C2003/1460, Transcript of Proceedings [2003] AIRCTrans 1129 (31 March 2003)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT MARSH

C2003/1460

APPLICATION TO STOP OR PREVENT
INDUSTRIAL ACTION

Application under section 127(2) by Australia
Post for orders in respect to proposed new
delivery centre at Sutherland

SYDNEY

5.02 PM, FRIDAY, 14 MARCH 2003

PN1

THE SENIOR DEPUTY PRESIDENT: Take appearances.

PN2

MR R. MOORE: I seek leave to appear on behalf of Australia Post, and appearing with me is MS R. BERNASCONI, solicitor and MR M. DAVIDSON, from Australia Post.

PN3

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Moore.

PN4

MR R. REITANA: I seek leave to appear for the CEPU and I have MR J. METCHER with me.

PN5

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Reitana. Any objection to the applications for leave to appear? Yes, Mr Moore.

PN6

MR MOORE: First of all, I want to thank the Commission for putting this matter on at such short notice. The matter arises from a stoppage of work that has taken place today at two locations operated by Australia Post, namely, the Kirrawee Delivery Centre and the Taren Point Delivery Centre. The facts of the matter in short compass are set out in the actual application with one correction, and I should point to that. In paragraph 7, the application is made originally advised in the third line:

PN7

That 35 employees of the Taren Point Delivery Centre commenced strike action.

PN8

THE SENIOR DEPUTY PRESIDENT: Yes.

PN9

MR MOORE: That number should read, "20".

PN10

THE SENIOR DEPUTY PRESIDENT: Twenty, yes.

PN11

MR MOORE: Yes.

PN12

THE SENIOR DEPUTY PRESIDENT: Yes, I have read that, thank you.

PN13

MR MOORE: Can I just go into the formal draft order attached to the application on page 2, and advise that the fax number of the union appearing in paragraph 11 on page 2 should correctly be 96635599. Now, if there is a need to go into evidence in relation to the matters that we say occurred today, I have available a number of witnesses that can give that evidence but, quite simply, we say that at approximately 7 o'clock this morning Mr Etue, an officer of the union, attended at, firstly the Taren Point Delivery Centre, and he was heard to say the following things to members on the premises.

PN14

First of all, that the CEPU would support any walk-out of members that would be taken. That there were several delivery centres in the State, including the delivery Centres from the Newcastle area that would walk out in support if the employees decided to take actions. That the CEPU were going to fight this proposal to the death and that, as we understand it, a reference to the Sutherland Delivery Centre. That expressions of interest should be given to the authorised union representative who would forward them to the CEPU and, among other things, he advised members not to attend any briefings related to the matters, and that he would see them next week.

PN15

Now, it is our understanding after attending at Taren Point that similar statements were made by Mr Etue, to employees engaged at Kirrawee,and that these statements were made in their tea break, that employees went back to work until their lunch break at approximately 9.30, and at that period of time, the groups of workers identified within paragraphs 6 and 7 of the application for order ceased work and, at this stage, as far as my client is aware, that stoppage of work is indefinite. In terms of the impact of the stoppages of work at the two locations - and again, if need be Deputy President, we can call evidence of this - but the effect in terms of Kirrawee today, that is some 61,000 small parcels and some 20,000 larger parcels, were not delivered. Or, "small items" I should actually describe them as, letters.

PN16

In terms of Taren Point, some 25,000 small and 8000 large items were not delivered out of Taren Point. In terms of the way in which my client would normally handle the situation, there would then be requests made at other distribution centres for persons to work overtime on the weekend. It has been reported to my client, at least from one location at Croydon Park, that Mr Etue has made contact with the authorised union representative at that location and advised them: not to provide any labour to assist in the distribution of mail items tomorrow, as there was an industrial situation occurring at these two locations.

PN17

THE SENIOR DEPUTY PRESIDENT: The people employed at these two locations work 5-day shifts, do they?

PN18

MR MOORE: They work 5-day shifts, Monday to Friday.

PN19

THE SENIOR DEPUTY PRESIDENT: Yes, I see.

PN20

MR MOORE: Their next normal period of work - - -

PN21

THE SENIOR DEPUTY PRESIDENT: Will start when?

