C2003/1274, Transcript of Proceedings [2003] AIRCTrans 1029 (24 March 2003)

AUSCRIPT PTY LTD
ABN 76 082 664 220

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

TRANSCRIPT OF PROCEEDINGS


O/N VT10255

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

DEPUTY PRESIDENT IVES

C2003/1274
C2003/1328

RESTRICTIONS IN TORT

Notice under section 166A of the Act
by Coles Myer Logistics Pty Limited
and Another re action against Australian
Municipal, Administrative, Clerical and
Services Union and National Union of
Workers in relation to conduct of those
unions

MELBOURNE

10.05 AM, FRIDAY, 7 MARCH 2003

PN1

MR S. WOOD: I seek leave to appear for Coles Myer Logistics Pty Limited and Myers Stores, the applicants in both matters listed this morning.

PN2

MR A. THOW: I appear on behalf of the National Union of Workers.

PN3

MR. A. BANDT: I seek leave to appear for the ASU, together with MS I. STITT.

PN4

THE DEPUTY PRESIDENT: Thank you. is there any objection to leave?

PN5

MR THOW: No.

PN6

THE DEPUTY PRESIDENT: Leave is granted. Yes, Mr Wood.

PN7

MR WOOD: I thank the Commission. I will hand the Commission an outline of argument which I have provided to the other members at the bar table this morning.

PN8

THE DEPUTY PRESIDENT: Are you seeking to have this marked, Mr Wood?

PN9

MR WOOD: Yes, Deputy President.

EXHIBIT #A1 OUTLINE OF ARGUMENT OF MR WOOD

PN10

MR WOOD: Deputy President, I don't want to go into the detail of the activity that brings us to the Commission this morning, because, as the Commission is aware, and I think the parties are content to proceed into conciliation as quickly as possible. But it is important just to indicate some important aspects of the picketing activity that has been going on since the 14 February, that is for three weeks today. It started at a distribution centre in Altona, operated by the first application, Coles Myer Logistics.

PN11

When Logistics tried to move its stock to another distribution centre at Graham Street, Port Melbourne, a picket developed there. So it operated for about five days from about the 18 or 19 February, that is the Tuesday and Wednesday of the week after the strike commenced - strike and picket commencing, and it turned violent, so violent, that Weinberg J granted an interim order against the parties who are represented here at the bar table this morning, last Monday week, 24 February.

PN12

The picketing then moved from Graham Street to the retail stores operated by the second applicant, Myer Stores. And the picketing has started off being reasonably unobstructive and it has got worse over the last two weeks. So much so that there was an organised invasion of Myers flagship store at Bourke Street, just down the road, on Tuesday; another organised invasion of Myers Chadstone store.

PN13

And the events of last Tuesday at Myers Melbourne store, which severely disrupted business, upset and affected a lot of customers, who are unused to having industrial picketing brought into the centre of the retail - the centre of retail shopping in Melbourne, precipitated these applicants - sorry - precipitated two companies whom I represent, to cause them to make an application to the Federal Court, which is on next Tuesday, to try and restrain the type of picketing activity which has occurred over the last two weeks.

PN14

One thing that the Company wants to do - the companies want to do, is to be able to bring actions for damages against the unions organising this picketing, and they are obviously considering their position against the individual picketers, particularly those people who engage in the organised invasions of the retail stores. So this is, we say, a fairly serious application of fairly serious consequences, and the Federal Court will hear an application for an injunction to restrain the picketing on Tuesday.

PN15

I won't go into the jurisdiction to grant a certificate, Deputy President, now, but I will address on that if it is necessary after conciliation. Suffice to say that this is a - it is a very low threshold to obtain a certificate from the Commission. The test is, could the activities organised by the unions plausibly amount to tortious conduct, and on any view, they plausibly amount to nuisance, they plausibly amount to inducing breach of contract or interference with contractual relations.

PN16

So if it gets to that, we see that not being a serious impediment - any serious impediment, apart from the statutory limitation on 72 hours to granting a certificate, on the granting of a certificate. But I will develop those submissions after we go into conciliation, if that is the way the Commission intends to proceed. But I thought it was useful to set out at the outset what brings us here, why we are here, and then see where we go in conciliation and develop the application for the certificate after conciliation.

PN17

If the Commission pleases.

PN18

THE DEPUTY PRESIDENT: Yes, thanks, Mr Wood. Mr Thow.

