C2002/1547, Transcript of Proceedings [2002] AIRCTrans 4980 (10 December 2002)

AUSCRIPT PTY LTD
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TRANSCRIPT OF PROCEEDINGS

O/N VT910
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER EAMES

C2002/1547

BANKING SERVICES -
ANZ GROUP AWARD 1998

Application under section 113 of the
Act by Australia and New Zealand Banking
Group Limited to vary the above award

MELBOURNE

10.02 AM, WEDNESDAY, 27 NOVEMBER 2002

Continued from 24.4.02

PN898

MR M. McDONALD: I seek to appear as counsel, pursuant to leave, which previously was granted to Mr Bunting when the matter was initially before you. And I am here today with MS K. REID, and MS J. HARVEY.

PN899

MR P. GARDNER: I seek leave to appear, and with me is MS M. MALONEY, and MR P. LARAGY. Commissioner, can I say that in announcing an appearance, it should not be taken that my client is consenting to the Commission's exercise of any arbitration powers in relation to the matter. I will tell you more about that later.

PN900

THE COMMISSIONER: Lay it out.

PN901

MR GARDNER: And I wouldn't want to steal my learned friend's thunder, but by the same token I want to make it quite clear that, in announcing the appearance today, we don't consent or agree in any way to the Commission's exercise of arbitration power.

PN902

THE COMMISSIONER: Good, Mr Gardner. Leave is granted, anyway, in both cases.

PN903

MR McDONALD: I can't say those observations have knocked me out of my chair with surprise, but, Commissioner - - -

PN904

THE COMMISSIONER: So can we all go home, or is that it?

PN905

MR McDONALD: No, no, Commissioner, things are never so simple in life. Now, you obviously, Commissioner, you have had direct personal involvement in - - -

PN906

THE COMMISSIONER: Yes.

PN907

MR McDONALD: - - - these proceedings, and your decision was the subject of an appeal to a Full Bench of the Commission which handed down a decision on 9 October 2002.

PN908

THE COMMISSIONER: Yes.

PN909

MR McDONALD: And really, there are two issues which emerge from that decision, if the Commission pleases. The first issue which was before the Full Bench concerned the inter-relationship between provisions in the certified agreement and provisions in the award, relating to severance payment. And the question of whether the severance pay entitlements prescribed by the certified agreement were to be read in conjunction with the rights conferred under the award for the bank to make an application in certain circumstances to come to the Commission and seek to vary a severance pay prescription.

PN910

THE COMMISSIONER: Yes.

PN911

MR McDONALD: And indeed, that was the application before you. And the Full Bench determined that, yes, the two lots of provisions, those in the certified agreement and those in the award, could be read together, such that there was an entitlement to come to the Commission to make an application to vary the entitlements prescribed by the agreement. However, the second issue, which no doubt lies at the heart of Mr Gardner's observations, is that the Full Bench found that notwithstanding that construction point, if I could put it that way, section 170N of the Act was a bar to the Commission exercising arbitral powers in relation to that application, because there is an existing bargaining period known to be in existence - bargaining period notice in existence.

PN912

And the Commission was of the view that the subject matter of the bank's application was caught by the terms of that bargaining period notice. However, the Full Bench in paragraph 42 of its decision said this, if I can just read this onto the transcript, Commissioner:

PN913

The application will be re-listed on request, subject to the proviso that there can be no arbitration while the bargaining period initiated by the FSU on 1 May 2001 remains in operation.

PN914

So the Commission has made - the Full Bench has made it clear that the Commission is not in a position to exercise any arbitral powers, but of course, the Commission does have residual powers, both by way of conciliation, but probably more significantly for the purpose of today's proceedings, there is the power under section 111AA of the Act for the Commission to effectively, with the consent of the parties, to engage in a consent arbitration. And that is - such an arbitration is properly characterised as being an exercise of the Commission's conciliation powers rather than its arbitral functions.

PN915

THE COMMISSIONER: Yes.

PN916

MR McDONALD: With that in mind, Commissioner, the bank wrote to Mr Beck, the National Secretary of the FSU, on 9 October 2002. And put to Mr Beck, well, where do we go from here, so to speak. And they put to Mr Beck that, really there were, as the bank saw it, there were two options. One was an agreement to an arbitration, a consent arbitration under 111AA. The second option was for the FSU to modify its bargaining period notice to allow for a fully fledged arbitration to take place under section 113 of the Act. Now, the response to that, what seems to be the response to that correspondence, was that on 1 November of this year the bank received in the mail an application under section 178 of the Workplace Relations Act for award breach proceedings in the Federal Court.

PN917

And the subject matter of the statement of claim lies at the very heart of the proceedings before you, that is, the claim for underpayment of severance pay to two nominated individual employees. The amounts claimed on behalf of those two individual employees are, from memory, about 60,000 and $40,000. I stand to be corrected, but substantial sums, and the flow-on implications are obvious in the sense that there are two nominated individuals. But obviously there is an issue there which has consequences for other employees in a similar situation. Now, I should say this, and we don't shy away from it. That matter I should say, Commissioner, is coming on for a directions hearing in the Federal Court on 13 December. And the bank's position is that it is really very unfair of the union, having regard to the background of this matter and the proceedings in the Commission, to be racing off to the Federal Court to institute penalty and recovery proceedings in circumstances where, effectively, the bank has got one hand tied behind its back, because it is prevented from making an application which the Full Bench has found could be properly made in the terms of the actual terms of the award and the agreement.