PN22

MR MOORE: - - - is 6 o'clock on Monday.

PN23

THE SENIOR DEPUTY PRESIDENT: Yes, 6 o'clock, Monday.

PN24

MR MOORE: I'm advised that if they do not report for work at 6 o'clock on Monday, there would be impact in terms of items not delivered, would be approximately 40 per cent greater, as 60 per cent of the items remain to be delivered this morning, or at those two locations and so, consequently, the numbers would be something approaching 100,000 of small items in the Kirrawee Centre by way of example and something in the order of 40,000 small items in the Taren Point Centre.

PN25

THE SENIOR DEPUTY PRESIDENT: Taren Point, yes.

PN26

MR MOORE: I am also advised by those instructing me that Monday is one of the higher volume days in terms of mail deliveries out of those two centres. In terms of the context in which the industrial action arises, I'm advised that there is currently in place awards and agreements of the Commission that have not exceeded their nominal term. The only other matter that I should add, perhaps, is that there has been a matter associated with the introduction of the Sutherland Delivery Centre, before the Commission constituted by Senior Deputy President Kaufman, that that matter was last before Senior Deputy President Kaufman on 20 February 2003, at which time a direction and recommendation was made, directing the union to withdraw certain advices to its members about a refusal to participate in discussions concerning the introduction of the Sutherland Centre, and also recommending that persons attend.

PN27

THE SENIOR DEPUTY PRESIDENT: The Sutherland Centre has not been created yet, has it?

PN28

MR MOORE: It has not been created but, as I'm instructed - - -

PN29

THE SENIOR DEPUTY PRESIDENT: If that is the right word.

PN30

MR MOORE: - - - there is to take place commencing, I think it is on 31 March, a trial. That trial, or the utilisation of a trial is something that has come out of discussions between Australia Post and various employees and in terms of that - - -

PN31

THE SENIOR DEPUTY PRESIDENT: And that involves using some employees working outside for the whole shift, does it?

PN32

MR MOORE: Yes.

PN33

THE SENIOR DEPUTY PRESIDENT: Yes.

PN34

MR MOORE: In order to be able to ascertain the effects of such a work pattern. As I say, that was due as I'm instructed - - -

PN35

THE SENIOR DEPUTY PRESIDENT: What is the cause of the current dispute?

PN36

MR MOORE: Well, we don't know.

PN37

THE SENIOR DEPUTY PRESIDENT: No.

PN38

MR MOORE: We don't know because there was no - - -

PN39

THE SENIOR DEPUTY PRESIDENT: No, that is what I gleaned from reading the application.

PN40

MR MOORE: We don't know because there was no communication directly with any Australia Post representative by Mr Etue after visiting the two sites, and nor has there been any indication given since the stoppages of work at the two locations as to any efforts that the union has made, either to take steps to give effect to a return to work, such that there is compliance with the dispute settling procedures - - -

PN41

THE SENIOR DEPUTY PRESIDENT: Excuse me, Mr Reitana, if you want to break at an appropriate time to get briefing you can apply.

PN42

MR REITANA: I'm sorry.

PN43

THE SENIOR DEPUTY PRESIDENT: It is discourteous to the Commission and to Mr Moore.

PN44

MR REITANA: I'm sorry.

PN45

THE SENIOR DEPUTY PRESIDENT: This continuous talking through his submission.

PN46

MR REITANA: I'm sorry.

PN47

THE SENIOR DEPUTY PRESIDENT: And I am not going to countenance it.

PN48

MR REITANA: We won't talk any more, I'm sorry.

PN49

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN50

MR MOORE: Now, in terms of it, as I say, there has been no communication from the union as such from Mr Etue.

PN51

THE SENIOR DEPUTY PRESIDENT: Well, there has certainly been no dispute notified.

PN52

MR MOORE: There is no dispute notified.

PN53

THE SENIOR DEPUTY PRESIDENT: Not to my knowledge and I think I would be aware of it.

PN54

MR MOORE: Yes. Consequently, my client seeks the orders which are included with the actual application, and we seek that those orders be made for a period of some 3 months. The reason we seek the period of 3 months as the term identified, is that that will encompass the period of the trial that has been agreed and will also allow for the results of those trials to be considered, and it would allow those trials to take place within the areas covered by these distribution centres without the risk of further industrial action taking place.

