C2002/6003, Transcript of Proceedings [2003] AIRCTrans 1161 (1 April 2003)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER LARKIN

C2002/6003

THE COMMUNITY AND PUBLIC
SECTOR UNION and ANOTHER

and

SEVEN NETWORK (OPERATIONS) LIMITED

Application under section 170LW of the Act
for settlement of dispute re alleged taking
away reasonable access to facilities for
workplace representatives

SYDNEY

10.08 AM, MONDAY, 17 MARCH 2003

Continued from 20.12.02

PN1009

THE COMMISSIONER: Yes, I think appearances remain the same, gentlemen?

PN1010

MR HARTIGAN: Yes, Commissioner.

PN1011

MR INGWERSEN: I have MS PIPER from the CPSU appearing with me today, Commissioner.

PN1012

THE COMMISSIONER: Yes, thank you, Mr Ingwersen.

PN1013

MR RYAN: We are the same, Commissioner, for the MEAA.

PN1014

THE COMMISSIONER: Yes, and you have MR PEACOCK with you, Mr Ryan, thank you. The matter is called on of course, as you know, ladies and gentlemen, to settle the orders arising from my decision in Print PR927845 of 18 February 2003. Has there been any further discussion at all between the parties, Mr Ingwersen?

PN1015

MR INGWERSEN: Commissioner, the parties had a meeting on Monday, 3 March which was in relation to the enterprise agreement and also there was a brief discussion regarding the orders for this matter. The company had, prior to that meeting, provided the unions with a draft order they had prepared. At that meeting we presented the company with a draft order. The company rejected that and basically indicated their view was for the Commission could decide on the form of the draft order.

PN1016

The order we presented to the company on that day has also been provided to the Commission. I think it was faxed to the Commission that afternoon and since that time there's been no further discussions between the parties.

PN1017

THE COMMISSIONER: Yes, all right, then. The union's position is still the same as contained in that particular draft that I received, actually the draft determination from the union is dated 3 March 2003?

PN1018

MR INGWERSEN: That is correct, Commissioner.

PN1019

THE COMMISSIONER: Yes, thank you. Mr Hartigan?

PN1020

MR HARTIGAN: I think that is an accurate reflection of where it stands, Commissioner. Do you want the company to make any submissions at this stage with regard to the form of orders?

PN1021

THE COMMISSIONER: Well, I presume that the parties expect me to determine which order or what order or determination I will actually make.

PN1022

MR HARTIGAN: Yes.

PN1023

THE COMMISSIONER: I've had a look over the draft orders and also revisited my decision at particular points. So I think it is appropriate that I hear the parties, unless the parties don't want to tell me anything and then I can just tell you what I think the orders should be.

PN1024

MR HARTIGAN: I'm happy to address you on the - - -

PN1025

MR RYAN: We, the applicants are also happy to address the Commissioner.

PN1026

THE COMMISSIONER: Yes, that might be appropriate I think, it is a union application.

PN1027

MR HARTIGAN: Certainly, Commissioner.

PN1028

THE COMMISSIONER: Yes, Mr Ryan.

PN1029

MR RYAN: Thank you, Commissioner. Commissioner, I think the problem we see with the company's proposed orders don't actually reflect fully the nature of the case before you nor the decision that you brought down. I think it is important that we go back to basics, look at the dispute that we said exists between both unions and the company and that concerned the definition of the phrase, "reasonable facilities to be provided to workplace representatives".

PN1030

I think in terms of your decision starting at paragraph 5 and then at paragraph 6, it became clear during the course of that case that there wasn't a great deal of difference in relation to the following points as what were regarded as a reasonable facility to be provided by the company to workplace representatives. You allude to that in paragraph 6 of your decision where you refer to the union changing its initial determination sought. So we picked up that there was agreement between ourselves and the company that it was reasonable for the company to provide a phone, a fax machine, access to a locked noticeboard which is point 6 set out in paragraph 5 and the key to the locked noticeboard.