PN19

MR THOW: Thank you, your Honour. Likewise I don't want to go into substantive detail about the allegations made by my friend, but I think it is certainly worth putting a number of points on the record on behalf of the national Union of Workers. I think, when looking at the application made by the Company, without question, the activities listed on points 1 to 3 of the applicant's notice would not justify an action in tort, quite clearly.

PN20

Going through those points point by point, firstly, the Company have said that the Union is engaging in indefinite strike commencing on 15 February 2003, and that is protected action under the meaning of the Act. Clearly there is immunity provisions under the Act. In section 170MT, certainly the Union would have a legitimate defence in any court action that its strike action is protected, and therefore those immunity provisions would apply.

PN21

All of the notices of the union comply with the Act, and the law on this matter. Our notices were complied within the guidelines established by the Full Federal Court in - - -

PN22

MR WOOD: I might be able to help my friend, Deputy President. We are not going to press paragraph 1 of our application. I think the substantive points he makes, we will concede for the purposes of today's application.

PN23

THE DEPUTY PRESIDENT: Thanks, Mr Wood.

PN24

MR THOW: And I think that could be only justifiable position put by the Company, because certainly they wouldn't have any legs in pursuit in the court. And I think that goes to the intent of what we are here for and what this is all about, to show how quickly the Company would be prepared to drop off things that they put in their notice, I think might indicate what we are really here for. The second point, in relation to the picketing activities.

PN25

Now, my friend has outlined some allegations about what has happened at the Linfox picket. Yes, this has been subject to interim injunction by the Company. However, both parties agreed on undertakings before the Federal Court which were given by the Union, on Monday, 24 February. And I would like to hand up those undertakings for the benefit of your Honour. This order and its format was agreed by the parties. It was agreed in private discussions, and then we were more than happy to put on record in front of Weinberg J our commitment to these undertakings.

PN26

Since these undertakings have been given, the Union has complied completely with these undertakings. In no way have we strayed from these commitments given to the Federal Court. In fact, immediately after the hearing of the Court I went down personally to the picket line, and explained in detail the undertakings and their legal effect. And furthermore, the state secretary of the Union and the assistant secretary of the Union, who have been involved on a day to day basis with the picketers, has also explained what this undertaking means and how it should be applied in more broader terms, not just at the Linfox Distribution Centre, but beyond.

PN27

And in the application, in the second part of the application in point 2, my friend refers to conduct in the Myer MGB stores, and also at the Megamart stores of Sunshine, Chadstone, Thomastown and Narre Warren. And what the Union has done is ensure that all of its activities that have occurred at all of those stores has complied with this undertaking that we gave in the Federal Court of 24 February. And I think that is the only proper action that we should take, and that is the only action that we have taken. Action that has complied with those undertakings. And - - -

PN28

THE DEPUTY PRESIDENT: Did you wish to have this marked, Mr Thow?

PN29

MR THOW: Yes, please, your Honour.

EXHIBIT #NUW1 UNDERTAKING

PN30

MR THOW: And in fact our activities at those stores have been limited to the handing out of information to interested persons, whether they be customers or employees attending for work. And that information has only explained the nature of the dispute to interested parties. To suggest that which my friend is suggesting that displaying placards, distributing leaflets and using a megaphone, is tortious conduct, I think can only be described as inventive, and a brave action by the Company.

PN31

Furthermore, my friend is very keen to use the language of war, which is topical at the moment, when he talks about an invasion of the Myer Store. I think that is extreme. There have been protesters who have peacefully protested at Myer Stores, and I also think it would be conduct that would not be seen as tortious conduct. I think the true intentions of this proceeding is a tactic by the Company designed to try and intimidate our members into accepting an offer that they have already rejected. And that is the true motivation as to why we are here.

PN32

I think, and it certainly is the Union's submission, that the Company would be far better off in putting the same energy and the same resources into to trying to resolve this matter today. And with your assistance I think, and I hope, that we can try and move a long way in doing that. There is an obligation under the Act for the Commission to exercise its conciliation powers. And I think conciliation should be the absolute focus of the parties today. But the parties need to focus not on potential actions in tort, but on trying to solve this dispute. And I think that should be our focus.

