C2003/997, Transcript of Proceedings [2003] AIRCTrans 1292 (9 April 2003)

AUSCRIPT PTY LTD
ABN 76 082 664 220

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

TRANSCRIPT OF PROCEEDINGS


O/N VT2150

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER MANSFIELD

C2003/997

MEDIA, ENTERTAINMENT AND ARTS
ALLIANCE - VICTORIAN BRANCH

and

TICKETMASTER7 PTY LTD

Notification pursuant to section 99 of the Act
of an industrial dispute re rate of pay for
casual staff

MELBOURNE

10.10 AM, WEDNESDAY, 26 MARCH 2003

continued from 26.2.03

PN108

MS A. GOOLEY: I seek leave to appear on behalf of the MEAA and those employees of Ticketmaster7 Pty Ltd who have appointment the Media, Entertainment and Arts Alliance as their agent in this matter and with me is MS L. CONNER AND MS E. MULLANE.

PN109

THE COMMISSIONER: Thank you, Ms Gooley.

PN110

MR I. DIXON: I seek leave to appear on behalf of Ticketmaster7. With me is MS V. MOULATSIOTIS.

PN111

THE COMMISSIONER: Good. This matter concerns the remuneration of a number of employees at Ticketmaster who are employed under Australian Workplace Agreements and as I understand it, the MEAA, acting on behalf of the relevant employees, wishes to argue that the rates set out in the Australian Workplace Agreements should have included safety net adjustments which have been made in recent years but haven't been included in the relevant AWAs, so Ms Gooley, I think I will hand it over to you and take us through your argument, please.

PN112

MR DIXON: Before Mr Gooley starts, can I just indicate Commissioner, as I foreshadowed at our last hearing, we would be grateful if the way it is being put by MEAA, or without seeking to tell them how they present the case but it will be a matter of some interest to see exactly whom they are representing before you, in the sense of what AWA and which person at each time. The arguments generally, we say, go to the very difference of approach between the two parties. This is an AWA, not an award.

PN113

It may be for a number of people, but they are each individual AWAs and each should be addressed at each time. I appreciate that what may be applicable to one person who joins on 15 May 2002 may be applicable to someone else who joins on 16 May, perhaps, but each person should be looked at, we think, and I don't mean that we have to sit here and go through 100 of them but I do believe, and we will be saying that you should be considering what is put by the union on behalf of a person at a time and that is significant from our point of view.

PN114

THE COMMISSIONER: Mr Dixon, it will be necessary, in my view, and this is endorsing some of what you have said, at least, for the MEAA to make a case in relation to specific individuals and obviously I would think that individuals will be here today who will be identified, their particular circumstances will be brought to the attention of the Commission and evidence will be presented in relation to their particular circumstances. Obviously depending on the outcome of the matter, whatever principles are established may have application and probably will have application to all of the other individuals employed by Ticketmaster in similar circumstances. I think the MEAA understands that and I take your point, Mr Dixon, that we do need to have details of individuals and their particular circumstances brought to the Commission to hear this matter.

PN115

MS GOOLEY: Commissioner, if I can just address this matter. As I understood it from the last hearing, there was some agreement between us that we would do that, that is, Mr Dixon pointed out that they were AWAs. We said that we would come - and we had identified basically two groups of people we believed needed to have two questions addressed for them. The first was the question of what the current rate of pay should be in their AWA and whether or not that should be the rate that the company is paying or a higher rate and the second issue was whether or not there was any back pay involved in the thing, so they are, if you like, the two broad sort of issues we are looking at.

PN116

We have - as was suggested, we have identified people who fall into the two groups; that is people who were employed after May 2001 - the May national wage case in 2001 and then again after the May national wage case in 2002 on our understanding that we would, yes, advance certain principles and that you would then make a determination on those matters. Obviously what we are then looking for - we don't want to take up the Commission's time, our members' time nor the time of the company, quite frankly, in arguing 85 cases or however many people we have a bargaining agency there for so I would - - -

PN117

THE COMMISSIONER: I am sure Mr Dixon doesn't expect us to argue 85 cases.

PN118

MS GOOLEY: Well Mr Dixon might want to argue 85 cases because he gets paid by the word, Commissioner, but we don't. What we are after, I guess, is those principles and then we would really see the next step, after you have made your determination, is us again, yet again, sitting with the company and trying to make some, you know, greater order out of what the Commission may determine in this matter.

