C2002/1009, Transcript of Proceedings [2002] AIRCTrans 643 (1 March 2002)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 4, 179 Queen St MELBOURNE Vic 3000
(GPO Box 1114 MELBOURNE Vic 3001)
DX 305 Melbourne Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS

O/N VT02529
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT KAUFMAN

C2002/1009

APPLICATION FOR AN ORDER TO
STOP OR PREVENT INDUSTRIAL
ACTION

Application under section 127(2) of the
Act by Melbourne Pathology Services Pty
Ltd to stop or prevent industrial action

MELBOURNE

3.05PM, THURSDAY, 14 FEBRUARY 2002

PN1

MR A. McNAB: I seek leave to appear on behalf of the applicant, Melbourne Pathology. They are in fact two companies behind that name, Melbourne Pathology Services Pty Ltd and Melbourne Pathology Pty Ltd. I appear with MR MOLLER and MISS FRAUMANO.

PN2

MR J. JACKSON: I appear for the Health Services Union of Australia along with Mr M. McCUBIN and MS H. DUFFY.

PN3

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Jackson. Do you object to Mr McNab having leave to appear?

PN4

MR JACKSON: No, I don't, your Honour.

PN5

THE SENIOR DEPUTY PRESIDENT: Leave is granted, Mr McNab. Yes.

PN6

MR McNAB: Background to this application, your Honour, is that the applicant became aware that a stop-work meeting would be held today, and that is in the form of a notice that was posted or given, posted in the workplace but not actually provided to the employer. I have got a copy of that. It might be easier if I hand a copy to your Honour.

PN7

THE SENIOR DEPUTY PRESIDENT: Yes. Are you tendering that, Mr McNab?

PN8

MR McNAB: Yes, I tender that, your Honour.

EXHIBIT #A1 NOTICE RE STOP-WORK MEETING

PN9

THE SENIOR DEPUTY PRESIDENT: Have you seen it, Mr Jackson?

PN10

MR JACKSON: Yes, I have, sir.

PN11

MR McNAB: Now, in this case, there has been a bargaining period notified in relation to an agreement. The heads of agreement were signed between a representative of - by a representative of Melbourne Pathology and a representative of the respondent on 16 August last year, and from that time there has been on-going discussion as to when that agreement should be deemed to have commenced, and the - some of the background from the union's point of view is in that notice which has been tendered.

PN12

Yesterday, Dr Matthew Egans, Chief Executive Officer of Melbourne Pathology, wrote to the respondent objecting to the calling of a stop-work meeting, putting their view as to the background of this - these heads of agreement, and also the processes that occurred since the heads of agreement have been signed, and if I can hand a copy of that to your Honour.

PN13

THE SENIOR DEPUTY PRESIDENT: Have you seen that, Mr Jackson?

PN14

MR JACKSON: We have, your Honour, but not through the process that the Court has been advised.

PN15

THE SENIOR DEPUTY PRESIDENT: Yes, well, I will mark that as an exhibit. You can explain if you need to how you obtained it.

EXHIBIT #A2 LETTER FROM CEO OF MELBOURNE PATHOLOGY TO UNION

PN16

MR JACKSON: I would appreciate it if there was a copy available.

PN17

THE SENIOR DEPUTY PRESIDENT: Oh, you don't have a copy?

PN18

MR JACKSON: We don't have a copy with us.

PN19

THE SENIOR DEPUTY PRESIDENT: I notice a copy is being provided to you.

PN20

MR McNAB: Now, the stop-work meeting, there was no notice given of that meeting as required by the Act. It is submitted that it is plainly, from that notice, from the employer's point of view, it was proposed industrial action which was unprotected industrial action, and in the face of that and in the face of no response to the fax, whether it was directly to the respondent or to staff, there has been no response, and the meeting in fact proceeded at 2 o'clock.

PN21

THE SENIOR DEPUTY PRESIDENT: Is it over or is it still going?

PN22

MR McNAB: I believe it is over, but I am not sure of that as a matter of fact. In terms of the jurisdictional ground, the relevant award is the Health Services Union of Australia (Private Pathology - Victoria) Award 1993 and the parties bound are - that is provided of course by that Award. If you don't have a copy of that, your Honour, I could hand that to you.

PN23

THE SENIOR DEPUTY PRESIDENT: No, I do. That is the Health Services Union of Australia (Private Pathology - Victoria) Award 1993.

PN24

MR McNAB: That is correct. And clause 5 is the relevant award in terms of parties bound. So you have jurisdiction in terms of there being an applicable award is present. There is industrial relation - sorry, industrial action which has occurred. Certainly when the application was made it was industrial action which was proposed. From the tone of the notice it is probable that there will be on-going industrial action.

PN25

THE SENIOR DEPUTY PRESIDENT: Well, that is the real issue, isn't it?

PN26

MR McNAB: That is the real issue. And to bring the Commission, or to put all matters before the Commission which the Commission ought to be aware of, Ms Fraumano had a conversation with Mandy Chambers. Apparently she is an industrial officer of the No 1 Branch, and she told - in response to being notified of this application, she told Ms Fraumano that there would be no on-going industrial action. And as a result of that, there was discussion between Ms Fraumano and Ms Chambers where a meeting has been organised. Initially it was organised for Tuesday, I believe, but has been now moved to Wednesday, where the process of this certified agreement will continue.

