C2002/5979, Transcript of Proceedings [2002] AIRCTrans 5232 (30 December 2002)

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TRANSCRIPT OF PROCEEDINGS

O/N 2724
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT DRAKE

C2002/5979
C2002/6047

COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY,
INFORMATION, POSTAL, PLUMBING, AND ALLIED
SERVICES UNION OF AUSTRALIA

and

AUSTRALIA POSTAL CORPORATION

Application under section 170LW of the Act for settlement of a
dispute (certification of agreement) re engagement of Christmas casuals

AUSTRALIAN POSTAL CORPORATION

and

COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY,
INFORMATION, POSTAL, PLUMBING AND ALLIED
SERVICES UNION OF AUSTRALIA

Application under section 127(2) to stop or prevent industrial
action re strike action from Monday, 9 December 2002 at the Sydney
West Letters Facility

SYDNEY

2.06 PM, WEDNESDAY, 11 DECEMBER 2002

PN1

MS C. HOWELL: I seek leave to appear for the CEPU. With me is MR P. PASFIELD and MR J. METCHER.

PN2

MR R. GOOT: I seek leave to appear for Australia Post. With me is MR M. SECK and MS A. PERIGO. We do not oppose leave as sought by my learned friend.

PN3

THE SENIOR DEPUTY PRESIDENT: That is very kind of you, Mr Goot, and appearances are the same in relation to the 99? Is the 99 listed simultaneously, Narelle?

PN4

THE COMMISSION: It is the 127 - - -

PN5

THE SENIOR DEPUTY PRESIDENT: Oh, wrong one.

PN6

MR GOOT: 99 is finished.

PN7

THE SENIOR DEPUTY PRESIDENT: That is right, it has been and gone. Yes?

PN8

MR GOOT: Your Honour, we would seek for the section 127 application to proceed ahead of the section 170LW application on the basis that - and I don't know whether this is acceded to. I should perhaps just inquire. Okay, yes, that course is opposed. We say this as to what should go first. The 170LW application made by the union, of course, was made first in time - - -

PN9

THE SENIOR DEPUTY PRESIDENT: Yes.

PN10

MR GOOT: - - - but that is - events have overtaken it because since that application was made, as is clear from the section 127 application on 9 December, there was a strike involving approximately 231 employees as a result of which my client is apprehensive that there will be further industrial action for the purpose of section 127 and seeks an order. That, we say, should take priority over the section 170LW application which on any view can only result in conciliation in relation to a matter that I think was before your Honour in a section 99 application which was withdrawn. Your Honour is more familiar with the history than I.

PN11

THE SENIOR DEPUTY PRESIDENT: The matters in dispute are the same but there was no industrial action at the time of the - - -

PN12

MR GOOT: Indeed, indeed.

PN13

THE SENIOR DEPUTY PRESIDENT: - - - first notification.

PN14

MR GOOT: But - and indeed the 99 application was withdrawn as I am instructed and as it is clear from the transcript of the proceedings before your Honour on the basis that there was to be no industrial action. That situation, of course, has changed and it changed on 9 December and requires, in our submission, that the section 127 application be dealt with. As I understand it, in relation to that application - and I should tell your Honour this - my learned friend has indicated that none of the matters of fact that are asserted in the application are admitted and it will be necessary to call short evidence from Mr Sadler and Mr Windsor in relation to the matters of fact that are asserted in the section 127 application and as to conversations in relation to firstly the involvement of the union and secondly the basis upon which there is an apprehension that absent the section 127 order industrial action will continue.

PN15

THE SENIOR DEPUTY PRESIDENT: Mr Goot, the situation is that the employees were on strike on the 9th - - -

PN16

MR GOOT: That is correct.

PN17

THE SENIOR DEPUTY PRESIDENT: - - - and the 10th. And the 10th?

PN18

MR GOOT: Yes, they went out on the evening of the 9th at about 11 o'clock and they were also - and they did not return so that they were on their - they were out on the 10th, on the morning of the 10th. Their shifts variously concluded in between 2 am and 6 am on 10 December.

PN19

THE SENIOR DEPUTY PRESIDENT: And is it the case that the additional work involved in the Christmas mail is not being done? I am just not sure about what the factual position is in relation to that, or all work is not being done? It was the Christmas mail that was the - the additional mail that was the matter of dispute in the 99 and the LW.