PN55

As I say to the Commission, if there is a need to go into anything further in terms of the evidence in regard to anything that may be contested by the union in terms of what I have said about the conduct of Mr Etue, or in terms of the effect on Australia Post, I have available persons who are able to give evidence to the Commission. Perhaps it is best if my learned friend can outline the position as he is instructed, or indeed if he needs an adjournment to get instructions on the matters I have raised.

PN56

THE SENIOR DEPUTY PRESIDENT: Yes.

PN57

MR MOORE: Insofar as there is anything in contest, perhaps that can be identified and then dealt with.

PN58

THE SENIOR DEPUTY PRESIDENT: Yes, that is probably an appropriate way to proceed. Now, Mr Reitana, do you want an adjournment to get instructions?

PN59

MR REITANA: I don't know that there is any need to adjourn, but might I just be excused for one moment to clarify one aspect, and I will be very quick.

PN60

THE SENIOR DEPUTY PRESIDENT: Yes, but you don't want a formal adjournment?

PN61

MR REITANA: I don't require a formal adjournment.

PN62

THE SENIOR DEPUTY PRESIDENT: You may have one if you want one, but you don't want one.

PN63

MR REITANA: I don't want one.

PN64

THE SENIOR DEPUTY PRESIDENT: Okay, fine. Yes.

PN65

MR REITANA: There is just one matter. I do sincerely apologise, Commissioner. I have only been able to get instructions on the matter generally since about 4.30 myself.

PN66

THE SENIOR DEPUTY PRESIDENT: My concern was really for Mr Moore who was trying to put his submissions.

PN67

MR REITANA: Could I start by informing the Commission that about 2.30 today there was a national hook up of, as I understand it, senior officials of the CEPU - national office senior officials of the CEPU New South Wales and various representatives of Australia Post, including, of course, Mr Rogan. During the course of that national hook up which went for approximately an hour and 15 minutes, there were a number of issues discussed.

PN68

I could not tell the Commission that the only issue discussed was the issue that I am about to identify but it was certainly dealt with as the main issue, I think, and that is the question that your Honour asked, what is this dispute really about. Mr Moore apparently does not know. There is no opposition, by my client, to the establishment of a delivery centre at Sutherland. The consequent amalgamation of Taren Point and Kirrawee delivery centres into the one delivery centre at Sutherland. There is no opposition by members of my client to that course and that proposal taking place.

PN69

A short time ago - on 20 February, what my friend refers to as an associated matter and we say it is not associated, it is the matter, came before Deputy President Kaufman as a result of which his Honour issued a direction which followed upon certain undertakings and if I put them too high by calling them undertakings, they were at least things Deputy President Kaufman appears to have relied on in making his direction and recommendation that the branch secretary of the CEPU, Mr Metcher, withdraw a direction that he gave in a circular telling members that they not attend any steering committee meetings or management briefings until further written notice. I am instructed Mr Metcher obeyed that direction and complied with it.

PN70

The second aspect of his Honour's direction and recommendation was a recommendation that the briefing processes and facility level consultative processes take place as soon as possible and it would be desirable that the union indicate to its members that it supports those discussions and once again, as I understand it, the union complied with that recommendation, at least for its part. The statements made by Mr Rogan - I can hand to the Commission a copy of the transcript of the proceedings before Deputy President Kaufman if I need to but the important statement that Mr Rogan made to the Commission on 20 November - 20 February when he was appearing for Australia Post was:

PN71

We are committed to making every reasonable...

PN72

It is paragraph 198 of the transcript.

PN73

THE SENIOR DEPUTY PRESIDENT: Yes, I have that, thank you.

PN74

MR REITANA:

PN75

We are committed to making every reasonable effort to complete a proper consultative process.

PN76

Now, could I tender to the Commission a copy of a letter dated 7 February 2003 that Mr Rogan wrote to Mr Borke.

EXHIBIT #CEPU1 COPY OF LETTER DATED 07/02/2003 FROM MR ROGAN TO MR BORKE

PN77

MR REITANA: To the attention of Ms Herrington that says:

PN78

I refer to the meeting held on 3 February on the delivery staffing principles ...(reads)... consultative process.