PN27

THE SENIOR DEPUTY PRESIDENT: That is Wednesday of next week?

PN28

MR McNAB: Yes.

PN29

THE SENIOR DEPUTY PRESIDENT: Yes, well, doesn't that rather go against my exercising a discretion in your favour; if I have a discretion, which I do have?

PN30

MR McNAB: Sorry?

PN31

THE SENIOR DEPUTY PRESIDENT: I do have a discretion, don't I?

PN32

MR McNAB: You do, yes, your Honour. I was going to refer you to the authorities, and I hand up Patrick Stevedores No 1 v Maritime Union of Australia. I have got a copy for my friend.

PN33

THE SENIOR DEPUTY PRESIDENT: Yes, well, without going to those at the moment, Mr McNab - - -

PN34

MR McNAB: Well, there is a discretion to grant the order.

PN35

THE SENIOR DEPUTY PRESIDENT: Yes. I should let you continue, I think.

PN36

MR McNAB: What I put to the Commission is that there has been industrial action which is unauthorised. There has been no proper notice given pursuant to section 170MO of the Act. The stop-work meeting is industrial action. The - in response to a phone call made this morning by Ms Fraumano she was told that this would happen and that the No 1 Branch do that all the time, that is, hold stop-work meetings. No suggestion that they would stop or not proceed with the stop-work meeting, or, alternatively, no suggestion that they would comply with the procedures set down in the Act.

PN37

So there has been - it is submitted there has been a breach of the Act. It is appropriate - there is a jurisdiction to grant the section 127 order because it has - there has been unlawful industrial action. It has been suggested in this notice that it will continue. There is now this informal - - -

PN38

THE SENIOR DEPUTY PRESIDENT: Just take me to where it is suggested that it will continue, please.

PN39

MR McNAB: Pardon me.

PN40

THE SENIOR DEPUTY PRESIDENT: It is in Exhibit A1, is it?

PN41

MR McNAB: Yes, in the bottom:

PN42

It may be that members decide that the only way to bring about some sort of movement from management is by industrial action.

PN43

It is not an absolute statement, but it is - - -

PN44

THE SENIOR DEPUTY PRESIDENT: No, that might be protected action, Mr McNab.

PN45

MR McNAB: Well, having regard to the fact that we have asked them to stop the meeting and they say: No, we are not going to stop it, we do this sort of thing all the time, one could reasonably assume from that that the action may in fact be unprotected action.

PN46

THE SENIOR DEPUTY PRESIDENT: Yes, reasonable cause for concern, one might think.

PN47

MR McNAB: Yes. And in any event, if the action is protected action, there is protection in the Act, 170MT of the - - -

PN48

THE SENIOR DEPUTY PRESIDENT: Yes, a 127 order has no effect.

PN49

MR McNAB: Correct. And what we seek to do is to allow the parties to negotiate an agreement in accordance with the terms of the Act rather than not in accordance with the terms of the Act. And if they act in accordance with the Act and deal with the employer in accordance with the Act, then there is an immunity provision in 170MT, so there is no mischief done if an order is made.

PN50

THE SENIOR DEPUTY PRESIDENT: Yes.

PN51

MR McNAB: The other alternative is to adjourn the hearing of this until after the meeting, and at that stage you can either - well, the meeting can recommence and the application can be made anew, or alternative it can go to conciliation under section 99.

PN52

THE SENIOR DEPUTY PRESIDENT: Yes, that is one thought that is going through my mind, Mr McNab. It depends to some extent on what Mr Jackson will have to say about it all.

PN53

MR McNAB: If the Commission pleases.

PN54

THE SENIOR DEPUTY PRESIDENT: Yes. Mr Jackson.

PN55

MR JACKSON: Thank you, your Honour. I like the word of misleading or mischievous that has been used in the Court this afternoon by my learned friend. I think the only mischievousness is in the fact that a meeting has taken place this afternoon of HSUA members. Not one person who attended that meeting was on paid time. So it would be a long straw to say that any person who attended, and we are quite happy to discuss that with the employers in relation to those who attended - - -

PN56

THE SENIOR DEPUTY PRESIDENT: Now, to put that in positive terms, are you saying to me that everybody who attended the meeting attended in their own time?

PN57

MR JACKSON: Yes. Nobody was on paid time today, sir, in relation to attending a meeting at our office.

PN58

THE SENIOR DEPUTY PRESIDENT: Well, was there any disruption to work cause by this meeting?

PN59

MR JACKSON: None whatsoever.

PN60

THE SENIOR DEPUTY PRESIDENT: I meant to ask that of Mr McNab. You might bear that in mind, Mr McNab.

PN61

MR JACKSON: I am not going to take you through a long history of negotiations in this EB, your Honour, because I don't think it serves the argument of this application, but simply, we have neither taken any industrial action, nor do we propose to take any industrial action that would either be unprotected or outside of the Act. We hope that a meeting that has been organised for Wednesday may resolve, if not all, most of the issues in relation to current differences or disputes within negotiating the agreement that we are currently pursuing.

