C2002/5745, Transcript of Proceedings [2002] AIRCTrans 5034 (13 December 2002)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT DUNCAN

C2002/5745

FINANCE SECTOR UNION OF AUSTRALIA

and

GIO AUSTRALIA LIMITED

Notification pursuant to section 99 of the Act
of an industrial dispute re decision by the
employer to conduct an unfair ballot for a
non-union agreement

SYDNEY

12.16 PM, FRIDAY, 29 NOVEMBER 2002

PN1

THE SENIOR DEPUTY PRESIDENT: Could I have the appearances, please.

PN2

MS D. HANNAN: If the Commission pleases, I am for the Finance Sector Union of Australia, and with me I have MR G. DERRICK, Secretary of the New South Wales, ACT branch of the union.

PN3

MR M. HARMER: If it please the Commission, I am a solicitor and I seek leave to appear for GIO Australia Limited, and I further seek leave both to appear and intervene for Suncorp Metway Staff Pty Limited, and here with MS H. DAVIS and MR P. LANDY from the company.

PN4

THE SENIOR DEPUTY PRESIDENT: Your attitude to today's applications, Ms Hannan.

PN5

MS HANNAN: Your Honour, if I may rely on the submissions by the FSU made in previous proceedings, as well as drawing to the Commission's attention the subject matter of the dispute notification, would not be assisted in FSUs respectful submission by legal counsel as sought by Suncorp in the manner sought today and would also seek to amplify that those issues that have been identified in the dispute have also meant that blocking the FSU email access to the workplace to ensure that GIO staff receive a full account of what is being proposed.

PN6

The videoing of staff, as indicated in the dispute notification, would appear to be in apparent contravention of the work place video surveillance at 1998 section 4, in addition to what has been noted, also asking GIO staff how they will vote in the agreement and asking them to ask other people how they'll vote in the agreement and advising GIO staff that if they don't vote, yes, the company will take steps to remove the AMP/GIO agreement. In terms of the email matter, your Honour, and this is linked to the FSUs objection to Mr Harmer's intervention on both counts, that has been blocked when there is no clear state of policy that has been advised to FSU about the FSU not being able to use the company email system, and indeed, before negotiations ceased on the issue of enterprise bargaining FSU had been using the company email system from the outset.

PN7

As I said a moment ago from reports received from FSU last night, Suncorp will remove the AMP/GIO agreement and that GIO staff will have to move to the Suncorp agreement or resign. So its on those additional bases, as well as what has been put before that the FSU strongly objects to the intervention on both counts as sought by Mr Harmer, if it pleases.

PN8

THE SENIOR DEPUTY PRESIDENT: Thank you, Ms Hannan. Mr Harmer?

PN9

MR HARMER: If it please the Commission, in relation to the applications for leave to appear and leave for intervention, to assist the Commission and the FSU, I'll give a brief outline of our contentions although I would indicate that I'm instructed that the company is more than happy to proceed on the basis that was the case in the previous matter why those applications were stood over and there would not be participation by legal representatives in the conciliation process. Having said that, I would seek to record at this stage that in relation to the section 99 matter the application for leave to intervene on behalf of Suncorp Metway similar to what has previously been put and I won't repeat that in the 170NA matter, although I would specifically note that in addition to issues raised in the section 99 matter, go to a process leading up to a 170LK agreement to which specifically Suncorp Metway staff is part of and I think that's most significant in terms of its application for leave to intervene.

PN10

In terms of legal representation, again we have the situation whereby the primary representatives of the company, Ms Helen Davis, in the negotiations, is also intended to be were it necessary the witness for the company in relation to the issues. But before reaching any issue on the merits of a section 99 there were a number of preliminary issues of which we have put the union on notice and very briefly they go to the issue as to whether the section 99 notification raises matters for the purposes of a dispute finding which are properly pertained to the relationship of employer and employee as such for purposes of the definition of industrial dispute under the Act, and obviously there is a range of authorities on that point to which I won't go to now.