PN33

Coles Myer must be prepared to deal with the substantive issues today. We are certainly ready to deal with the substantive issues. The Union has brought its senior officials today to deal with the substantive issues, in Mr Donnelly, the state secretary, and Mr Pacula, the assistant state secretary, and we are showing our commitment today to deal with those issues, with your assistance. If the parties concentrate on this, there may be some hope in resolving a dispute that is harming both parties. And I think that should be our focus today.

PN34

Moving into that very important issue of what is between the parties, I would like to table a document for your Honour's assistance. That was an offer that was put to members on 28 February.

PN35

THE DEPUTY PRESIDENT: Again, are you tendering this, Mr Thow?

PN36

MR THOW: Yes, please.

EXHIBIT #NUW2 OFFER OF 28/02/2003

PN37

THE DEPUTY PRESIDENT: I am sorry this was, what did you say, Mr Thow?

PN38

MR THOW: This was an offer that the Company put to the Union, and it was subsequently put to the members on 28 February, and it was rejected by our members at the time. This is a dispute that is really focussed around one issue, which is wages, and what sort of amount should be paid to our members. So in that sense there is not a lot of issues to talk about, identify, and red circle and push aside. It is only the issues of wages that we need to address. That should assist the parties.

PN39

THE DEPUTY PRESIDENT: And what is the Union's position, Mr Thow, if this is the Company's position which has been rejected?

PN40

MR THOW: Yes, as you can see, it is an offer of 7 per cent over 18 months. The Union's position is, they would like more than what is on the table. We can certainly go into conference and establish what that might be, and what sort of parameters we would like to set. I have not got instructions about that at the moment, but certainly it wouldn't take long to get those. But our position has been that the amount offered is not enough at this stage.

PN41

The only other thing I would like to add in relation to what is in dispute is words around the productivity bonus. Certainly in the third paragraph there, there is a statement that if at the end of three months the parties weren't able to agree on a scheme, that there would be no further payments, I would certainly think that there should be a facility whereby the parties don't agree, we could seek some assistance of the Commission, rather than there just be a unilateral removal of the scheme and no further ability to receive bonuses. I think we would be better placed to go through a disputes procedure that would allow the Commission to sit down and conciliate and maybe arbitrate on the issue if we can't agree.

PN42

They are the focus of what - that is the focus of what is between the parties. I think if we do go into conciliation that is what we should be talking about. We should dedicate our energy towards that, and dedicate our resources towards that. I think any attempt to take this matter further through the court system is just moving away from the aims that we both have, which is to solve this dispute, your Honour. Thank you.

PN43

THE DEPUTY PRESIDENT: Thanks, Mr Thow. Yes, Mr Bandt.

PN44

MR BANDT: Thank you, your Honour. With respect to the issue of a response to what was said by the Company in its opening in respect of the programming for today, and the matter of dealing with it today, the ASU is broadly in agreement with the position of the NUW. We have brought along here today people who, subject to the ultimate approval by members, have the authority to deal with this dispute and to negotiate this dispute. We are here in a position to do that, and would very much appreciate if we could spend some of the time today usefully doing that with the assistance of the Commission.

PN45

I might perhaps mention a couple of matters that are perhaps specific to the ASU. With respect to what Mr Wood said in his opening, like the NUW, we think that that is quite sensationalised comment, that is not actually borne out by the material that has been provided to us. In respect of the Federal Court proceedings that are listed for Tuesday, I don't know whether that is the only material that Mr Wood would be intending to put before you today.

PN46

But if it is, then in respect of the matters that are raised in the Company's notice, the only material that is touched on that affects the ASU is in relation to paragraph 1.D.1 in relation to the Sunshine Store, and 2.B in relation to distributing leaflets. And aside from the outline that has been put to you today, your Honour, we would say there is no material supporting the rest - any of the other matters raised in the notice.

PN47

With respect to the issue of the distribution of leaflets, on the material that has been provided to us, and this issue of invasion, we take the strongest possible objection to the suggestion that there has been an invasion of anything. On the material that has been provided to us, some people went into a store at Sunshine, were seen to be handing out some leaflets, this is on the Company's material, were told that if they continued to do it, it would be a public nuisance, and they left.

PN48

And that is as high as it gets, on the Company's material with respect to this so-called, invasion. And we take strong objection to the suggestion that there has been violence and the like. With respect to the Federal Court proceedings, we are in slightly different position - the Federal Court proceedings that got heard were in a slightly different position to the other union, in that we weren't represented, in those Federal Court proceedings. orders were made in respect of restraining the Union from engaging in certain activity.

