C2001/5868, Transcript of Proceedings [2002] AIRCTrans 567 (26 February 2002)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 4, 179 Queen St MELBOURNE Vic 3000
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TRANSCRIPT OF PROCEEDINGS

O/N VT02418
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER SIMMONDS

C2001/5868

AUSTRALIAN, MUNICIPAL, ADMINISTRATIVE,
CLERICAL AND SERVICES UNION

and

CORANGAMITE CATCHMENT MANAGEMENT
AUTHORITY and OTHERS

Notification pursuant to section 99 of the Act
of a dispute re conditions of employment

MELBOURNE

10.05 AM, THURSDAY, 7 FEBRUARY 2002

PN1

MR K. HARVEY: I appear on behalf of the Australian Services Union.

PN2

MR R. WELLS: I seek leave to appear on behalf of the Corangamite Catchment Management Authority and the West Gippsland Catchment Authority. With me is MS C. POLLARD.

PN3

THE COMMISSIONER: Yes, thank you. That was the Corangamite?

PN4

MR WELLS: Corangamite Catchment Authority and the West Gippsland Catchment Authority - I am sorry, Commissioner, I have made an error there. It should be the West Gippsland Catchment Authority and the Wimmera Catchment Management Authority.

PN5

THE COMMISSIONER: Not Corangamite?

PN6

MR WELLS: Not Corangamite, no.

PN7

THE COMMISSIONER: Yes, Mr Harvey.

PN8

MR HARVEY: Thank you, Commissioner. Commissioner, on 12 November last year the Australian Services Union served 17 employers operating in or in connection with local government and water management with a log of claims seeking certain pay and conditions for specified employees. Now, Commissioner, those employers are located both within Victoria and within the State of South Australia. The letter of demand accompanying the log indicated that if the employers did not accede to the demands made within seven days, it was the intention of the union to bring the resultant dispute before this Commission with a view to obtaining an award based on the log pursuant to the provisions of the Workplace Relations Act 1996.

PN9

Commissioner, none of the employers so logged acceded to those demands within the specified seven days. Accordingly on 21 November the union notified the Commission of the existence of an alleged industrial dispute in accordance with section 99 of the Workplace Relations Act. That notification had attached to it a copy of each letter of demand sent and the log of claims, and should be in your file, Commissioner, presumably.

PN10

THE COMMISSIONER: Yes, it is.

PN11

MR HARVEY: Thank you. On the same day, Commissioner, the National Secretary of the union, Mr Paul Slape, made out a declaration with regard to the log of claims and its service upon these employers. That declaration should also be in the Commission's files. For the record, in that declaration the following points are made: that Paul Slape is the National Secretary of the Australian Services Union, a registered organisation of employees, and that he is authorised to make the declaration. Further, that is authorised by the national executive of the union and its rules to place demands on employers for improved terms and conditions of employment.

PN12

And details are given in that declaration as to the service of the log and the letter of demand which includes the mail receipts from the post office. And also that the organisations so logged have not granted the demands made in that log and letter of demand. Commissioner, the registry duly allocated case number 5868 of 2001 to this matter, and the union was subsequently notified by the registry that this matter would be dealt with at this time and place.

PN13

In accordance with rule 16 of the Commission's rules, the ASU notified the employers party to the alleged dispute of today's hearing by prepaid mail. Mr Paul Slape has again made a declaration attesting to the service of that notification to which relevant documents going to today's notice of listing and mail receipts were attached. Now, Commissioner, I would seek to tender a copy of this statement - sorry, the original declaration, your Honour.

EXHIBIT #H1 DECLARATION OF SERVICE OF P. SLAPE

PN14

MR HARVEY: Your Honour, in our submission the above steps meet the full requirements of the Act with regard to the finding of dispute. The dispute is a genuine industrial dispute between the parties as to terms and conditions of employment. The terms of the dispute are clear and relate to the letter of demand and log served. The dispute is an interstate dispute. Employers all operate in or in connection with the industry of local government and/or water supply management, in which the union operates in accordance with its industry rules and the employees of these employers are eligible for membership of the union.