PN79

Then, importantly, the second paragraph says this:

PN80

Post is committed to ensuring that consultation on the Sutherland delivery centre proposal ...(reads)... with those guidelines.

PN81

I will not trouble the Commission by reading the remainder of the letter but that is the important aspect for the present purposes. Could I then hand to the Commission a copy of a letter from Australia Post over the hand of Mr Muller - M-u-l-l-e-r - sorry, Ms Muller to the secretary of the CEPU dated Wednesday last.

EXHIBIT #CEPU2 LETTER FROM MS MULLER OF AUSTRALIA POST

PN82

MR REITANA: It refers in the first paragraph to an earlier letter and then in the second paragraph:

PN83

As explained in this letter we intend to issue an information pack containing separate ...(reads)... by 3 March 2003.

PN84

I think that is a typographical error:

PN85

I have attached the final version of these documents and advise that we intend to ...(reads)... Thursday, 13 March 2003.

PN86

Now, nothing happened on Thursday, 13 March 2003 for reasons that are not entirely clear but for the union's part it was speaking to its members and being brief on their attitude to this material on that day.

PN87

This morning, without notice, to the CEPU or Mr Etue, a number of employees at Kirrawee delivery centre were asked to attend a meeting with their team leaders. They were mislead as to what the meeting concerned and were certainly not told, in the presence of Mr Etue or anyone, that the meeting concerned an expression of interest document which was to be circulated to the workforce and which they would be required, and I use that word deliberately, which they would be required to complete. I should indicate, Mr Etue wasn't there at that time. The document - it might be useful if I hand a copy of that to the Commission.

EXHIBIT #CEPU3 EXPRESSION OF INTEREST DOCUMENT

PN88

MR REITANA: Thank you, Deputy President. The document was a document, as I have said, and I think it is important because on its face it is inconsistent with what employees were told, was a document that employees were told they must complete. What is important for present purposes is, if your Honour perhaps return to the second page and I can identify fairly precisely, I hope, what concerned the employees. If your Honour looks at the top of the page: Your expression of interest options.

PN89

Your Honour will see the options available to PDOs from Taren Point and Kirrawee delivery centres are as follows, and it is the first four options that are the offensive ones because the first four options involve the creation of a new position. Alternatively put, they involve requiring employees to perform work in a manner different from the manner in which it has customarily been performed and employees were being asked to elect as to whether they would - no withdraw that. Employees were being required to elect as to whether or where in their priorities those options lay.

PN90

Now, this was all in the face of a direction by Deputy President Kaufman that there be consultation and discussion about these matters in the face of Mr Rogan's commitment both in his letter in February and what he said to Deputy President Kaufman in the Commission and more over and perhaps much more significantly, in the face of national discussions that have been continuing about the creation of positions such as these ones which have been occurring at the highest level amongst my client organisation and Australia Post.

PN91

What your Honour see is, to use Mr Rogan's words, pre-emptive implementation without proper consultation. Now, it is against that background and that identification of the issue that this application comes before your Honour. There are two matters that I then need to deal with as a result of some of the things that my learned friend, Mr Moore, put to your Honour. The first is this. It is true that Mr Etue spoke to various members at Kirrawee and Taren Point this morning. It is not true and it is denied that Mr Etue said the CEPU would support a walkout. My instructions are that Mr Etue made it known to employees and members of the union that the union would support these members in relation to this matter, which at that time of course didn't include industrial action.

PN92

Secondly, I'm instructed that we know nothing of any discussion with Mr Etue or any other officer of the CEPU with anyone at Croydon Park in terms of what Mr Moore has put. Certainly, no one - - -

PN93

THE SENIOR DEPUTY PRESIDENT: So there would be no inhibition on working overtime tomorrow or Sunday from the union's perspective?

PN94

MR REITANA: Would you pardon me, ma'am?

PN95

THE SENIOR DEPUTY PRESIDENT: Yes.

PN96

MR REITANA: On my instructions, no.

PN97

THE SENIOR DEPUTY PRESIDENT: Good, thank you.