PN1031

Then in (vii) a photocopier, an access to reasonable quantities of paper. That was spelt out in our initial application. Also it was contained in Mr Blakeman's evidence as to what was provided to workplace representatives. We then took up what was a realistic point raised by Mr Blakeman that not all employees simply because of the nature of the work have a computer but that they all have access to a computer. On that basis, we amended our claim to rephrase it, to make access to a computer and printer.

PN1032

It was also clear during the course of the case that we cannot sustain our claim for the provision of a three-drawer locked filing cabinet. On that basis we withdrew that claim as being a matter that need not be provided by the company. It does not fall within the phrase, "reasonable facilities". Then we came down to what was really the matter, if you like Commissioner, was the subject of most of the argument before you was, what access if any to the company's email system and then you determined that in your decision in paragraph - your last paragraph, paragraph 57, Commissioner.

PN1033

You said at your conclusions and your referred back to paragraph 52 which is on page 14 of your decision as being what relates to reasonable facilities in relation to access to the email system. You tied that, as you rightly point out in your decision, that in the context of a dispute over the application of the agreement that it was not open slather for the unions to have access on whatever base we sought for our representatives but that access to the email system for union notices concerning the negotiation application for implementation of the agreement.

PN1034

Then we set out the three provisos which were contained earlier in the company's correspondence to both unions when they offered a more limited access to the system but because that was the context in which you brought down your decision as to access in relation to the agreement, if you like or the implementation of the new agreement or the application of the current agreement, and then to make sure that there were no problems concerning the normal commercial operation of the company's email system. We then set out in paragraphs 1.4.1, 1.4.2, 1.4.3 and 1.4.4 further restrictions of how we can use that and how our delegates can use that.

PN1035

For example, in 1.4.3, once an email is received by a workplace representative from either union or for a joint bulleting, they don't then on-send that email, they print it out and place it on the noticeboard in their area. So those sort of restrictions that the company raised we've incorporated into our draft determination.

PN1036

THE COMMISSIONER: Mr Ryan, just go back. What were you saying about implementation and application?

PN1037

MR RYAN: We are talking about restricting the access that the unions have to email our delegates, Commissioner, to EBA process, if you like. It wasn't open slather about any sort of industrial matter.

PN1038

THE COMMISSIONER: It is my understanding, my decision concentrated on the issue of negotiations of the new EBA. I don't know that there's anything - and take me to it - I don't know that there's anything in my decision in regards to a continuation after negotiations are closed. I just wonder where in the union draft order where they get application or interpretation from.

PN1039

MR RYAN: Well, we've got a situation where this order or the determination should only have a life during the current enterprise agreement, Commissioner, I would have thought.

PN1040

THE COMMISSIONER: Yes, but, no, all I'm saying to you is that I don't think in anywhere in my decision I went as far as talking about information relevant to the EBA other than negotiation. I don't think I went to application or implementation.

PN1041

MR RYAN: In that case, could I say this, Commissioner. We have a number of issues which are outstanding between the parties and some of those issues - in fact the major stumbling blocks between the parties are matters concerning implementation of certain aspects of the current agreement which we seek to have refined, if you like, for the next agreement.

PN1042

THE COMMISSIONER: Yes, Mr Ryan, I think that is going further than the case I had before me.

PN1043

MR RYAN: I suppose in some cases a bit of wording issue rather than what you meant or what we take you to mean because we are negotiating for a new agreement and some of the major issues, if not the major issue, are problems that we have experienced with the company's implementation of some current - some current provisions which both sides are seeking to address a new agreement.

PN1044

THE COMMISSIONER: That is part of your negotiations.

PN1045

MR RYAN: Yes, I expect some - - -

PN1046

THE COMMISSIONER: I didn't have a concern. You see my concern - - -

PN1047

MR RYAN: I suppose it does not really matter.

PN1048

THE COMMISSIONER: Well, it is quite substantial. It has gone, in my view and I have not heard from Mr Hartigan, but your order at 1.4, in my view, has gone further than what was before me in the case and what I determined. It was mainly concentrated in regards to information relevant to the negotiations and quite a bit of the decision, I think I made mention, of the difficulties the parties are experiencing in that regard.