PN119

THE COMMISSIONER: Yes. Before we go into formal submissions, could I just turn to Mr Dixon again and we did, at the end of the last hearing, we asked the parties to attempt to undertake conciliation - undertake negotiation in this matter to try and resolve the issue without the need for a further formal hearing. Did that progress to a point where perhaps some solution was in prospect? And if there are difficulties in terms of detail in any solution that might have been talked about, is there any scope for the Commission to engage in conciliation prior to the formal hearing of this matter?

PN120

MR DIXON: Well, Commissioner, can I say it is well raised. We did meet with the union and with members of the workforce and go through fairly extensive discussion, based on what had been indicated by you in our last meeting. There has been a subsequent meeting with employees on the AWAs. I am instructed there has been some change most recently about the three or four hour minimum area in that the reduction to the three hour minimum, which was an introduction into the new 2003 workplace agreement, may be restricted to certain circumstances and that was a move by the company which it could cope with operationally and seemed to be a concern. That was most recently.

PN121

In the meeting with the union, the more formal meeting, the company's offer was put by Mr Meggs regarding an overview about where the company should go and that there was a new agreement in place which was being offered and a mechanism in place for dealing with any back pay arising out of any errors which had been made in the past. That didn't seem to reach an accord across the board with everybody on the other side.

PN122

In fact an eight point proposal, I think, was put back to the company, which being present at that, I have to say there was some new elements but probably not unexpected and I am not saying out of left field but for example, the anticipation of the next wage increase - national wage increase but you know, that was something that the company hadn't been focussed on and was really looking to fix what the problems were individually and where we go with a new enterprise agreement. So it is fair to say there was no agreement reached in that meeting but the parties did spend considerable time there and have spent some time since. So that is as we see it and as I am instructed, if the union or the employees have some other view, I am more than happy to hear it and explore it further.

PN123

THE COMMISSIONER: In saying that, Mr Dixon, are you suggesting there may be some scope for conciliation?

PN124

MR DIXON: Well I am just not sure on the points of disagreement. If it is the fact that will we make an offer now which increases the next national wage increase for May 2003, I have to say I have got absolutely no instructions about that and I anticipate that is a sticking point, so we may as well press on. If the movement towards a more restricted application of the three hour minimum goes a way toward solving what the problem is and we continue looking for individual circumstances for back pay, if that is suitable and settles the matter, then the matter is resolved but if there is some other element, then I am happy to hear it.

PN125

THE COMMISSIONER: Yes. My understanding, Mr Dixon, and I will turn to the MEAA in a moment, my understanding is that the core of the dispute relates to the oversight that led to the 2001 and 2002 national wage case adjustments not being reflected in AWAs. That is the core of the dispute and a resolution that goes to issues of is the company prepared now to revisit those AWAs and make an adjustment, in prospect, as though the national wage increases had have been applied to the AWAs.

PN126

MR DIXON: Commissioner, on the central point as to whether the AWAs should be varied retrospectively to reflect a different rate of pay at the time they were entered into by the parties, the answer is no.

PN127

THE COMMISSIONER: I am standing aside the issue of retrospectivity. Obviously that could well be a matter that the MEAA wishes to argue with the company but there is also the issue of is the company prepared to adjust the AWAs?

PN128

MR DIXON: Not on my instructions, Commissioner.

PN129

THE COMMISSIONER: Even prospectively?

PN130

MR DIXON: No. It is offering new AWAs but it has existing AWAs which it maintains.

PN131

THE COMMISSIONER: Yes, well I am talking about the existing ones.

PN132

MR DIXON: No, it has those which it maintains have been made.

PN133

THE COMMISSIONER: And that is the argument here today.

PN134

MR DIXON: Yes. That is the central core of disagreement, will it change the existing AWAs and my instructions are, no.

PN135

THE COMMISSIONER: And so I gather from that there is no real opportunity then for us to talk off the record in a conciliation process around that matter.

PN136

MR DIXON: Well the company puts that the other steps it has taken, apart from changing existing AWAs, by offering new ones with new conditions - which there has been some negotiation on those new conditions such as the minimum hours, goes towards overcoming any of the problems which may be satisfied along with the back payment of those people who have felt or are in error in paying in the past. They overcome the problem but the actual central core of will they change the agreements, no.