PN98

MR REITANA: We have been told that there are some delivery centres that have heard about this matter, and have suggested that they will take or were considering whether it was appropriate for them to commence any industrial action, and we have advised them that it is not - in particular, Newcastle delivery centre.

PN99

THE SENIOR DEPUTY PRESIDENT: What has it got to do with other delivery centres?

PN100

MR REITANA: It is the national implication. It is not the delivery centre that is at the core of the problem. It is the two things - the creation of the new position which has implications far beyond this delivery centre, but perhaps equally importantly, the fact that unilateral implementation or creation of the new position without consultation is a matter of grave concern.

PN101

THE SENIOR DEPUTY PRESIDENT: That is a fairly interesting comment to make, given the reason why SDP Kaufman had the matter on in Melbourne; the union in New South Wales' refusal to consult.

PN102

MR REITANA: Yes.

PN103

THE SENIOR DEPUTY PRESIDENT: And he had to issue directions in a recommendation to force the issue into consultation. He said time and time again on the transcript, it is in the union's interest that they consult. They shouldn't have a head in the sand attitude.

PN104

MR REITANA: Yes.

PN105

THE SENIOR DEPUTY PRESIDENT: Now, you are saying to me that centres all over the State are considering industrial action because of the unilateral action by Australia Post to implement the new system without consultation.

PN106

MR REITANA: I'm saying it is a matter of great concern to other centres but we have - - -

PN107

THE SENIOR DEPUTY PRESIDENT: Well, it wasn't a few weeks ago.

PN108

MR REITANA: We were directed by Deputy President Kaufman - - -

PN109

THE SENIOR DEPUTY PRESIDENT: Did you have to be directed?

PN110

MR REITANA: Yes.

PN111

THE SENIOR DEPUTY PRESIDENT: Now you are saying it is of such concern to the people in other delivery centres that there's a lack of consultation. It is just not gelling with me, Mr Reitana. You had to be directed.

PN112

MR REITANA: Indeed. Now it is - - -

PN113

THE SENIOR DEPUTY PRESIDENT: Directed? A few weeks ago, 20 February, and now on 14 March you are complaining the exact opposite, that - it is not just at union level, it is at the delivery centre employee level. They are so concerned that they are all considering taking industrial action, that is more important than the creation of the new position, more importance, yes?

PN114

MR REITANA: I said of equal importance.

PN115

THE SENIOR DEPUTY PRESIDENT: No, you said of more importance.

PN116

MR REITANA: No, I did - - -

PN117

THE SENIOR DEPUTY PRESIDENT: All right.

PN118

MR REITANA: I did start to say that but then I said perhaps of equal importance, I think.

PN119

THE SENIOR DEPUTY PRESIDENT: All right, well of equal importance.

PN120

MR REITANA: In any event, they are matters of concern.

PN121

THE SENIOR DEPUTY PRESIDENT: Well, it is just an interesting history, isn't it.

PN122

MR REITANA: Well, I don't know that it could be held against us that we abided the direction of Deputy President Kaufman and took it on and then were prepared to enter into the process of consultation.

PN123

THE SENIOR DEPUTY PRESIDENT: I understand what you are putting. Nice to see a recommendation supported by the union.

PN124

MR REITANA: For our part that is the relevant history to the matter. What we say is that - - -

PN125

THE SENIOR DEPUTY PRESIDENT: Now, what are you going to tell me about the strike action? Is that definite?

PN126

MR REITANA: Would you pardon me a moment? I will just make sure that my instructions are correct. I think the position is this, that as far as the union is aware the employees concerned will be returning to work on Monday but it is important for the Commission to understand that the union has not authorised any industrial action.

PN127

THE SENIOR DEPUTY PRESIDENT: So they think they are returning to work on Monday or they don't know.

PN128

MR REITANA: Well, as far as we know I think the position, the best I can put, is that we think they are returning to work on Monday.

PN129

THE SENIOR DEPUTY PRESIDENT: Yes.

PN130

MR REITANA: Certainly our position is this, that if Australia Post were to continue the process of consulting about this matter at the national level and was not to press employees for their expression of interest, we would certainly be actively pursuing employees to return to work on Monday.

PN131

THE SENIOR DEPUTY PRESIDENT: Have the expressions of interest been issued at other delivery centres?