PN1049

The application or implementation is one step further. You say to me you are negotiating for an agreement. Now, hopefully the parties may be able to finalise those negotiations but apart from that, once you do finalise those negotiations, then I would envisage that would be in your agreement. We all know that this is relevant to this agreement. So therefore, application or implementation - number one, I didn't address access to email to that extent and number two, how relevant is it anyway because if you do reach a new agreement and this one is

PN1050

MR RYAN: Look, I think, we put that in - in our own minds the two are sort of tied together but as you rightly point out, if we are negotiating, as we are a new agreement, then the issues such as working on public holidays, which is in the current agreement, is also an issue for the new agreement and then we can just relate to, you know, the negotiation of a new agreement and dealing with the issue of public holidays. So we take your point, Commissioner, if you delete the words "application or implementation" - - -

PN1051

THE COMMISSIONER: Why would not I just pick up the company's 1.1 and 1.2. I mean, isn't that - the company's draft, is it not, on all fours with what was put to me anyway, in one of the exhibits, which was the correspondence from seven to the unions.

PN1052

MR RYAN: Well, I was going to address on what I said was the failing - putting aside that issue for the moment, Commissioner, it does not relate to what are reasonable facilities in relation to the phone, the fax and that.

PN1053

THE COMMISSIONER: No, no, just - that is right. There is a couple of issues here. The first issue is, and correct me if I am wrong, the first issue is did I make a determination that reasonable facilities in corporate phone, fax - access to phone, fax, computer, noticeboard and photocopier. I think that is the first one, did I determine that. The next issue is what are the terms of the order to reflect what I did determine in regards to the email issue at 52. They are the two issues. So we are on the issue of the email and what I just said to you is why would I modify the union's 1.4 when the company's draft order appears to me to be reflective of the offer of settlement put by Seven to the union - if it is not, let me know but it appears to be on all fours and that is what I had accepted, I think, in regards to that issue.

PN1054

MR RYAN: It may well be, Commissioner, the sort of merging of the two may well be the way to go in relation to our 1.4 being replaced with companies 1.1 and 1.2 but keeping our other facilities, if you like. So it may well be - I might just have a quick word with Ms Ingwersen to make sure it is the composition of both unions though, Commissioner. Look, our position would be, Commissioner, if you were to delete our 1.4 and insert the company's 1.1 and 1.2, that would be, from our point of view, a proper termination to reflect your decision.

PN1055

THE COMMISSIONER: What about the company drafted point 2 in regards to the order coming into operation and remaining in force until another certified agreement. I mean, I am sure - well, I don't think that should be a problem but I had best ask you.

PN1056

MR RYAN: I only have a quibble with the phrase "or terminated". I wouldn't quibble if that was related to the termination of the current agreement.

PN1057

THE COMMISSIONER: Well, an agreement can be terminated.

PN1058

MR RYAN: Yes, that is what I am saying. As it is - - -

PN1059

THE COMMISSIONER: I mean, that is just terminology from the Act really. I mean, if it is not terminated and it is not replaced, it still has a life but it can be terminated and it can be replaced.

PN1060

MR RYAN: The other way of doing it, I suppose it in the positive: come into operation 3 March 2003 and shall remain in force for the life of the agreement, which means exactly that. It is going to be overtaken by a new agreement or the current agreement is terminated.

PN1061

THE COMMISSIONER: Do you want me to determine that?

PN1062

MR RYAN: Not really, no. I don't think you want to either, Commissioner.

PN1063

THE COMMISSIONER: No, I don't think we do. I don't particularly have a problem with the Seven's point 2.

PN1064

MR RYAN: As long as it is understood that terminated - does not mean a re-hearing before - - -

PN1065

THE COMMISSIONER: I can't terminate it, you can't terminate it unless you apply to the Commission.

PN1066

MR RYAN: I am just concerned that this will relate to the company seeking to terminate this order rather than it dying by way of the agreement being terminated.

PN1067

THE COMMISSIONER: I see, termination, not - well, you can't - it remains in force until the agreement is replaced by another certified agreement or terminated.

PN1068

MR RYAN: Or the agreement is terminated, yes.

PN1069

THE COMMISSIONER: Well, that is - - -

PN1070

MR RYAN: That is my understanding.