PN137

THE COMMISSIONER: Just to make sure I have got this correctly in my mind, if Ms Smith had have been engaged by Ticketmaster on an AWA in 2001 and had an AWA which has continued since then and which hasn't reflected the national wage case increases and here we are now in March 2003, is the company willing now, prospectively, to revisit not that AWA but to offer Ms Smith a new AWA which incorporates the national wage case increases?

PN138

MR DIXON: I think the problem as we perceive, and I am sorry if this causes extra confusion but clarity, to achieve it, is probably worthwhile. The company has made an offer now on new AWAs which will, effectively, and do by quantum, overcome national wage increases which may not have been passed on.

PN139

THE COMMISSIONER: Yes.

PN140

MR DIXON: They will do that. They will offer that new AWA. Will they go to someone who has been employed after May 2001 - and let us take the figures. The figures were someone who joined at 15.36 but if the increase had gone through and they are in, say, June or July of 2001, the rate as we have changed it now is 15.77, will they go back and say to that person we will treat you from June 2001 as having been on 15.77? No.

PN141

MS GOOLEY: Yes they would. They said they would.

PN142

MR DIXON: Perhaps I should get instructions but my understanding is that the essence of what we are here is for people who don't believe they have had the national wage increases passed on because they are paid and they are signed up on 15.36. If that is not the question, I would be happy to hear it, whatever it is. I would be happy to have - yes.

PN143

THE COMMISSIONER: Mr Dixon, just to help you a little bit, I noticed that your principals have just arrived and I should just explain to them we have just commenced the proceedings because we finished the other matter a little early and we are just trying to determine whether there is an opportunity for some conciliation proceedings to occur prior to a formal hearing and I am just going through with Mr Dixon what the company position is, as he understands it.

PN144

MR DIXON: Well, Commissioner, I wonder if I could ask for an adjournment for 10 minutes while I discuss with them - - -

PN145

THE COMMISSIONER: I think that would be well worthwhile. Thank you. We will adjourn for 10 minutes.

SHORT ADJOURNMENT [10.26am]

RESUMED [10.37am]

PN146

THE COMMISSIONER: Good. Mr Dixon.

PN147

MR DIXON: Commissioner, I am grateful for that adjournment. We were discussing the clarification of what is the point - the central point in issue and I think I had indicated and let me put it his way: That if it is a re-write of AWAs entered into after the May 2001 National Wage and after the May 2002, a re-write of the monetary amounts so that the persons who entered into them at that time should have had a notional figure of an adjusted wage rate then the answer was, no, the company couldn't see it would do that.

PN148

What the company has put around as a matter of solution, around that problem is two things: Those that were engaged prior to 2000 and have been engaged under an AWA for all that time and who have not paid or underpaid in error are being addressed, they are, from 2000 onwards. Those, for example, who were engaged after the May 2001 who did not get the National Wage 2002 are being addressed but if you come to this Commission having been engaged after 2002 May and say, my AWA has a figure in it but I want a notional new one, then we say, no.

PN149

But what we do say is around - and the second part of our solution to it, there is on offer an AWA which encompasses the quantums and brings us to date. It has some changes which have occurred last year with a 12 hour minimum. It has some changes about a 3 and 4 hour minimum here which has just been under further discussion with our employees and that is they were 4 under the AWAs, we moved towards 3 which is in the Ticketmaster Award but we are prepared to limit the 3 hour minimum to box office and shifts ending before 12 and that will overcome the problem from here on.

PN150

But if you are still pursuing or what is being pursued is a back pay which essentially we say it is for those people in that gap between those two years, then we say, no. That is - - -

PN151

THE COMMISSIONER: When you say those people in that gap, Mr Dixon, are you meaning the people who were employed when?

PN152

MR DIXON: Take a person who is employed after May 2002.

PN153

THE COMMISSIONER: Yes.

PN154

MR DIXON: And his - and an AWA says 15.36 - - -

PN155

THE COMMISSIONER: And it - - -

PN156

MR DIXON: - - - we understand he says - say he was employed in June 2002, we understand he is saying to the company now, it should be adjusted for the two National Wage notionally and you are owe me from February to June, you owe me nine months as though I had been paid at this notional rate. And that is what we are resisting. It is a back pay because - first of all you have to notionally change an AWA rate.