PN132

MR REITANA: At Kirrawee and Taren Point only.

PN133

THE SENIOR DEPUTY PRESIDENT: In the whole of the country.

PN134

MR REITANA: Well, I think it is because - yes, only Kirrawee and Taren Point.

PN135

THE SENIOR DEPUTY PRESIDENT: Because that is going to be a trial, is that right?

PN136

MR REITANA: Well, it is said and I should have dealt with this and I apologise, Deputy President, I understood Mr Moore to be suggesting that there was some agreement about a trial. As I understand my instructions there is consultation about the trial, there has been no agreement as a result of that.

PN137

THE SENIOR DEPUTY PRESIDENT: Yes.

PN138

MR REITANA: Certainly there has been at a national level some discussion about that issue of a trial.

PN139

THE SENIOR DEPUTY PRESIDENT: I see. Just the one - at the one centre?

PN140

MR REITANA: Ultimately at the one, at Sutherland.

PN141

THE SENIOR DEPUTY PRESIDENT: I see, thank you.

PN142

MR REITANA: Those negotiations are continuing, as I understand it. There's been no resolution of that by way of any agreement as to a trial or otherwise.

PN143

THE SENIOR DEPUTY PRESIDENT: I see.

PN144

MR REITANA: Mr Metcher reminds me there was one other matter that I should have alluded the Commission to and that is this, that the employees this morning were told, and I did alert the Commission to the fact that they were directed, that they were required to complete the expression of interest form, they were told that if they did not and if there were insufficient takers, as it were, for what I might call the 1 to 4 position that is identified on page 2 of the expression of interest document then outside labour would be brought in to the exclusion of these employees' positions and that would be done with effect from I think 31 March this year.

PN145

Now, if those matters that I have identified, that is the creation of the new position that I've outlined, matters to do with trials and so on, are to be properly the process of some consultative process then the position is that that should be done freely without the threat of either party taking matters into its own hands and implementing things in circumstances where we are content, as I've said, to continue talking about this matter at both a national and local level.

PN146

THE SENIOR DEPUTY PRESIDENT: Yes.

PN147

MR REITANA: Where people can talk without fear of grave consequences.

PN148

THE SENIOR DEPUTY PRESIDENT: Mr Davidson, you are committing the same offence that Mr Reitana was criticised for earlier and Mr Metcher.

PN149

MR DAVIDSON: I'm sorry about that.

PN150

THE SENIOR DEPUTY PRESIDENT: I'm always very even-handed. Mr Moore, there's a little bit for you to reply to. It is my intention to go into conference with the parties. Would it be an appropriate time now or did you want to put your response on the record at this stage?

PN151

MR MOORE: If we could have a short adjournment. There's a couple of matters that have been raised which Mr Davidson was just trying to convey to me needs to speak to me about so if there's an adjournment of, I would say, about 5 minutes and we will be back at quarter to six will probably be right.

PN152

THE SENIOR DEPUTY PRESIDENT: Yes, but did you - I want to go into conference.

PN153

MR MOORE: I think that is not a difficulty. Just if you would bear with me a moment.

PN154

THE SENIOR DEPUTY PRESIDENT: Well, do you want that to form part of your instructions?

PN155

MR MOORE: Yes, I think that is probably the best way of - - -

PN156

THE SENIOR DEPUTY PRESIDENT: It is just that we could go into conference immediately but it is up to you.

PN157

MR MOORE: No, I think it would be best perhaps if I just get the matters that wish to be raised and then when we come back at quarter to 6 I don't think there's any objection to going into conference.

PN158

THE SENIOR DEPUTY PRESIDENT: Have you any objection, Mr Reitana?

PN159

MR REITANA: None at all, Deputy President.

PN160

THE SENIOR DEPUTY PRESIDENT: So we will adjourn until about quarter to 6 and then - is that what you are proposing, Mr Moore?

PN161

MR MOORE: Yes.

PN162

THE SENIOR DEPUTY PRESIDENT: For you to get instructions and then you can indicate whether your client is prepared - Australia Post is prepared to go into conference, whether you want to put something at quarter to 6 or thereabouts on the record.