PN1071

THE COMMISSIONER: It is on the record now, that is my understanding also.

PN1072

MR RYAN: In that case we wouldn't have a quibble with that being the order at all, Commissioner.

PN1073

THE COMMISSIONER: Thank you. Mr Hartigan, let us just cut to the chase. The unions are saying they would accept that 1.1 and 1.2 in regards to the access of email, I don't think you are going to argue that point. Point 2, of the company's draft order, I think we have just clarified that and from my perspective that is acceptable. The only remaining issues are the other issues which, I think, your submission to me is going to be you didn't determine it, it did not settle the dispute under section 170LW, therefore you should not do a determination in regards to that, is that the submission?

PN1074

MR HARTIGAN: Slightly different, Commissioner. You did - - -

PN1075

THE COMMISSIONER: Mine is the potted version, Mr Hartigan.

PN1076

MR HARTIGAN: Just in the positive, you did determine and exclude the union's proposal and in paragraph 57 where you said:

PN1077

I decline to accept the union's proposed determination.

PN1078

What we find in those other elements in their draft determination here is effectively their determination put forward again with the addition of some matters in relation to email.

PN1079

THE COMMISSIONER: My apologies for interrupting you. 57 relates to my discussion and determination in relation to email because that, to me, was the major issue. The Part V of the decision and Part VI, that part of the decision, as such, was not a determination. It is outlining what was put to me by both parties. Part V is what the unions are saying they seek, which includes the issue of email, as with other issues. Part VI outlines where that was amended and Part VI also goes in to outline what Mr Blakeman's statement advised me was already provided, which is arguably facilities which VII is of the view is reasonable for workplace delegates.

PN1080

MR HARTIGAN: I suppose, where I come at it from, Commissioner, is the point you made to Mr Ryan, is that the orders need to be within the scope of a decision.

PN1081

THE COMMISSIONER: Within the scope, of the whole decision - read as a whole.

PN1082

MR HARTIGAN: That is right.

PN1083

THE COMMISSIONER: Yes.

PN1084

MR HARTIGAN: And to apply the decision and you made a finding of fact in paragraph 54, which was that there was:

PN1085

No evidence before you that workplace union representatives are experiencing, or have experienced any difficulty.

PN1086

In this regard.

PN1087

THE COMMISSIONER: That is to do with the email access, Mr Hartigan.

PN1088

MR HARTIGAN: There was certainly also no evidence presented - well, there was no evidence at all presented from the union, of course.

PN1089

THE COMMISSIONER: Yes.

PN1090

MR HARTIGAN: But there was no evidence of any difficulties with those other matters.

PN1091

THE COMMISSIONER: No. There is evidence that it was provided.

PN1092

MR HARTIGAN: Then, if it is provided, why is there need for an order to enforce the provision of it?

PN1093

THE COMMISSIONER: Well, I don't know that it is enforcement. What it is, is that it is a determination as into how a particular provision in an agreement is to apply, and the earlier parts of that decision, V and VII, in my view, the parties were not at odds as in II - how the provision of reasonable facilities apply in regards to phone, fax, access to a computer and noticeboards and so on. There was no requirement for me to turn my mind to that and determine that, because on the material before me and on the evidence of Mr Blakeman, it was already there so the company presumed - or the company was of the view that that constituted reasonable facilities. The only outstanding issue between the parties related to access to the Seven email system, and which the vast majority of the decision addressed.

PN1094

MR HARTIGAN: Yes, as you will recall, Commissioner, the company's position from the very beginning was to oppose this application and vigorously oppose the application on several levels.

PN1095

THE COMMISSIONER: Yes.

PN1096

MR HARTIGAN: So this wasn't like a discussion about a possible award provision and different versions about - different views about: what should apply in an award, and: we think this might be in here and the other side say that. It is not that kind of discussion at all. In answer to our opposition the Commission determined that it had jurisdiction to deal with the matter and then determined what were the issues, in what areas it was prepared to make a decision. In paragraph 52 of your decision, you say:

PN1097

I am satisfied that the Seven offer which only deals with emails.