PN20

MR GOOT: Well, it was the additional mail brought about, I think, by the operation of demands attended on Christmas. As I am instructed, there has been as a result of the strike delays in the processing of letter articles, a large number thereof, but I don't know whether that is Christmas mail or other mail or whether it is possible to dissect that.

PN21

THE SENIOR DEPUTY PRESIDENT: Oh, so some work is being done but the - not all? Some mail work is being done?

PN22

MR GOOT: Oh, yes, indeed and the strike was only on the 9th and the 10th. There is - currently, and I should indicate, whilst there is currently no industrial action taking place, Australia Post is apprehensive that it will recur next week or at some time after today.

PN23

THE SENIOR DEPUTY PRESIDENT: All right, thank you. I will just hear from Ms Howell. Yes, Ms Howell?

PN24

MS HOWELL: Your Honour, the CEPUs position is that its application should be heard as a matter of priority. I should say first perhaps that to the extent that there may have been any industrial action at Strathfield on Monday night and Tuesday morning it was not sanctioned, authorised or encouraged by the CEPU on my instructions. That is the first point. The second point is your Honour would be aware of the nature of the underlying dispute concerning Strathfield relating to the amount of overtime available to permanent employees and the extent of utilisation of casual employees.

PN25

The difficulty with that issue is that as Christmas approaches the ability of the parties to resolve it is reduced rather than increased because of the time frame in which overtime can be offered to employees is reduced. As I am instructed, there has been little if any progress at least in terms of any modification of Australia Post's position although certainly as I am instructed the union has put compromise positions. In my submission, the primary consideration today should be efforts of both of the parties to resolve that issue. With respect to the 127 application, as Mr Goot foreshadowed the matters in the application are not admitted. We have some second-hand information that there was a stoppage of some sort, in the nature of a wildcat stoppage perhaps, Monday night/Tuesday morning.

PN26

Even on Mr Goot's outline, employees to the extent that they were involved were involved for a period of between three and six hours each approximately and since 6 o'clock on Tuesday morning no further industrial action that we are aware of, no further material that we are aware of to give rise to any suggestion that there might be any further industrial action. There are a number of problems from the union's point of view with the 127 application. It is the union's position that the jurisdictional requirements of threatened impending probable industrial action etcetera cannot be met. Secondly, even if that were not so, as a matter of discretion the Commission would not grant the orders sought. Thirdly, the form of the orders and the parties which they bind are objectionable in a number of respects and those are all matters which the CEPU would wish to address if and when the 127 application proceeds.

PN27

We do say that the most beneficial course to take today would be to attempt to conciliate. With respect to the 127 application, the Commission has an obligation, in my submission, to conciliate with respect to the 127 in any event. One further point which should be made in response to Mr Goot's submission - we do not accept, indeed we would argue to the contrary, the proposition that the Commission is only able to conciliate under the dispute settlement procedure. We - it is the union's position that the Commission has the ability to arbitrate if necessary under that dispute resolution procedure. It would be hoped that that would not be necessary and that the parties could reach agreement.

PN28

However, that is another reason why we do say it is important to deal expeditiously with the union's application. Those are the matters presently, your Honour.

PN29

THE SENIOR DEPUTY PRESIDENT: Yes.

PN30

MR GOOT: I don't want to get into the detail, your Honour, of the 127 application and the evidence that will be led to implicate and lay squarely at the feet of the union this stoppage at least in terms of encouraging it and inciting it but the Commission is statutorially bound to hear and determine the 127 application as quickly as practicable. We say that - and that is section 127(3) - we say that that is conclusive of which of the matters should go first. Insofar as the 170LW application is concerned, my learned friend foreshadows that it may be necessary to arbitrate it in any event and she submits that the relevant clause of the agreement - and I don't know whether you have the agreement before you - - -

PN31

THE SENIOR DEPUTY PRESIDENT: No, I don't.

PN32

MR GOOT: - - - your Honour, but I can hand it up because it is relevant, clearly. Your Honour will see, at page 10 of the document, clause 17, dispute resolution, and in clause 17.2 there are a number of steps there set out. Subclause (iv) permits notification to the Commission:

PN33

The Commission may take action consistent with its powers under the Workplace Relations Act to deal with the matter.