PN163

MR MOORE: Yes. Well, what I can really say to the Commission is this, there is no objection by my client in going into private conference. All that I wish to have is the instructions that were going to be conveyed to me and if prior to the conference there's something I wish to place on the record, well, I can do so.

PN164

THE SENIOR DEPUTY PRESIDENT: Yes, certainly. All right, we will adjourn for a few minutes.

SHORT ADJOURNMENT [5.40pm]

RESUMED [5.52pm]

PN165

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Marsh.

PN166

MR MOORE: Yes, there is just a few matters, I think that I should just say on the record and can I indicate to the Commission my client then has no difficulty of going into private conference. In terms of the matters raised by Mr Reitana and the matters raised by the Commission in terms of the consultation. My friend read certain extracts from the proceedings before Deputy President Kaufman but can I just refer the Commission to the observations made by his Honour on 29 January 2003 in paragraph 171 where he said in part:

PN167

From the documentation that has been given to me it appears that there has been consultation and that Australia Post has sought to honour its enterprise agreement obligations and has sought to keep staff and the union fully appraised of the situation.

PN168

For that reason he did not accede to certain recommendations that the union were seeking and ultimately, as your Honour observed, had to make directions for the union to engage in the consultation process. In part of that consultation or after that consultation process was directed to be engaged in Mr Prior of Australia Post wrote to the Branch Secretary of the New South Wales Postal and Telecommunications Branch of the CEPU inquiring whether there was going to be compliance with the directions made by Senior Deputy President Kaufman and that he was first of said:

PN169

Please confirm me if I'm wrong but the only withdrawal of the notice is going to be advice at Kirrawee and Taren Point and that there is no advice going to be given to other delivery centres. If I have misunderstood your position please advise me. I also note it is your position not to accept Deputy President Kaufman's associated recommendation.

PN170

And that was recommendation 2 to actually engage in the consultative process. I'm advised that that has never been replied to by - - -

PN171

THE SENIOR DEPUTY PRESIDENT: What date was that letter?

PN172

MR MOORE: - - - the branch secretary. That was written on 28 February 2003 and within it it said this:

PN173

I confirm the briefing booklet provided to and discussed with you this afternoon is the same booklet provided to affected staff previously. I also confirm Mr Etue will consider providing a nomination to join the facility council upon his resumption from leave. As I stated this afternoon, it is important to now commence the expression of interest process for staff. As I explained, we intend to issue a brief information pack containing separate EOI forms for PDOs, relief staff and team leaders. I have attached a copy of each of these to these letters for your information, should you have any feedback please provide it by 5 March.

PN174

There was one final matter and that was that there was associated with the distribution of the EOIs today there was a claim made that a statement was made that on 31 March if there was not volunteers that outside contractors would be brought in. Can I advise that Mr Damien Gallagher who made the presentation today is in Court and he says no such statement to that effect was made to any of employees and to the extent to which the union is advised, in that way it has been misinformed.

PN175

The one thing that I didn't hear from Mr Reitana however in his address to the Commission was that it is quite obvious that the union officials have been in touch with various representatives or at least workers engaged in this current stoppage and there has been no advice to the Commission as to what steps they have taken. If it is not at the direction of the union to achieve a return to work in accordance with the industrial agreements and instruments that bind them and the rules of the union that this action is action which is unauthorised by the union, to the extent to which that is not correct, well, perhaps that can be corrected either in conference or on the record.

PN176

If it is the true position that was it is really occurring that in relation to these employees that they are engaging in, for want of a better way of describing it, wildcat action which the union cannot control, Australia Post may have to treat these people in accordance with the normal disciplinary procedures of Australia Post. They are the only things that I have been asked to put on the record, Senior Deputy President. We are quite content to go into conference in regard to the matters.

PN177

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Moore. Yes, we will adjourn immediately into conference.

OFF THE RECORD [5.56pm]

NO FURTHER PROCEEDINGS RECORDED [6.38pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #CEPU1 COPY OF LETTER DATED 07/02/2003 FROM MR ROGAN TO MR BORKE PN77
EXHIBIT #CEPU2 LETTER FROM MS MULLER OF AUSTRALIA POST PN82
EXHIBIT #CEPU3 EXPRESSION OF INTEREST DOCUMENT PN88