PN62

I would only simply say that there has been a process of delays in negotiating this agreement, none of which the Union believes it is at fault of. Subsequently our members voted down the proposed agreement last week, and I think that that clearly exercises from the staff's view as to what they thought of the agreement. But further to that it is, I guess, indicative of the relationship of management and staff that the Court, yourself, was advised that the Union was informed this morning as to Melbourne Pathology's concerns regarding a proposed meeting this afternoon. That notice which I believe was tendered as document 1 this afternoon - - -

PN63

THE SENIOR DEPUTY PRESIDENT: Exhibit A2.

PN64

MR JACKSON: 2, sorry, sir, is not addressed to the Union, was never sent to the Union. There was no notification or any letter of that sort received by the Union. It was brought into us by a member of the Health Services Union this afternoon. So I would simply say, we are not proposing any further industrial action. We are proposing that a meeting takes place on Wednesday, and hopefully we can resolve the outstanding issues with that. But I assure the Commission that if they are not resolved then the Union will attempt to make every endeavour, one, to further negotiate the process through, without industrial action, or failing that, the Union will certainly ensure that it utilises those sections of the Act that are applicable to protected industrial action and processes that we would abide by within the Act itself.

PN65

So based on that, we would seek that the Commission does not make orders in relation to this matter and that the Union advises we are very happy, and hopefully can proceed with this matter and resolve it as quickly as possible.

PN66

THE SENIOR DEPUTY PRESIDENT: Yes. Thank you, Mr Jackson. Well, Mr McNab, was there any disruption at all caused by the stop-work meeting?

PN67

MR McNAB: I am instructed there was. There were six members of staff were involved; nurses from the collections area and accounts staff were also involved.

PN68

THE SENIOR DEPUTY PRESIDENT: Does that mean that you don't accept Mr Jackson's assertions - - -

PN69

MR McNAB: No, we don't.

PN70

THE SENIOR DEPUTY PRESIDENT: - - - that the meeting was not in paid time?

PN71

MR McNAB: No, we don't accept that. And also we don't accept that it is not industrial action. The fact is that the action proposed by this notice to employees clearly contemplated industrial action which was unprotected. And in response to - - -

PN72

THE SENIOR DEPUTY PRESIDENT: Well, the only way I can determine those issues is if I heard evidence from either side. I am not inviting that at the moment.

PN73

MR McNAB: You can determine that on the - with respect, you can determine that on the fact of the notice.

PN74

THE SENIOR DEPUTY PRESIDENT: How so?

PN75

MR McNAB: By reading - without being trite, by reading the notice and seeing that - inviting people to this meeting.

PN76

THE SENIOR DEPUTY PRESIDENT: Yes, but the fact of the matter may be, if Mr Jackson is correct, that only those who weren't rostered on attended the meeting.

PN77

MR McNAB: That is not what the notice says, though. What it says, for instance, at the bottom note:

PN78

The Union recommends that any couriers wanting to attend the meeting do so without using company vehicles.

PN79

It is not saying: Do not attend if you are rostered on for work.

PN80

THE SENIOR DEPUTY PRESIDENT: No, I understand that.

PN81

MR McNAB: Do not attend if it is going to cause inconvenience to the employer or to third parties.

PN82

THE SENIOR DEPUTY PRESIDENT: No, I think we are at cross purposes, Mr McNab.

PN83

MR McNAB: Sorry.

PN84

THE SENIOR DEPUTY PRESIDENT: Mr Jackson says that despite whatever the notice might say, only those who were not rostered on or who were not being paid - I take it that means the same thing - attended the meeting. You contest that. I would have to hear evidence as to that if that was going to be a critical matter. I think we can perhaps move beyond that because what I think I would need you to address is Mr Jackson's very firm assurances that no unprotected action will take place. Whether this was or was not unprotected action is perhaps to some extent no longer as important because that action has ceased. He assures the Commission that no further action will be taken unless it is in accordance with the Act. He certainly implicitly has said that no action will be taken before next Wednesday when the meeting is to take place which he hopes will resolve the matters. In those circumstances, I would be very reluctant to exercise a discretion in your favour. Would it assist if we went off the record?

PN85

MR McNAB: May do.

PN86

THE SENIOR DEPUTY PRESIDENT: Mr Jackson?

PN87

MR JACKSON: Wouldn't object to that.

PN88

THE SENIOR DEPUTY PRESIDENT: Yes, all right. We will adjourn this into conference.

SHORT ADJOURNMENT [3.24pm]

RESUMED [3.26pm]

PN89

THE SENIOR DEPUTY PRESIDENT: I have had a brief discussion with the parties and by consent this application will be adjourned without a date.

ADJOURNED INDEFINITELY [3.27pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #A1 NOTICE RE STOP-WORK MEETING PN9
EXHIBIT #A2 LETTER FROM CEO OF MELBOURNE PATHOLOGY TO UNION PN16