PN15

The ASU is therefore capable of creating a dispute with these employers within the meaning of the Act, and we submit that the requirements of the Act in regard to dispute finding are thus satisfied. Commissioner, there are a number of other things that should be said about the particular employer's log, although we only have representatives at the bar table today from two of the Victorian water catchment management authorities represented. There is no appearance from any of the South Australian employers logged, but the Commission may well have correspondence from - - -

PN16

THE COMMISSIONER: Yes, there is correspondence I am going to refer.

PN17

MR HARVEY: - - - from one or two. And I will go to that, Commissioner. The union and its branches have had discussions with some of these employers. I have previously been advised prior to today that all nine employers located in Victoria operating as water catchment authorities had rejected the claim but did not oppose the finding of the dispute. Mr Wells has raised some issues with me immediately before this hearing, and has said that in a ring-around yesterday that they believe that some of the employers had not been served. But I provided him with a copy of the declaration of service that I have just handed up to the Commission, so I am a bit puzzled to know why some of them think they have not been served.

PN18

Mr Wells may say something more about that. But in any case, he is only authorised at this point to represent two of the employers. With regard to the South Australian employers, there are a variety of employers that have been logged, including a community transport scheme, local plant animal control boards, local councils, as well as a contractor to local government. Now, the union also logged the Local Government Association of South Australia. Now, with regard to that last organisation in particular, Commissioner, the union has had some discussions with the Local Government Association of South Australia, and as a result of those discussions the ASU has agreed not to proceed with a dispute finding against this organisation.

PN19

Accordingly we do not now seek that they be included in any dispute finding made today or subsequently as a result of this notification.

PN20

THE COMMISSIONER: Which ones are they?

PN21

MR HARVEY: Well, this is the Local Government Association of South Australia, Commissioner, who may well have written to you.

PN22

THE COMMISSIONER: Yes, I have got that.

PN23

MR HARVEY: I was going to - I am not sure whether you want to mark it, Commissioner. I was going to hand it up to you. I have a letter from the Local Government Association of South Australia addressed to our branch in South Australia making certain undertakings, and a letter from the ASU back to that organisation indicating formally that we would not proceed with a dispute finding against them. I do not know whether you have got the first one or the second one, or something else.

PN24

THE COMMISSIONER: I have correspondence of 4 February referring to today's hearing, and it goes like this. It is from - correspondence from Geoff Hill, Consultant, which has some annexures attached to it, and that correspondence of 4 February says:

PN25

I advise that I represent the Local Government Association in the above matter. I further advise agreement has now been reached between the ASU and the Local Government Association to not proceed with the dispute finding involving the parties. The agreement not to proceed is founded on the undertakings given by the Association to the ASU in correspondence dated 18 January. The ASU agreement is confirmed in the correspondence. The LGA agrees to notify the ASU in the future event that it decides to place trainees or staff in council positions. The parties respectfully request the agreement be incorporated in the transcript of proceedings of 7 February 2002.

PN26

Attached to it is correspondence from the Local Government Association of South Australia to the Branch Assistant Secretary of the Australian Services Union of South Australia and correspondence of 24 January 2002 to the Executive Director of the Local Government Association of South Australia from Mr Fleetwood at the ASU. Is that the correspondence that you are referring to?

PN27

MR HARVEY: Yes, I have not seen the first one that is addressed to you, Commissioner.

PN28

THE COMMISSIONER: Well, I read that with some detail, so I will mark that series of correspondence as exhibit A.

EXHIBIT #A SERIES OF CORRESPONDENCE BETWEEN LOCAL GOVERNMENT ASSOCIATION OF SOUTH AUSTRALIA AND AUSTRALIAN SERVICES UNION

PN29

MR HARVEY: Yes, and we would appreciate that that be included in the record of this matter.

PN30

THE COMMISSIONER: Yes. So that is your proposal to exclude from any dispute finding the Local Government Association of South Australia, on the basis of that correspondence?

PN31

MR HARVEY: Yes, it is, Commissioner.