PN157

THE COMMISSIONER: Yes.

PN158

MR DIXON: And then you have to make a claim for back pay.

PN159

THE COMMISSIONER: So your point, Mr Dixon, is: The area where there may be some disagreement particularly with the MEAA and the individual employees, applies especially to those individuals employed after May 2002?

PN160

MR DIXON: No, there is those who were employed after May 2001.

PN161

THE COMMISSIONER: Yes.

PN162

MR DIXON: At 15.36. They think they - and who say, well, I was not paid from that time because it didn't take in the May 2001 National Wage Case.

PN163

THE COMMISSIONER: Yes.

PN164

MR DIXON: So there is those people in 2001.

PN165

THE COMMISSIONER: So they are in the same situation?

PN166

MR DIXON: Yes, they are. Their claim is - their quantum or their claim is slightly different but the principle is the same.

PN167

THE COMMISSIONER: And do I take it the company is saying though that it now has another, a new AWA on offer which has - - -

PN168

MR DIXON: A 2003 AWA, yes.

PN169

THE COMMISSIONER: Yes. Where if an individual who was engaged in either 2001 after May or 2002 after May wishes to transfer to the new AWA - - -

PN170

MR DIXON: Yes.

PN171

THE COMMISSIONER: - - - they will get a level of remuneration which reflects the National Wage Case adjustments that have been made in the meantime?

PN172

MR DIXON: Yes, it does, I think there is a two cent difference which is just the way it worked out.

PN173

THE COMMISSIONER: Yes.

PN174

MR DIXON: Yes, it does, from now.

PN175

THE COMMISSIONER: From now? But no retrospectivity?

PN176

MR DIXON: No.

PN177

THE COMMISSIONER: Yes, okay, thank you, Mr Dixon.

PN178

MR DIXON: Thank you.

PN179

THE COMMISSIONER: Ms Conner, now, does that outline by Mr Dixon give us any potential for resolving this matter in conciliation?

PN180

MS CONNER: I hope so, Commissioner. I think we can at least perhaps try and move towards limiting the issues where there is - you know, where we are not in agreement at least. Shall I go through my - - -

PN181

THE COMMISSIONER: Yes, please.

PN182

MS CONNER: Okay.

PN183

THE COMMISSIONER: But I would like you to focus particularly on the issue of the remuneration remembering that the ability of this Commission to make adjustments to AWAs freely entered into by individuals and endorsed by the employment advocate as not being in breach of the no disadvantage test is, you know, you had the job ahead of you to get the Commission to do what I think you might like us to do.

PN184

MS CONNER: Okay. Commissioner, I just want to, you know, reiterate what I understand is the sort of issues between the parties. Shall I do that?

PN185

THE COMMISSIONER: Yes.

PN186

MS CONNER: We had three - as I understand it, we had about three meetings or so between Alliance members and some Alliance representatives as representatives of the management of the company. The first was a meeting between our Federal Secretary, Christopher Warren and - - -

PN187

THE COMMISSIONER: Ms Conner, what I would like you to do is come straight to the bottom line and tell me where the problems are.

PN188

MS CONNER: Okay. The problems are this: The first issue is that our members at Ticketmaster7 wish to be dealt with as a collective, they would like to be able to collectively meet with their management, discuss issues, talk about - - -

PN189

THE COMMISSIONER: Okay, understood.

PN190

MS CONNER: - - - what the rates should be and so and forth.

PN191

THE COMMISSIONER: Understood.

PN192

MS CONNER: This is very important, Commissioner, cause that is actually probably one of the most important issues to our members and I would like to say that people were very positive on Tuesday this week when the company's three top people actually met with our delegates committee and we think that that was terrific and that is a step in the right direction.

PN193

THE COMMISSIONER: The first issue then is that they wish to be dealt with collectively.

PN194

MS CONNER: They wish to be dealt with - - -

PN195

THE COMMISSIONER: Yes.

PN196

MS CONNER: - - - as a collective group of workers. The second very important issue to our members is the question of one rate for all work performed at the same level. And the company has come, you know, half way to that, that is the company seems to be indicating that they would also like to reinstate the one rate for the work - of pay.

PN197

THE COMMISSIONER: Yes.

PN198

MS CONNER: All right.