PN49

There has not been one suggestion or one complaint those orders have been anything other than fully complied with. There has been no suggestion whatsoever that they haven't been complied with. And in respect of those orders, admittedly it applied to a different site than the Sunshine site, but in respect of those orders, there was a similar - his Honour made an exception that allowed the Union and its members to attempt to talk to drivers or people who were coming into the site, explain to them, why - what the dispute was about, and allowing them to try and persuade them not to enter.

PN50

That was a specific - I don't have a copy of - unfortunately a copy of his Honour's orders, but I understand it is in broadly similar terms to the undertaking that was agreed between the NUW and Coles Myer. So to the extent that there are complaints raised about picketing activity and nuisance and the like, we would ask your Honour to be aware of the fact that we, in respect of that other site, had the right to do that. And it is perfectly a legitimate activity.

PN51

With respect to the leaflets, which is the only other material that is raised that affects the ASU, it is not complained, as we understand it, by the Company that there is defamatory leaflets that are being handed out. There is no evidence that this is causing any loss or damage to the Company, that is causing distress to customers. The highest that it is put in the material that has been provided to us, is that there is one line in it that might be untrue.

PN52

Now we would see it as - it is quite a novel and courageous application that tries to seek from the Commission a certificate to allow a union to be sued, in respect of a leaflet that gets handed out, that contains material about the nature of the dispute. And we would raise some very strong arguments if this matter isn't resolved by conciliation, we raised some very strong arguments in opposition to - that the Commission ought issue a certificate allowing the go ahead for legal action in respect of informative material that is being handed out, on the Company's submission.

PN53

However, as I said at the opening, your Honour, we are committed to attending conciliation today. We broadly agree about the matters that are in dispute in the substantial dispute. I don't have instructions to go on the record with respect to the Union's negotiating position, but that is certainly something that we would raise in conference, and we have the people here who are ready to do it. If your Honour pleases.

PN54

THE DEPUTY PRESIDENT: Yes. Thank you, Mr Bandt. Yes, Mr Wood.

PN55

MR WOOD: I don't think I need to reply to any of that now, Deputy President, I will deal with any reply with the matters that are being raised about our application when we go into evidence if we need to, and I will take up - - -

PN56

THE DEPUTY PRESIDENT: Yes. is the Company in a position, Mr Wood, to discuss the substantive matters of the dispute within the conciliation conference?

PN57

MR WOOD: Can you just give me one moment, Deputy President?

PN58

THE DEPUTY PRESIDENT: Yes.

PN59

MR WOOD: Yes.

PN60

THE DEPUTY PRESIDENT: Yes, thank you. I will go into conference, but I intend to adjourn for a short period first. I will reconvene at quarter to 11 back in this room in conference. Thank you.

SHORT ADJOURNMENT [10.26am]

RESUMED [12.21pm]

PN61

THE DEPUTY PRESIDENT: Yes, well we have had what I think has been a fruitful and positive conference in consideration of the substantive issues of this dispute. I commend both parties on their approach to that conference. I think that the Union has shown a willingness to concede some ground in respect of a dispute without moving itself from its strong negotiating position, and I think also the Company has responded in kind to those concessions that have been offered.

PN62

The result of it has been a proposal for a settlement of the dispute from the Company and it is appropriate that the Company has the opportunity to put that proposal on the record. Mr Howell.

PN63

MR HOWELL: Thank you, your Honour. There has been, as you said, a number of discussions. The proposal that we are putting, that we hope will be put to the mass meeting this afternoon, hopefully with a recommendation from the Union, is for a 7.6 per cent wage increase, and a life of the agreement of 19 months. There be 4 per cent back-dated to 1 January this year, with a further 3.6 per cent to be paid on 1 January 2004.

PN64

That the bonus scheme, as previously offered, essentially remain. however, the previous offer was for an out-payment of 1 per cent to be guaranteed for three months while that scheme was developed.

PN65

We propose to extend that to four months for the payment - for the guarantee of that 1 per cent. That if that at the end of that time, the agreement - at the end of that time, a bonus agreement hasn't been reached, that while the discussions would continue, potentially with the assistance of the Commission, to progress those discussions. That subject to a successful vote by members this afternoon, that work would resume at the distribution centre tomorrow, and there is a small crew of employees that are rostered on to work Saturdays, and that the Company would be prepared to make payment for the public holiday that falls on the Monday to all employees, whether they are working tomorrow or not.