PN1098

Nothing else. No faxes, photocopiers, three drawer cabinets. It only deals with emails. It says:

PN1099

The Seven offer outlined above, as that offer relates to the argument before me of what constitutes "reasonable facilities". Is "reasonable" in the circumstances of the parties negotiating process for a new agreement? I have decided to accept that position set out in the Channel 7 letter as settling the dispute over the application of the agreement.

PN1100

From our view, you in your decision circumscribed where the order should sit and we have picked up the wording directly from the Channel 7 offer and, as being identified, put it in the draft order. The union then wants to go back and re-argue the case about its original proposal which was much broader and things like, access to computers. Now, Mr Blakeman's evidence was not to the effect that the company consents to those things going into an order. Mr Blakeman's evidence was: we have always provided all those things. There is no problem. He has never had a complaint. There is not an issue. So on that basis in our submission - - -

PN1101

THE COMMISSIONER: Well, just on the computer issue, you would need access to a computer if you are going to receive information from your union in relation to the negotiations, don't you?

PN1102

MR HARTIGAN: Yes.

PN1103

THE COMMISSIONER: So you would have to have a computer - you would have to have access to a computer to comply with the Seven draft order anyway.

PN1104

MR HARTIGAN: Mr Blakeman's evidence was that as some of these people work in the field, out of vans and so on, they don't actually have a computer and Mr Ryan's original draft order would have had the company putting computers in the back of vans specifically for this purpose - - -

PN1105

THE COMMISSIONER: Yes, but we moved on from that though, didn't we?

PN1106

MR HARTIGAN: Yes. The only evidence before you was that people do have access to computers, even if they don't always work on one, and that was not contradicted.

PN1107

THE COMMISSIONER: Yes.

PN1108

MR HARTIGAN: So our view is that the simple parameters of the order should be in accordance with your decision as we understand it and that we believe that the draft order that we proposed fits and addresses the matters determined by yourself as being the parameters of any order to be made. That is our submission on that.

PN1109

THE COMMISSIONER: Yes, thank you, Mr Hartigan. Just on another issue, there is a conference between the parties that I have got that I have listed for, I think, 11 o'clock. After I determine this issue, which I will do immediately, I will stay in the hearing room and I wish to talk to the parties in relation to what we do with the 11 o'clock matter.

PN1110

MR HARTIGAN: Yes, Commissioner.

PN1111

THE COMMISSIONER: All right. Nothing further at all, Mr Hartigan?

PN1112

MR HARTIGAN: No, Commissioner.

PN1113

THE COMMISSIONER: Yes, thank you. I don't need to hear from you at all, Mr Ryan. It is unfortunate that possibly I was not clear enough in relation to outlining the other issues in relation to the MEA draft order at paragraph 4 and 6 of my decision. The remainder of my decision in a sense predominantly addressed the access to e-mail and I take on board what Mr Hartigan has said in relation to point 57 and also in relation to paragraph 52 of my decision. I possibly was not clear enough and that is unfortunate and I give my apologies to the parties.

PN1114

However, I had taken it that as I had evidence before me from Mr Blakeman in regards to what Seven considers to be reasonable facilities or access to reasonable facilities by workplace delegates, I envisaged that the order that the parties would put before me would comprehend those issues as outlined in 5 and 6. While Mr Blakeman does not in his evidence, from my memory, address the issue of access to a computer and printer, logic tells you that my determination of the whole matter would require some form of access to a computer and printer.

PN1115

In regards to the other items that had been outlined by the MEA, Mr Blakeman's evidence quite clearly tells me that Seven considers those particular items to be reasonable facilities. Now, based on that and based on my understanding of my decision, the draft order that will issue, hopefully early this week to the parties, will incorporate the MEIs points at their draft order at point 1.1, 1.2, 1.3, 1.5 and 1.6. At 1.4 of the draft order, a determination that I will issue, the company's draft order at 1.1 and 1.2 will be included and the point 2 of the draft order will be that the order shall come into operation from 17 March and it shall remain in force until the agreement is replaced by another certified agreement or until the agreement is terminated.

PN1116

On that basis this matter is now adjourned sine die and the order will issue to the parties this week. I will adjourn, thank you.

ADJOURNED INDEFINITELY [10.37am]