C2001/5206, Transcript of Proceedings [2002] AIRCTrans 956 (26 March 2002)

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TRANSCRIPT OF PROCEEDINGS


O/N VT02919

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT LACY

C2001/5206

VICTORIAN LOCAL AUTHORITIES INTERIM AWARD
1991

Application under section 113 of the Act
by the Australian Municipal, Administrative,
Clerical and Services Union to vary the
above award re the making of the Victorian
Local Authorities Interim (Roping-In) Award
No. 1 of 2001

MELBOURNE

10.02 AM, FRIDAY, 8 MARCH 2002

Continued from 13.12.01

PN120

THE SENIOR DEPUTY PRESIDENT: Any change in appearances?

PN121

MR HARVEY: Not down this end, your Honour.

PN122

THE SENIOR DEPUTY PRESIDENT: Where are we at, Mr Harvey, with this one?

PN123

MR HARVEY: Your Honour, since the last hearing of this matter in, I think, December of last year, the union has had an opportunity for further discussions with VECCI representing a number of employers logged by the union and with whom disputes have been found and also with the YMCA in regard to employers coming under the umbrella of that organisation. The union has had no meeting or any contact with or from the other employer involved, that is Rans, who foreshadowed at the last hearing an application to revoke a previous dispute finding that we have with their company.

PN124

They are not represented here today, so we are not sure what their position is but we are also unaware of any further action that has been taken by them to pursue that revocation of dispute finding. But with regard to the employers that are represented here today, your Honour, and with whom we met, the unions met with VECCI on two occasions this year and we understand that VECCI, in turn, has met with its members and had discussions with them about their position.

PN125

While, obviously, it is up to Mr Eberhard to confirm their position, we understand that it is as they have told us, that while they don't oppose an award being made in part settlement of the disputes that have been found, they do not agree to any such award being or, indeed, being based on, the Victorian Local Authorities Interim Award 1991, which is the award that the union's application in C2001/5206 seeks to rope these and other employers into. Now, your Honour, while the union does not resile from its roping-in application, we have indicated that we are prepared to enter into some without prejudice discussions with VECCI to see if we can progress those discussions on an alternative form in an award which might in the end meet the needs of both parties.

PN126

To that end, we have already exchanged draft awards but, to be fair, these discussions have not progressed particularly far at this point and, from our point of view, it is too early to say whether this course of action is likely to result in an outcome that both parties will be able to live with. The employers represented by VECCI have also indicated that there are some other considerations to their involvement in this process and I will leave Mr Eberhard to indicate anything further he wants to say with regard to that and then, if necessary, I would like to respond after hearing what he and Ms Moore say this morning.

PN127

With regard to the YMCA, we have only had limited discussions with that organisation, your Honour, and, in fact, they only occurred this morning before the hearing but arising from that I think it is fair to say that a reasonably similar position exists and that the YMCA is prepared to enter into discussions with the union about the form of an award which may be acceptable to them in part settlement of this dispute. We have indicated to the YMCA that we are prepared to sit down with them, either individually or jointly with VECCI, to have further discussions along those lines.

PN128

I suppose it is also fair to say, your Honour, that both parties have maintained their options at this stage. We are maintaining our option to push on with the full roping-in and the employers represented today are reserving their rights to oppose that fully. But we are hopeful of attempting to meet somewhere in the middle in the not too distant future. So, at this stage, your Honour, we would propose that this matter be listed again for report back in, say, four or five weeks.

PN129

At that time we would expect to be in a better position to determine whether it is likely that we will be able to resolve these matters by negotiation or, if necessary, by some negotiation, some conciliation and some arbitration at the end of the day and, if so, whether a further application by the union will be necessary to facilitate that or whether we need to plough on with the existing application and ask that dates for hearing be set at a future report back. But unless your Honour has any questions of the union at the moment, that would be our submissions and, as I indicated, your Honour, i would be interested in responding to anything the employers may put formally this morning.

PN130

THE SENIOR DEPUTY PRESIDENT: Mr Harvey, what do you suggest I do about the Rans Management matter?

PN131

MR HARVEY: Which particular matter?

PN132

THE SENIOR DEPUTY PRESIDENT: You said that Rans Management - well, you not only said - Rans Management did foreshadow an application to set aside or revoke the dispute finding but, like you, I am unaware of any application of that nature. So are you proposing at this stage that that matter just be left alone or how do you propose to proceed with that matter?

PN133

MR HARVEY: I would like to ignore it altogether, your Honour. Your Honour, we are in exactly the same boat. I mean, they have foreshadowed that application but, as far as we know, it hasn't been made. So, in the absence of that, we would like these matters to proceed. That is the position of the union.