PN66

With respect to the legal action that is currently in train, both here and before the Federal Court, we would propose that this proceeding - both proceedings regarding the section 166A certificates be adjourned, and that subject to the vote this afternoon, we have the ability to call those back on if required. That the Federal Court hearing, again, subject to the vote this afternoon, would be adjourned for the 14 day period required under the Act, for the agreement to be formally voted on by the employees of the Distribution Centre.

PN67

And if that agreement gets up, all Federal Court actions would also be withdrawn. That is the extent of the offer as it currently stands, your Honour.

PN68

THE DEPUTY PRESIDENT: Yes, just before you sit down, Mr Howell, just for the purposes of the record, I will get you to have an appearance noted, because we have changed the appearances since we - - -

PN69

MR HOWELL: Yes, we have.

PN70

THE DEPUTY PRESIDENT: So you might just note an appearance.

PN71

MR P. HOWELL: I appear on behalf of Coles Myer Logistics and Myer Stores Pty Limited.

PN72

THE DEPUTY PRESIDENT: Mr Pacula, you might also note an appearance, when you stand, if you don't mind?

PN73

MR M. PACULA: I appear for the National Union of Workers. Just a couple of very brief points in relation to the position put by Mr Howell. There were also a number of previously agreed items before this dispute commenced, and I am of the understanding that they remain part of the agreement, or part of the offer. It is very important to the Union - it may sound like a minor change, but in the event of agreement not being reached on the bonus scheme after the four month period, the Union having recourse to the grievance procedure which is contained in the agreement, which includes access to the Commission is an extremely important part of the position that has been put by the Company.

PN74

I should just make the other point by way of comment, that of course both unions have an expectation that once the work resumes normally at Altona, that the work currently being undertaken at Plummet Street, Port Melbourne, would cease taking place there, and would return to its rightful place at Doherty's Road. Other than that, your Honour, I should indicate that the unions and the delegates in this room have indicated that we will be recommending the position at the mass meeting this afternoon.

PN75

THE DEPUTY PRESIDENT: Thanks, Mr Pacula. Ms Stitt.

PN76

MS STITT: Thank you, your Honour.

PN77

THE DEPUTY PRESIDENT: You might enter an appearance as well, Ms Stitt.

PN78

MS STITT: I think I already have, your Honour.

PN79

THE DEPUTY PRESIDENT: You did before, that is right, I am sorry, you did.

PN80

MS STITT: Earlier today.

PN81

THE DEPUTY PRESIDENT: Yes.

PN82

MS STITT: If the Commission pleases, the only other additional comment I would seek to make would be that the Company has agreed to provide written confirmation of the Company's offer to both unions prior to the 2.30 mass meeting, which I understand Mr Howell is in a position to do. We will be recommending the proposal to members at 2.30, and we thank the Commission for its assistance today in what I think has been a good outcome all round. If the Commission pleases.

PN83

THE DEPUTY PRESIDENT: Thank you. Is there anything further, Mr Howell?

PN84

MR HOWELL: I think, your Honour, yes, it was remiss of me to leave out the other items Mr Pacula mentioned, that have been previously agreed and do continue to form part of this deal. In terms of the work currently being performed by Linfox in Port Melbourne, that will be reversing that process back into Doherty's Road will be managed by the Company in the most cost effective manner possible, which probably does not mean as of tomorrow everything ceases to happen, but it is certainly our intention that we will wind back Linfox facility with the intention that Doherty's Road continues to perform the work.

PN85

THE DEPUTY PRESIDENT: Thank you. For the Commission's part, I commend the proposed settlement that has been reached between the parties. I think it is a fair and reasonable settlement in all of the circumstances, and I think it constitutes an opportunity for things to return to normal operation with the least dislocation from all parties' points of view, and the opportunity for parties to feel as if they have got a reasonable deal in the circumstances. So on that basis I will adjourn these proceedings. Thank you.

ADJOURNED INDEFINITELY [12.29pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #A1 OUTLINE OF ARGUMENT OF MR WOOD PN10
EXHIBIT #NUW1 UNDERTAKING PN30
EXHIBIT #NUW2 OFFER OF 28/02/2003 PN37