PN32

THE COMMISSIONER: There is then a further piece of correspondence which may not have been brought to your attention, which, if it is the case, it is unfortunate. But it is again from Geoff Hill, Consultant, signed by Mr Geoff Hill for Gaylor Professional Engineering Pty Limited, and I will read it in full:

PN33

I advise that I act for the abovenamed in this matter -

PN34

and it is referring to today's proceeding -

PN35

and in this respect am instructed by the managing director, Mr Richard Gaylor, that the company objects to any finding of dispute between it and the ASU. The basis of the company's objection is: (1) the company is not a local government authority or a body, nor does it have any direct links to local government. The company operates as a commercial business with clients in the public and private sectors. Apart from directors and family, the company employs casual staff as required together with three permanent employees who are subject to individual employment contracts with the company. I understand that no employees are members of the ASU. We do not consider that the nature of the business conveniently fits within the eligibility rules of the ASU constitution.

PN36

It is a consulting firm providing engineering and technical services/expertise to a range of clients. We are concerned that this company has for some reason been singled out. There are numerous organisations and businesses which contract or consult the local government as well as the private sector and which have not apparently been sought to be included in the dispute finding. No reason has been given to the company by the ASU regarding the need for a dispute finding and award respondency, the purpose etcetera for being singled out in the current circumstance. Having regard to all the above, we respectfully request that the company be excluded from the dispute finding via the AIRC proceedings before Commissioner Simmonds on 7 February.

PN37

I will mark that as exhibit B.

EXHIBIT #B LETTER FROM GEOFF HILL, CONSULTANT FOR GAYLOR PROFESSIONAL ENGINEERING, TO THE COMMISSION

PN38

MR HARVEY: The ASU does not agree with that position.

PN39

THE COMMISSIONER: You are aware of that approach?

PN40

MR HARVEY: No, I am not aware that they have written to you, Commissioner. We have a letter from Geoff Hill Consulting dated 21 January of this year, making very similar points, and we have an earlier letter from them when they received the log of claims in November, which I think I may as well hand up to you in a moment, Commissioner. I also have a further letter; as a result of the 21 January letter, we had a further - our branch in South Australia had further investigations in this matter, and as a result - and further discussions with Geoff Hill representing the company and, as a result of that, we are desiring to proceed to have a dispute found with this company on the basis that Gaylor Professional Engineering is a contractor to local government, and in fact their initial letter to us of 15 November acknowledged receipt of the log and said:

PN41

Gaylor Professional Engineering is in receipt of your claim dated 12 November and hereby responds on an interim basis.

PN42

It says:

PN43

Under GPEs contract with the Wattle Range Council, it is necessary for this matter to be discussed with the principal representative and CEO of the council.

PN44

Which indicates that they have a contract and therefore are a contractor to the local government in South Australia. We do not dispute the sort of size or the nature of the operation, that they have got three permanent employees, but we have had discussions with the company and I will not mention the names of the employees, but one of them spends 40 per cent of her time as a Wattle Range Council rates officer, 40 per cent on other local government clerical administration duties, and 20 per cent on other work.

PN45

Another person is an engineer almost exclusively employed in local government, approximately 50 per cent of his time is spent at Wattle Range Council and nearly 50 per cent at Corryong Council. And another person is a technical officer employed full-time carrying out work for Wattle Range Council in that capacity. I understand that those employees are located either wholly or in at least part-time, actually physically located in council offices in South Australia. With regard to the suggestion made in the letter that they do not fit - I forget the exact words - but they do not fit neatly within the ASUs industry and eligibility rules, perhaps I should just take you to that, Commissioner, and I would hand up an extract from the rules of the Australian Services Union.

EXHIBIT #H2 EXTRACT FROM RULES OF AUSTRALIAN SERVICES UNION

PN46

MR HARVEY: Commissioner, H2 is an extract from the rules; it is not a certified copy, but you can see - you may recognise that it is a copy that I took yesterday from the Commission's website, and incorporates all alterations up to 11 January this year. Commissioner, if you go through to page 6 of this, you will find an eligibility for membership rule which is in a number of parts. Part (1) there says:

PN47

The union shall consist of an unlimited number of bona fide employees of municipal, county and shire councils or other local government authorities or trusts ...(reads)... usually performed by municipal or shire councils or other local authorities -

PN48

etcetera, etcetera. And then if you go down - sorry, keep going -

PN49

authorities before the appointment of such boards corporations, commissions or trusts and of employees to contractors to any such councils, authorities, boards, corporations, commissions or trusts.

