the union consider the advice.

PN185

For the sake of the record our view would be that there is no deficiency pursuant to the section of the Act the company relies upon and given that that action at this point in time is proposed to commence in just over 30 minutes, I would seek that these proceedings be adjourned but in doing so I would like some understanding from Mr Gavan as to when a full opportunity would have arisen to consider what form of agreement the company is contemplating and whether or not Mr Gavan will be communicating that to the union and if so, in what form.

PN186

Subject to that, because Mr Gavan has made a number of statements this morning as to the purpose of the letter dated 15 August, we pressed on a number of occasions while Mr Sciacca was here to have that letter actually explained. It seems now that the company has decided to adopt a different interpretation on that letter and we would foreshadow that we may be seeking as we did yesterday to have Mr Sciacca return to these proceedings for the purpose of providing evidence to the Commission, if the Commission pleases.

PN187

THE DEPUTY PRESIDENT: Mr Gavan, I think other than the matter that was just raised, that is the question of putting you on notice about that.

PN188

MR GAVAN: I'm sorry, your Honour.

PN189

THE DEPUTY PRESIDENT: Well, Mr Richardson has just put you on notice about something they may seek to do in terms of Mr Sciacca's understanding of the earlier correspondence. Putting that aside for the moment, my understanding is Mr Richardson sought some indication from you as to when you would be in a position to confirm options in terms of the nature of the instrument and if so, whether you will confirm that to the union.

PN190

MR GAVAN: We are not prepared to comment on that at the moment, your Honour, because we need to take advice on it.

PN191

THE DEPUTY PRESIDENT: Well, advice on whether you will let - - -

PN192

MR GAVAN: On what options might be the best options for us to go forward.

PN193

THE DEPUTY PRESIDENT: Yes. No, I understand that. The question is at what stage do you think you will be in a position to declare your hand on that and when you have, will you be declaring your hand openly, including to the union?

PN194

MR GAVAN: I don't believe that we are in a position to commit to anything on that at this stage, your Honour.

PN195

MR RICHARDSON: Your Honour, I'm conscious again that these proceedings aren't going far but I note that that is a different attitude to that adopted by the company yesterday. If my memory serves me correctly, yesterday evening the company was of a mind that it would consider and seek advice on that question and respond in due course but could not commit to responding by this morning. Now it appears that it is: well, you know, we may not even respond. And, you know, I just strongly detect that there is an air of inconsistency in the behaviour of the company.

PN196

Whether that is because of some other motive or not I'm unsure but I think Mr Gavan has an obligation to act in a consistent manner, given that we are in part in formal proceedings. That is not to say that informal proceedings should be any different but, you know, if that is the case I would press for that aspect of the directions to be contemplated and made by the Commission.

PN197

THE DEPUTY PRESIDENT: Mr Gavan, do you want to be heard on that?

PN198

MR GAVAN: Your Honour, might I say that we've got very little else that we want to say in this matter. We are conscious of the time that there's in fact proposed industrial action starts in little over half an hour. We are concerned that that action appears as though it is going to go ahead. I believe that there's some discussion taking place with the employees right now to try and avert that and I would respectfully request that we be given the opportunity - that I be given the opportunity to get back to the site and to deal with that matter accordingly.

PN199

THE DEPUTY PRESIDENT: Well, I think the union is in the same boat of course but do you wish to be heard as to whether or not a direction should be issued in respect of declaring your hand in terms of the nature of the instrument being sought?

PN200

MR GAVAN: No, at this stage, your Honour, we are not sure what our hand is going to be.

PN201

THE DEPUTY PRESIDENT: I understand that. The union though has requested that you be directed - - -

PN202

MR GAVAN: No. Well, we are not prepared to do that.

PN203

THE DEPUTY PRESIDENT: All right. Well, look I will consider that matter and advise the parties in due course. I will also adjourn the proceedings with liberty to apply.

ADJOURNED INDEFINITELY [9.00am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #IGA1 LETTER DEALING WITH NOTICE OF PROTECTED ACTION PN153
EXHIBIT #IGA2 DISCIPLINARY ACTION LETTER PN153