PN11

A further issue we raise is the role of part VIB as a code, particularly in terms of dealing with the role of unions in LK agreements and their ability to be involved in conferring or not conferring and intervening in certification proceedings, or indeed being bound by those agreements, and I will have some submissions to make on what that says about the ability of that same union to create an alternative avenue of participation through section 99.

PN12

The next issue we were seeking to raise relates to division llA of part IX of the Act and its role as a code, dates, the area of the Act going to right of entry and certain union rights. We note there has been a Full Bench of the decision finding that area to be a code and not one to be separately traversed in section 99 proceedings. The next issue we maintain needs to be traversed under section 170N of the Act, the notice initiating the bargaining period of the FSU in this matter, apart from referring to right of entry then has a more general entry of union rights and provisions which appears to embrace all other aspects of union rights outside of rights entry which is specifically referred to and certain rights of access, roles of workplace representatives agitated in this matter we say clearly are raised on that notice of bargaining period and raise issues as to the ability of the Commission to deal with them in arbitration pursuant to 170M.

PN13

The next issue that we would seek to raise relates to the role of section 89A and the final issue relates to the ability of the Commission to find a dispute in circumstances where there is a lack of ability to grant relief in relation to the claims made and we sought to go to certain authority on that point. In addition we put the union on notice that there is to be an application under 111(1)(g) of the Act concerning the section 99 matter and we have certain submissions to make on how and when that matter would be dealt with.

PN14

So they are the nature of the matters that we see as justifying legal representation and intervention. Having noted those matter briefly I repeat, however, that the company is here to attempt to resolve the issues. Indeed, we welcome the prospect of hearing issues with the proposed agreements so that we can resolve them in the lead-up to any vote. for that reason we are more than happy to have the two applications for leave for intervention set aside at this point, if the Commission so considers it appropriate. If it please the Commission.

PN15

THE SENIOR DEPUTY PRESIDENT: On the basis of what I've heard this afternoon I reject the application for intervention with leave reserved for it to be renewed should circumstances so require in the future.

PN16

As far as leave to appear is concerned, I intend to grant it. I hear what has been said and regard this matter as being totally different from the 170NA matter and in this case the possibility that Ms Davis may be called as a witness is in itself to grant leave to appear. In addition the matters which have been indicated by Mr Harmer sound matters of some moment which legal representative is entitled to participate in.

PN17

MR HARMER: May it please the Commission.

PN18

THE SENIOR DEPUTY PRESIDENT: It is my intention to go into conciliation by way of conference as soon as we can in this matter. Is there anything that you wish to put on the record, Ms Hannan?

PN19

MS HANNAN: Your Honour, as part of the FSUs argument to oppose intervention and, just so that I'm clear on it, your Honour has not granted the intervention in terms at this point of the Suncorp Metway Staff - - -

PN20

THE SENIOR DEPUTY PRESIDENT: It can be renewed.

PN21

MS HANNAN: It can be renewed, but Mr Harmer's intervention - - -

PN22

THE SENIOR DEPUTY PRESIDENT: His appearance as counsel.

PN23

MS HANNAN: - - - as legal representative has and on that basis what the FSU has put previously in terms of drilling down, if you like, into the matters that have already been raised in the dispute notification have now already been put by the Commission.

PN24

Perhaps one thing I just would like to say before we go into conference because, hopefully, it will probably ground a progression of the matter, as to Mr Harmer's suggestion in a brief way as to the role of the Commission in these proceedings, given the fact that a section 170LK agreement has been proposed, these people, is that these people are still GIO employees. They are still employed by GIO Australia Limited and the have conditions that arise out of two agreements. So we say we are very entitled to come to the Commission and ask for the Commission's assistance in the say that we sought. Other than that, nothing further at the moment, if it please the Commission.

PN25

THE SENIOR DEPUTY PRESIDENT: Very well. Is there anything you wish to add, Mr Harmer?

PN26

MR HARMER: I don't think it would assist at this stage. So we just reserve our position on everything that has been put, if that is all right.

PN27

THE SENIOR DEPUTY PRESIDENT: Yes, that's noted. I'll adjourn into conference.

NO FURTHER PROCEEDINGS RECORDED [12.26pm]