PN50

So employees - it says employees to contractors. I am not sure why that expression is there, Commissioner, rather than employees of contractors. But I presume it means the same thing. But employees of contractors to any councils are eligible to be members of the Australian Services Union. And, given the fact that Gaylor Professional Engineering, by their own admission, has a contract with at least one council, that is the Wattle Range Council in South Australia, we see no reason why they should not be included in a dispute finding.

PN51

Now, Commissioner, we are in your hands as to exactly what you want to do about that today. It would be our submission that a dispute should be found. We have had no further advice and there is obviously no appearance today from the company or their representative, Mr Geoff Hill. So I am not exactly sure what their position is, other than what is set out in their letter, obviously. But we would be seeking a dispute finding today, and I would be happy to hand up a copy of the correspondence that we have dealing with this issue, Commissioner.

PN52

THE COMMISSIONER: Yes, thank you.

EXHIBIT #H3 COPIES OF CORRESPONDENCE BETWEEN GAYLOR PROFESSIONAL ENGINEERING, GEOFF HILL CONSULTING AND ASU

PN53

MR HARVEY: As I say, Commissioner, H3 is three pieces of correspondence, one from Gaylor Professional Engineering to the Union dated 15 November which I referred to; a letter from Geoff Hill Consulting on their behalf, dated 21 January, making the points that are made in the letter received by the Commission, and finally correspondence from our South Australian branch to me, outlining why we believe - what we believe that the company is doing on the basis of our investigations and responding in part to the suggestion that we have singled them out. But I do not think that is particularly relevant.

PN54

And the branch also points out that a number of other similar organisations are respondent to the Local Government Award in South Australia. But on the basis of that material and the rules of the union, Commissioner, we would believe that a dispute should be found with that organisation today. Is there anything more you want me to say about that, Commissioner?

PN55

THE COMMISSIONER: No, no, that is find, thanks, Mr Harvey.

PN56

MR HARVEY: Thank you, Commissioner. Commissioner, as I said, there is no appearance from any of the other South Australian employers either, but I just mention for the record that all of the other bodies that we have been talking about, other than the Local Government Association of South Australia and Gaylor, are local authorities or similar or related bodies. The plant and animal boards which have been logged are new employers created by amalgamation of numbers of existing similar bodies in South Australia which are already subject of dispute findings and are covered by ASU awards.

PN57

The councils that we have logged are new employers created by amalgamation of previously existing councils or as a result of name or other similar sorts of changes. So we do not believe and there have been no issues raised with us as to why they should not be included in any dispute finding today. Therefore in accordance with the above submissions, Commissioner, the union would request that the Commission find and record the existence of a dispute between the union and all the employers named in the log, with the exception of the Local Government Association of South Australia in accordance with the Act in section 101.

PN58

The union further requests that the parties be ordered to confer with a view to settling the dispute. And the only other thing to point out for the sake of completeness is the suggestion that has been made before the hearing today that some of these Victorian bodies have not been - or have told Mr Wells they have not been served, but I think it is reasonably clear from the declarations that have been filed by the union that they received both the log and the notice today. But, subject to your wishes, Commissioner, and what Mr Wells might say, we are happy to have discussions in conference or in some other way if there is a concern about proceeding against those employers. If the Commission pleases.

PN59

THE COMMISSIONER: Yes, thank you, Mr Harvey. Mr Wells.

PN60

MR WELLS: Thank you, Commissioner. Mr Commissioner, I am an employee of Industrial Relations Victoria which is the government's primary industrial relations unit. This group of catchment management authorities has been the subject of negotiations with the ASU for probably two to three years in an endeavour to get them into a new award, award or industry award. Those discussions are well advanced and were probably delayed by the simplification process in the Victorian Local Authorities Award.

PN61

The agencies would normally be represented by an employee like myself of Industrial Relations Victoria. Unfortunately, we only found out about this hearing yesterday afternoon from the State Office of the ASU. I endeavoured to contact two of the leading CMAs, which I did, and I have their authority, West Gippsland Catchment Management Authority and Wimmera Catchment Management Authority, to appear on their behalf and to not oppose a dispute finding. However, I have not been able to contact the others.