PN34

When this agreement was certified - and that occurred before Commissioner Blair on 20 December 2001 - Mr Ryan, then appearing for Australia Post - and I will hand up the transcript if that - in fact I can do that now. At paragraph 89, Mr Ryan said this:

PN35

Commissioner, if I may I would just like to note one ...(reads)... I just thought, for the record, that should be noted, Commissioner.

PN36

And the Commissioner says:

PN37

Yes, I saw that particular clause and I note that it doesn't ...(reads)... the effect of the clause is as stated by Mr Ryan.

PN38

Now - - -

PN39

THE SENIOR DEPUTY PRESIDENT: Mr Goot, am I to understand that the - Australia Post in this instance doesn't consent to the Commission making a recommendation as a result of the other application?

PN40

MR GOOT: I haven't gone that far, your Honour. I was simply addressing the question of arbitration.

PN41

THE SENIOR DEPUTY PRESIDENT: Yes, all right.

PN42

MR GOOT: And perhaps that transcript - the agreement might be tendered? It might be marked as - I tender it - it might be marked - - -

PN43

THE SENIOR DEPUTY PRESIDENT: Australia Post 1.

EXHIBIT #1 AUSTRALIA POST AGREEMENT

PN44

MR GOOT: And the transcript also I tender.

PN45

THE SENIOR DEPUTY PRESIDENT: I don't need to mark the agreement, do I? It is - - -

PN46

MR GOOT: So it is the transcript is Australia Post 1, your Honour?

PN47

THE SENIOR DEPUTY PRESIDENT: Yes. This is not the Commission's copy. It doesn't have - maybe I will mark that because it doesn't have the - - -

PN48

MR GOOT: No, it is - - -

PN49

THE SENIOR DEPUTY PRESIDENT: - - - codes and things on it.

PN50

MR GOOT: That is correct.

PN51

THE SENIOR DEPUTY PRESIDENT: Yes, Australia Post 1 will be the agreement. Australia Post 2 will be the transcript.

EXHIBIT #2 AUSTRALIA POST TRANSCRIPT

PN52

THE SENIOR DEPUTY PRESIDENT: Mr Goot, in relation to the LW application, are you in a position to seek instructions as to what the attitude of the - - -

PN53

MR GOOT: Certainly, if you - - -

PN54

THE SENIOR DEPUTY PRESIDENT: It seems to me that there is no necessity for these matters to go one before the other. The fact - apart from the industrial action - much of it perhaps - much of the material might be common and they could be heard together.

PN55

MR GOOT: Well, but for this, your Honour. The 127 application really doesn't need to canvass the underlying dispute.

PN56

THE SENIOR DEPUTY PRESIDENT: No, it doesn't, no. That is what I meant by not the - except for the industrial action.

PN57

MR GOOT: Yes.

PN58

MS HOWELL: Well, your Honour, that is, in my submission, not right because if your Honour looks at the authorities one of the relevant factors in determining whether a 127 order should issue is the respective conduct of the parties and there is a strongly-expressed concept analogous to the clean hands principle. The Commission will and does examine the underlying matters which give rise to a dispute so it cannot be said that an application such as this can be looked at in isolation from the underlying issues. Coal and Allied stands for that proposition and there are a number of other decisions of this Commission which have supported that line, that the Commission will not look at the question of a 127 order in isolation from the surrounding circumstances.

PN59

THE SENIOR DEPUTY PRESIDENT: All right, thank you. Mr Goot, could you - do you wish to leave the bar table to obtain those instructions?

PN60

MR GOOT: No, I can do it if - my instructions are that Australia Post would certainly participate in any conciliation proceedings as a result of the section 170LW application but would oppose the making of any recommendations arising therefrom.

PN61

THE SENIOR DEPUTY PRESIDENT: Right, thank you. And who have you available in the 127 application, Mr Goot?

PN62

MR GOOT: Sorry, your Honour, I - - -

PN63

THE SENIOR DEPUTY PRESIDENT: And who have you available to give evidence in the 127 application?

PN64

MR GOOT: Mr Sadler, who is the facilities manager of the Strathfield facility, and Mr Robert Windsor, who is the facilities operations manager - - -

PN65

THE SENIOR DEPUTY PRESIDENT: Yes.