PN199

THE COMMISSIONER: Are the variations in payment for the one level a reflection of this issue involving the safety net adjustments or do they go further than that?

PN200

MS CONNER: Yes. There has only been - the only variations in the rates of pay paid to people at Ticketmaster7, the only variation has been in the last month or so as the company has, you know, made their offer back to the employees about what they think should be paid.

PN201

THE COMMISSIONER: But there is no performance pay issues or anything like that involved here I think?

PN202

MS CONNER: No, Commissioner, no.

PN203

THE COMMISSIONER: Okay, fine.

PN204

MS CONNER: There are several classifications, I would remind you, you know, there is I think three or four classifications - - -

PN205

THE COMMISSIONER: Yes.

PN206

MS CONNER: - - - but at each classification level everyone is paid the same rate for the work.

PN207

THE COMMISSIONER: Yes.

PN208

MS CONNER: So what we had up until, you know, let us say Christmas this year is everyone at the first - bottom level classification level being paid 15.36.

PN209

THE COMMISSIONER: Yes.

PN210

MS CONNER: When our members at Ticketmaster7 pointed out to the company that they hadn't actually followed their own AWAs, that is when we got this first inkling of there being three rates being offered.

PN211

THE COMMISSIONER: Yes.

PN212

MS CONNER: Okay. So our members all along - - -

PN213

THE COMMISSIONER: But that reflects on the confusion that has surrounded the safety net adjustments.

PN214

MS CONNER: Yes, the company's interpretation of how they remedied their error.

PN215

THE COMMISSIONER: Yes.

PN216

MS CONNER: Yes.

PN217

THE COMMISSIONER: Okay, good. And the third issue?

PN218

MS CONNER: Okay, so it is being treated as a collective group of people.

PN219

THE COMMISSIONER: Yes, got that one.

PN220

MS CONNER: It is having one rate for all at the right rate.

PN221

THE COMMISSIONER: Got that one.

PN222

MS CONNER: That is $16.40 rate, okay. The third issue for our members is: To get their one rate for all, they don't want to have to sign a new AWA that binds them to, you know, those conditions for a further three years. Going back to point 1, right, people there would like to discuss with the company changing work practices, maybe improving their agreement or whatever form the agreement might be in, as a group, so they don't want to have to sign a new three year AWA that then binds them to an individual contract to the - if you like from our - - -

PN223

THE COMMISSIONER: Yes, for the three years.

PN224

MS CONNER: - - - members' point of view, a divided strategy for further three years and they particularly don't want to have to sign that AWA, that is to get the rate that they think they should get, one rate, they particularly don't want to have to give up without any - like unilaterally on the part of the company, at least not without a discussion, their 12 hour minimum call in that many of them have in their existing AWA and in the new AWA that has disappeared and secondly, without discussion; without collective discussion the issue of going from a 4 hour minimum call in for any particular shift to a 3 hour minimum call in.

PN225

THE COMMISSIONER: And the - - -

PN226

MS CONNER: Okay. So they like the offer from the company of let us restore the one rate, we agree with that but they don't feel that they should have to sign a new AWA to achieve that because some of them are already on that 16.40 rate.

PN227

THE COMMISSIONER: Yes.

PN228

MS CONNER: All right. The fourth issue the company has raised with our members is the issue of the 3 hour call and they are happy to negotiate that as a group and that is, as I understand it, what was going on on Tuesday. They sat down finally with the company and actually talked about a real live issue and how they might accommodate it and so on and so forth.

PN229

THE COMMISSIONER: Yes.

PN230

MS CONNER: So that 3 hour call issue, that is exactly what we would like to see a little bit more of.

PN231

THE COMMISSIONER: So is that the totality of the areas of dispute?

PN232

MS CONNER: Hang on. And finally, all right, that is the fourth issue is we are prepared - I am happy to discuss the 3 hour call but we don't think that we should have to discuss that in the context of, well, you know, you have to sign a new AWA and to give up certain other rights or whatever.

PN233

THE COMMISSIONER: No, no, okay.

PN234

MS CONNER: Maybe the people would agree to give up the rights but - - -

PN235

THE COMMISSIONER: No, but I just want you to nominate the issues.

PN236

MS CONNER: The final issue is the issue of back pay and we know that we are a long way from the company on that one and maybe at the end of the day that is something that, yes, we do have to get you to arbitrate or determine, you know, in some certain way and maybe we can look at getting agreement on certain issues but, you know - and then look and see what we might do in a negotiating sort of environment over those other issues.