PN62

The point Mr Harvey made about service of the log, I expect they probably all have been served with the log. I cannot confirm that, but I suspect they have. What I can confirm is that the two that I spoke to yesterday, which I represent today, had not been notified of today's hearing, which leaves me with the dilemma of not having authority to represent all nine of the catchment management authorities. So it is really just a matter of contact I think needs to be made.

PN63

THE COMMISSIONER: Have you seen exhibit H1?

PN64

MR WELLS: Sorry?

PN65

THE COMMISSIONER: Have you seen exhibit H1?

PN66

MR WELLS: No.

PN67

THE COMMISSIONER: I might just have my associate pass that. You see, exhibit H1 seems to - well, it does not suggest - it is a statutory declaration by Mr Slape that on 18 December he forwarded a notice fixing time and place for hearing of the dispute and a notice of listing, true copies of which are annexed and marked hereto. They were posted by prepaid registered mail addressed to the organisations whose names and addresses were shown in the receipt for registered mail issued by the Carlton South Post Office. And that is - well, that is the original, not a true copy, I think. And that is actually dated - you know, that seems to suggest that the registered mail was posted on 18 December.

PN68

MR WELLS: That is fairly compelling evidence, Commissioner.

PN69

THE COMMISSIONER: Yes. I must say I find it more compelling than the submission from the bar table, which is second-hand hearsay.

PN70

MR WELLS: Yes. The dilemma I have though is I do not have authority to represent the other seven.

PN71

THE COMMISSIONER: No, I understand that. And - - -

PN72

MR WELLS: Which I can get probably by this afternoon.

PN73

THE COMMISSIONER: I think I have got to proceed on the basis of what has been lodged, and if make fish of one and fowl of the other I will be doing it forever, and that would be - - -

PN74

MR WELLS: Well, just to confirm my position with Wimmera Catchment Management Authority and West Gippsland, they have received the log and letter of demand. They do not accede to any of the claims therein but they have no objection to a dispute being found.

PN75

THE COMMISSIONER: Thank you, Mr Wells. In this matter, a letter of demand and log of claims was served - just perhaps before I go to this, do you have a convenient listing of the bodies served? I mean, unlike the normal process, what has happened is that a copy of - I suppose it is easier from your point of view, but a copy of each of the letters of demand has been sent but there is not a list. I think I can probably - - -

PN76

MR HARVEY: Probably the postal receipt is probably the best - - -

PN77

THE COMMISSIONER: Yes.

PN78

MR HARVEY: Best list, Commissioner.

PN79

THE COMMISSIONER: Yes, it is just a question of identifying that. And might I also say - I might just go off the record to say this, if I could please.

OFF THE RECORD

PN80

THE COMMISSIONER: What I will do, this matter relates to a notification of dispute made by the Australian Municipal Administrative, Clerical and Services Union lodged in the Commission on 22 November 2001, and for convenience I will refer to the union as the ASU. Before me by way of evidence is the actual notification of dispute and attached to that, in accordance with the rules, is a declaration by Mr Paul Slape, the National Secretary of the ASU, advising that he was authorised by the National Executive under the rules of the organisation to place demands on the employers that are set out in attachment B, which is the postal receipt - it is attachment B to the notification of dispute - but he forwarded a letter of demand and log of claims by registered mail addressed to those organisations on 12 November 2001.

PN81

The letter of demand required - well, stated that if the particular employer:

PN82

failed to acceded to this demand within seven days it is the intention of the union to bring the resultant dispute before the Australian Industrial Relations Commission with a view to obtaining an award based on the said log of claims pursuant to the provisions of the Workplace Relations Act 1996, and it is the intention of the ASU to utilise conciliation processes in pursuing settlement of any dispute arising from this log of demands.

PN83

Subsequently in accordance with that, as I have indicated, a dispute was notified to the Commission and the matter was referred to the Commission as presently constituted, and on 17 December a notice fixing time and place for hearing, namely, at 10 am today, was forwarded to the organisation with the requirement that they notify all respondents to the award. Exhibit H1 in these proceedings is a statutory declaration by Mr Slape again, indicating that a notice fixing the time and place for hearing of the dispute and a notice of listing were posted by prepaid registered mail addressed to the organisations that I have already referred to and were an exhibit in attachment B to the original notification of dispute.