PN66

MR GOOT: - - - of the same facility.

PN67

THE SENIOR DEPUTY PRESIDENT: Thank you. Just have a seat for a moment. Mr Goot, in relation to the issue raised by the CEPU that this is not authorised action, it is a wildcat strike etcetera, those matters, is there any evidence of service on the employees? What steps have been taken to notify the employees other than - other than the CEPU as to the hearing today?

PN68

MR GOOT: Pardon me, your Honour, I will get instructions. No service has been effected on any employees as employees and no orders are sought against the employees.

PN69

THE SENIOR DEPUTY PRESIDENT: Right. Ms - - -

PN70

MR GOOT: Of the union - not employees of Australia Post. Pardon me, your Honour. I am sorry, I misled the Commission inadvertently. There has been no service on the employees consistent with authority but we do seek the orders set out in paragraph 2(c) of the application - of the order, sorry.

PN71

THE SENIOR DEPUTY PRESIDENT: I think I had better - I wish I had brought my glasses in - getting longer.

PN72

MR GOOT: I can only offer you mine, but I don't know if that will be of any assistance.

PN73

THE SENIOR DEPUTY PRESIDENT: I am offended by the fact that I need them at all. I think for a short period in any event I might see the parties separately and then deal with the order in which the applications will be dealt with this afternoon. Does either party have an objection to that course?

PN74

MR GOOT: No.

PN75

MS HOWELL: No, your Honour.

PN76

THE SENIOR DEPUTY PRESIDENT: Right. I will see the union first, Mr Goot, if that is all right but I will only be a couple of minutes.

PN77

MR GOOT: I beg your pardon, I am sorry?

PN78

THE SENIOR DEPUTY PRESIDENT: I will only be a couple of minutes.

PN79

MR GOOT: We will be outside.

PN80

THE SENIOR DEPUTY PRESIDENT: Yes, thank you?

OFF THE RECORD [2.29pm]

RESUMED [5.50pm]

PN81

MR GOOT: Your Honour, thank you for the time. As a result of discussions that have taken place there has been an agreement reached which I might put on transcript if I may. It is in the following terms:

PN82

(1) In respect of the period from 6 pm on 11 December 2002 until and including 24 December 2002, Australia Post will make four offers of overtime to each team at SWLF.

PN83

(2) In respect of those teams of full-time mail officers who in the period 2 December 2002 until 6 pm on 11 December 2002 have been made less than three offers of overtime, those teams will by close of business on 24 December 2002 have made to them by Australia Post a minimum of six offers of overtime.

PN84

3) The CEPU withdraws its application under section 170LW of the Act.

PN85

(4) The parties will, as soon as practicable in January 2003, discuss Australia Post's proposal for an alternative system of offering and recording of overtime at SWLF with liberty to re-list and/or report back to Senior Deputy President Drake.

PN86

(5) CEPU undertakes that it will not cause or authorise industrial action to be taken prior to 24 December 2002 at SWLF and undertakes that it will not support, encourage or incite employees of Australia Post to take industrial action at SWLF within the same time period.

PN87

(6) Australia Post withdraws its section 127 application.

PN88

(7) Australia Post undertakes not to victimise, intimidate or unlawfully discriminate against any employee at SWLF on account of his or her participation in industrial action on 9 and 10 December 2002.

PN89

On that basis, your Honour, the matters are concluded.

PN90

THE SENIOR DEPUTY PRESIDENT: All right, thank you. That reflects the agreement, Ms Howell?

PN91

MS HOWELL: Yes, your Honour.

PN92

THE SENIOR DEPUTY PRESIDENT: Thank you. Will it be possible for you to produce the transcript of that part of the proceedings, that is the list of items of settlement from Mr Goot, tomorrow?

PN93

THE MONITOR: Yes, certainly.

PN94

THE SENIOR DEPUTY PRESIDENT: Yes, good. Okay, so we will order the transcript and try and have a copy of it to all parties by tomorrow.

PN95

MR GOOT: If the Commission pleases.

PN96

THE SENIOR DEPUTY PRESIDENT: The Commission is adjourned, thank you.

ADJOURNED INDEFINITELY [5.58pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #1 AUSTRALIA POST AGREEMENT PN44
EXHIBIT #2 AUSTRALIA POST TRANSCRIPT PN52