PN918

Prevented from making that application because of the extant section 170N notice. And to rub salt into the wounds, the bank - the union races off the to Federal Court. Now, we think that is very unfair and we will have something to say about that on 13 December. But, the reason why we are here today, Commissioner is that we have put the - put the ball in the union's court, so to speak, and we really want them to put on the record what their intentions are in relation to this matter. As far as the bank is concerned it is not going to go away. There is an underlying issue with the merits of the matter which needs to be resolved.

PN919

We have put to the union what we think are sensible proposals for dealing with the matter, and we have heard no response from them, and we think it is incumbent upon them to give a response. And if the matter can go forward, well and good.

PN920

THE COMMISSIONER: Let us see. Mr Gardner?

PN921

MR GARDNER: Commissioner, my client isn't here simply to respond to the urgings of my learned friend. I am going to make two observations. The first is that the proceedings in the Federal Court were in no way responsive, as was suggested, to correspondence from the bank. The second point we make is this. That there was a response to the bank's proposals, and that response was provided by my client's National Secretary, Mr Beck, to Mr Baker. And the substance of the response was why don't - why doesn't the bank return to the table and deal with the real issue, which is the bargaining period, and trying to negotiate a certified agreement, which is the object of the bargaining period.

PN922

Now, that is my client's response. It is quite unashamed about the fact that that is what he wants to do. And for my learned friend to have a whinge about having a hand tied behind his back, really doesn't tell the full story. All his client has to do, is rather than walking away from the negotiations for a new certified agreement, come back to the bargaining table, where my client remains ready, to negotiate. That is my client's response. And the other observation we make is that it is strange indeed that the bank would suggest such a choosy approach. We observed that it was suggested that the consent arbitration under 111A be confined to this one, tiny, but nonetheless important issue, the subject of the bargaining period.

PN923

They didn't propose that all the issues outstanding between the parties be the subject of 111AA arbitration. Now, I am not making any observations about my client's attitude to such a proposal. But it is strange indeed that this one issue might be identified as being appropriately dealt with rather than all the issues between them. So, we say that it is unfair, the characterisation my learned friend seeks to put on the matter before the Commission. The Commission is probably aware that we wrote to Senior Deputy President Watson, I think, indicating the union's response to the proposal that the matter be listed. And we note that it is - can I just pass this letter to the Commission, because it conveniently sets out my client's attitude.

PN924

It is a letter dated 14 November 2002, file copy letter from Ryan Carlisle Thomas to the Associate for Senior Deputy President Watson. And it was written in response to the Blake Dawson Waldron letter requesting that the matter be re-listed. And you will see that in the fourth paragraph we confirm that the bargaining period is still in place. In the last paragraph on the first page we indicate we oppose the re-listing of the program. That there can be no arbitration. There is no imminent prospect of the bargaining period ending. And that the bank's request is inconsistent with the proviso to the Full Bench decision, that is, there can be no arbitration.

PN925

So, Commissioner, that is my client's position. In terms of the suggestion that there might be some conciliation in relation to the matter, independently of 111AA or independently of the withdrawal of a mini-part of the bargaining period, my client's position is that we don't regard that as being a useful exercise at all. You are only too well aware that the application itself, the first time around, was hard fought. And Ms Maloney appeared in that part of the proceedings, and you ultimately had to bring down a decision in relation to it. My client's position is that further conciliation would be fruitless, and in those circumstances, our submission is that the matter be adjourned sine die, with the right of either party to ask for the matter to be re-listed, if and when - we hope when, the bank returns to the bargaining table, and there can be a certified agreement that represents the end to the bargaining period.

PN926

THE COMMISSIONER: All right.

PN927

MR GARDNER: Or indeed, if there might be a certified agreement, that resolves the issue that is at the heart of the matter.

PN928

THE COMMISSIONER: All right.

PN929

MR GARDNER: And, I suppose I should add - and we say that to do otherwise, with respect, Commissioner, is not permitted by the Act.

PN930

THE COMMISSIONER: All right. Mr McDonald?

PN931

MR McDONALD: Yes. All I would say in relation to Mr Gardner's submission is to reject what seems to be an assertion underlying that submission that the bank has withdrawn from the bargaining process. The bank's position has always been it is happy to meet with the union at any time. But that said, we hear what Mr Gardner has to say, and have taken due note of that. And it doesn't seem that we will be in a position to use your time very productively today, Commissioner.

PN932

THE COMMISSIONER: I think that is probably right, isn't it?

PN933

MR McDONALD: Yes.

PN934

THE COMMISSIONER: In all the circumstances. Now the proviso that is in paragraph 42 is pretty plain.

PN935

MR McDONALD: Yes. And pretty - and we concede fairly limited compass for the Commission to assist the parties, unless there is a willingness on both sides as to what course the Commission can take, and that is clearly not the case.

PN936

THE COMMISSIONER: I think that is about right. Yes.

PN937

MR McDONALD: Not at the other end of the table anyway.

PN938

THE COMMISSIONER: All right.

PN939

MR McDONALD: If the Commission pleases.

PN940

THE COMMISSIONER: Anything further?

PN941

MR GARDNER: No, Commissioner.

PN942

THE COMMISSIONER: No. Well, I think in those circumstances, the suggestions you make, Mr Gardner, is really the only way that the Commission can move at this stage, and accordingly I will adjourn these proceedings sine die.

ADJOURNED INDEFINITELY [10.18am]