PN84

Subsequently the Commission has received correspondence from Geoff Hill Consulting representing the Local Government Association of South Australia, and Mr Harvey representing the ASU today has confirmed the effect of that correspondence which is that they no longer seek a dispute finding against the Local Government Association of South Australia, which is one of those organisations mentioned in attachment B to which I have already referred. Furthermore, correspondence has been received, which I read into the record, from Geoff Hill Consulting regarding one other organisation, namely, Gaylor Professional Engineering Pty Limited.

PN85

On the basis of what has been put to me, and specifically the information contained in exhibit H3, I see no reason to exclude that company from a dispute finding. Mr Wells has entered an appearance on behalf of the West Gippsland Catchment Management Authority and the Wimmera Catchment Management Authority, and has indicated that in perhaps normal circumstances he would be in a position to represent the other catchment management authorities who make up I think the bulk of those who are organisations who appear on attachment B to which I refer.

PN86

However, as he correctly says, he can only represent those two for whom he directly appears and, in respect of those two, he has no objection - sorry, on their behalf he has no objection to a dispute finding being made. In all of the circumstances I am satisfied that it is appropriate to find the existence of an industrial dispute within the meaning of the Act and accordingly I make the following finding:

PN87

That pursuant to section 101 of the Workplace Relations Act 1996 the Commission determines, records and finds as follows:

PN88

(1) that there is in existence an industrial dispute within the meaning of the Act;

PN89

(2) the parties to the industrial dispute are the Australian Municipal, Administrative, Clerical and Services Union (ASU) of the one part and the organisations set out in attachment B to the notification of dispute lodged by the ASU on 22 November 2001 and contained in the file C2001/5868

PN90

(3) The - - -

PN91

MR HARVEY: Sorry, with one exception.

PN92

THE COMMISSIONER: Sorry, yes. But excluded from that listing is the Local Government Association of South Australia.

PN93

(3) The subject matters which are in dispute insofar as they are industrial matters within the meaning of the Act are set out in the letter of demand and log of claims from the ASU dated 12 November 2001 and posted by registered mail that day.

PN94

(4) This dispute extends beyond the limits of any one State of Australia.

PN95

That finding will be reduced to writing and placed on the file in this matter. Mr Harvey, having found a dispute, what do you want done?

PN96

MR HARVEY: We would ask that the parties be ordered to confer with a view to - - -

PN97

THE COMMISSIONER: Does it require an order or?

PN98

MR HARVEY: I don't think so, Commissioner. As has already been indicated today there have been discussions with the Victorian - - -

PN99

THE COMMISSIONER: But there are those other parties - - -

PN100

MR HARVEY: The other parties, yes. Look, it would be helpful if we had a direction to confer in an attempt to resolve the dispute.

PN101

THE COMMISSIONER: Yes. I would direct that the parties to this dispute confer and should the assistance of the Commission be required in conciliating the dispute any of the parties may contact my associate for that purpose. If there is nothing further?

PN102

MR HARVEY: No, Commissioner.

PN103

THE COMMISSIONER: The proceedings are adjourned. Thank you.

ADJOURNED ACCORDINGLY [10.38am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #H1 DECLARATION OF SERVICE OF P. SLAPE PN14
EXHIBIT #A SERIES OF CORRESPONDENCE BETWEEN LOCAL GOVERNMENT ASSOCIATION OF SOUTH AUSTRALIA AND AUSTRALIAN SERVICES UNION PN29
EXHIBIT #B LETTER FROM GEOFF HILL, CONSULTANT FOR GAYLOR PROFESSIONAL ENGINEERING, TO THE COMMISSION PN38
EXHIBIT #H2 EXTRACT FROM RULES OF AUSTRALIAN SERVICES UNION PN46
EXHIBIT #H3 COPIES OF CORRESPONDENCE BETWEEN GAYLOR PROFESSIONAL ENGINEERING, GEOFF HILL CONSULTING AND ASU PN53