PN134

THE SENIOR DEPUTY PRESIDENT: Yes. Thank you, Mr Harvey. Mr Eberhard.

PN135

MR EBERHARD: Your Honour, I probably shouldn't have prepared anything because Mr Harvey has probably said a lot of what I was about to say. Just a couple of qualifications in regards to a couple of the situations that Mr Harvey did report to you on and that was that VECCI has conducted an internal membership meeting with the four companies that we represent and that was held on Tuesday, March 5. Representatives of each of the companies attended that meeting and provided a comment on the ASU draft without prejudice version of the award that they sought.

PN136

The comments certainly were not positive in that each of the companies believed that the ASUs near total reliance on the Victorian Local Authorities Award is completely incorrect. As a result, the position adopted from that meeting was that the draft award proposed by the ASU is fundamentally flawed and cannot be endorsed nor accepted by the employers. However, having said that, the employers do not oppose the concept of an award being made, as Mr Harvey has already indicated.

PN137

One thing that was raised at our meeting on Tuesday, March 5 and was also raised with the ASU at our meeting on Wednesday, March 6 was that the four employers that VECCI represents actually wished to see this award extend to an industry type of award rather than being restricted to the Local Government Contractors Award, if you would like to say. So on that sort of basis I think that is a reasonably new position and we put that to the ASU on Wednesday and they didn't resile from that fact, and that is something that we would need to investigate further in discussions with them.

PN138

Another position that was certainly put by the members that we represent was that with respect to the finalisation of this matter in the sense of the making of an award, should it be necessary that this application by the ASU actually come before yourself in an arbitral fashion, the position of the four companies that VECCI represents has now been determined and is fairly clear. We would submit in that respect that the applications by Rans regarding the revocation of the dispute finding and then the possible 111(1)(g)(iii) application that the Commission refrain from hearing the matter should be heard and determined prior to the substantive application regarding the making of an award be heard by the Commission itself.

PN139

Our members believe that it is extremely important that that occur because the employers that VECCI represents in these proceedings do not philosophically oppose the making of an award but they do have fundamental concerns that an award may be made that for a period of time may bind some of the contracting employers but not all of the employers, thereby potentially giving one employer an advantage over the other. For those reasons, VECCI would submit that, should this be necessary in the sense of if we need to proceed to arbitration - I am not saying that we will but should we need to - VECCIs position on behalf of the members that we represent in this is that the applications by Rans should be heard prior to determining the matter that is currently before the Commission in regards to a roping-in application by the ASU.

PN140

As I indicated before, the parties that we represent are quite happy to continue on discussions with the ASU and we would be quite happy to support a report back in four or five weeks. We would probably prefer a longer time frame given that we are coming up to an Easter period as well and that is going to delay things somewhat. So we would probably say sort of the end of the five weeks rather than at the start of the four weeks in a report back and that may well give us the opportunity to have at least one, if not two, meetings in that period of time.

PN141

It would also give VECCI the opportunity to receive from the four members that we represent in these proceedings the comments that we have asked for in respect to the ASUs draft and we would then certainly in a more fundamental position of knowing where our members wish to proceed in respect to certain aspects of the award. If the Commission pleases.

PN142

THE SENIOR DEPUTY PRESIDENT: Are any meetings programmed over the next four or five weeks?

PN143

MR EBERHARD: There are no programmed meetings and the reason for that was that we met with the ASU on Wednesday. The YMCA met with the ASU this morning prior to this hearing and I believe that, given what had been indicated in other discussions that had occurred, that - and I don't want to steal the thunder from Ms Moore but it may well have been appropriate that all three parties come together in discussions and I thought after our Wednesday meeting with the ASU that it wasn't worthwhile to look at a meeting but I think I have indicated to Mr Harvey downstairs this morning that we would need to sit down after these proceedings and schedule at least a meeting, if not meetings, prior to any further report back.

PN144

THE SENIOR DEPUTY PRESIDENT: Yes, all right. Thank you, Mr Eberhard. Ms Moore.

PN145

MS MOORE: Thank you, your Honour. As, I think, Mr Harvey and Mr Eberhard have indicated, the YMCA has met with VECCI on Wednesday, 6 March and with the ASU this morning and what the YMCA has indicated to both parties is an intention to participate in discussions, without prejudice discussions, obviously, your Honour, which may eventually result in a new award being made. In terms of drafts, the YMCA has not yet perused copies of either VECCIs nor the ASUs drafts, so we would be seeking to look at those in the interim period and then would be looking at joining with VECCI in tripartite discussions with the ASU and would certainly support Mr Eberhard in saying that it is the intention of the YMCA to schedule at least one date before the next report back. Obviously, Easter does tend to get in the way a little bit.

PN146

We would also concur with VECCI that in terms of if the conciliation process needed to be finalised through an arbitral process, then the situation, the outstanding situation regarding Rans, should be resolved before the arbitration commenced so that there is a clear understanding of exactly where all the parties are at in terms of the whole industry. In terms of the content of any proposed award, obviously the YMCA is going to have to hold further without prejudice discussions in terms of the scope, the parties and obviously the content of that award. I think that is the end of my submissions, your Honour. Suffice it just to say that the YMCA reserves its rights with respect to the application to be roped in to the Victorian Local Authorities Award 2001, which I think Mr Harvey has already made clear.

PN147

THE SENIOR DEPUTY PRESIDENT: Yes. What do you say about the next listing? When do you think that should be?

PN148

MS MOORE: Your Honour, we would be looking at five rather than four weeks. We would suggest some time after Easter, which would give the parties an opportunity to hold discussions before Easter, your Honour.

PN149

THE SENIOR DEPUTY PRESIDENT: Thanks very much, Ms Moore. Mr Harvey, what do you say about the proposal that the Rans Management issue be determined before any arbitration takes place in relation to the other parties?

PN150

MR HARVEY: Your Honour, we are in a bit of a quandry about this in the sense that there is no application on foot at the moment. So we are not happy with the proposal that anything be delayed in the absence of an actual, real application being vigorously pursued or pursued at all by Rans. But I think it is probably better to just leave it on the basis that we are having some discussions in the next four or five weeks anyway. Let us just proceed with those. If something actually emerges from Rans which has any real form or substance, we will have to deal with that but we don't see that there is going to be any arbitration in these matters in the immediate future.

PN151

We have some negotiations and, if necessary, conciliation to see where we are at and it is going to be a little while before we would be in a position of looking at any proceedings of an arbitral nature. But the other thing is that we don't particularly see why we should be sort of delayed by sort of a vague indication that there will be some revocation sought and then we have to sit on our hands and see whether anything actually eventuates. But we think in practical terms, your Honour, we can go on and push on with negotiation and, if necessary, conciliation and then determine what we need to do at some point in the future if a real application for a revocation of a dispute actually emerges in the process.

PN152

THE SENIOR DEPUTY PRESIDENT: All right, and you will meet after the hearing this morning to arrange some programming, will you, for further discussions?

PN153

MR HARVEY: Yes, your Honour. Your Honour, could I just say one thing about something that Mr Eberhard said. He said that his members saw the award being an industry-wide award and I think he just said not just local government. I think it is important that we understand what that means because on the basis, say, of the union's current application or, indeed, the union's rules and the dispute findings that we have, we could clearly make or the Commission could clearly make an award at the end of the day with regard to the local government sector or contractors to local government, if that is what our rules include.

PN154

But if the definition of industry is beyond that, in the sort of recreation industry which is non-local government-related at all, then that probably couldn't be done on the basis of the dispute findings we have at the moment and we would have to work out how that could be done. So I just flag that in response to what has been said by Mr Eberhard. We are not opposed to that course of action and we are prepared to see how that could be facilitated but we only have a certain ability to take award coverage a certain degree within the industry.

PN155

But, having said that, we are prepared to explore all options to meet the needs of the employers and we are interested in setting sort of an industry-wide base. We don't want an award which applies to only one or two employers. We want an award applying certainly to everybody who works in local government or contracts to local government but we are prepared to see what we can do to take it even further than that, if that is what the industry wants.

PN156

THE SENIOR DEPUTY PRESIDENT: Yes. Well, perhaps you and Mr Eberhard and Ms Moore can discuss that in private conference and see if you can find a way forward to satisfy the requirements of Mr Eberhard about an industry-wide award.

PN157

MR HARVEY: Yes, certainly, your Honour.

PN158

THE SENIOR DEPUTY PRESIDENT: Would 19 April be a convenient date?

PN159

MR HARVEY: I have managed not to bring my diary with me, your Honour, but I think that should be right. Mr Nichol is definitely available.

PN160

THE SENIOR DEPUTY PRESIDENT: Mr Eberhard?

PN161

MR EBERHARD: Yes. No, that is fine.

PN162

THE SENIOR DEPUTY PRESIDENT: Ms Moore?

PN163

MS MOORE: Yes, your Honour.

PN164

THE SENIOR DEPUTY PRESIDENT: Very well. I will adjourn that matter for report back to 19 April, 10 am.

ADJOURNED UNTIL FRIDAY, 19 APRIL 2002 [10.22am]