PN237

THE COMMISSIONER: Now, your position on retrospectivity, Ms Conner, is that you believe that the safety net adjustments ought to be notionally made back to the time when they would have applied and the moneys that would have then been paid to the individual employees should be paid retrospectively.

PN238

MS CONNER: Yes. We have got two matters here. The first is we would like - what we came here to do today and if we can do it through negotiation, I am totally happy to do that, is we came to try and get - restore the one rate of pay for all the work, firstly, all right, that is from today or whenever, that is that there would be - we would restore the one rate of pay in those AWAs, that is we would try and abolish this differential that is now in operation in the company and secondly, to put up some arguments about why there should be some back pay owing to certain people because, remember, we have already agreed with company about quite a lot of back pay and that has been paid.

PN239

It is actually about these two groups, the post May 2001 people and whether or not they - the rate they signed on is the rate they, you know, the signed on at - - -

PN240

THE COMMISSIONER: But, Ms Conner, the - I would have thought the issue here this morning is when the MEAA produces an individual employee of Ticketmaster who became employed perhaps subsequent to May 2001 at a particular pay rate, the MEAA wishes to argue that that pay rate that the individual employee signed up to with the company should have been higher. That is - - -

PN241

MS CONNER: Yes. And that is the back pay issue.

PN242

THE COMMISSIONER: Yes. And then you will argue for a - - -

PN243

MS CONNER: Yes.

PN244

THE COMMISSIONER: Yes.

PN245

MS CONNER: Yes, that is exactly right, yes, that is what we would run an argument about.

PN246

THE COMMISSIONER: Yes.

PN247

MS CONNER: Okay, that the rate of pay that the company offered to them was offered in error and in contravention of the Act.

PN248

THE COMMISSIONER: But that doesn't go to this issue of there should be one rate of pay for the one level, for example, it doesn't go to that issue.

PN249

MS CONNER: Well, it does, Commissioner, because we are saying that there is - that the custom and practice of the company is that there was always one rate of pay at one level.

PN250

THE COMMISSIONER: Yes.

PN251

MS CONNER: The only time there hasn't been one rate of pay at one level is since the company was made aware of their error where they have now imposed three rates of pay for each level.

PN252

THE COMMISSIONER: Yes, because of the safety net problems.

PN253

MS CONNER: Because of the - - -

PN254

THE COMMISSIONER: Yes.

PN255

MS CONNER: Yes, their way of looking at how they should remedy their error, yes.

PN256

THE COMMISSIONER: All right, thank you, Ms Conner.

PN257

MS CONNER: Does that make it clear?

PN258

THE COMMISSIONER: Yes, that is - it does. Thank you. Well, just turning very quickly to Mr Dixon because we can't get some light at end of the tunnel here, we might have to go on to a formal hearing but, Mr Dixon, what is being sought by the MEAA on behalf of the employees and I might just ask Ms Conner briefly, how many employees do we have employed on AWAs, roughly?

PN259

MS CONNER: In Melbourne there are, as I understand it, about 150.

PN260

THE COMMISSIONER: About 150. And - - -

PN261

MS CONNER: And we have got about 85 who have appointed us as their bargaining agent.

PN262

THE COMMISSIONER: Of that 150, you have 85 individuals who have said, we want the MEAA to - - -

PN263

MS CONNER: Yes, it might be a little higher or a little lower but it is around that.

PN264

THE COMMISSIONER: Yes, around that number.

PN265

MS CONNER: Yes.

PN266

THE COMMISSIONER: So more than half?

PN267

MS CONNER: Yes.

PN268

THE COMMISSIONER: So, Mr Dixon, the MEAA is asking for, on behalf of the employees, an ability to bargain collectively in a broad sense about the contents of the AWAs. It is seeking that the company give a commitment in regard to a single rate applying to each work level. They wish to have some discussion on the 3 hour call back. They prefer to have more discussions on the content of the AWA before individuals are required to sign up and I think this goes to the point really that you have been making, that there is an offer on the table for individuals which would enable them to secure the - what the MEAA would say is now the correct rate of remuneration which incorporates the safety net adjustments.

PN269

But what the MEAA is saying is that the individuals concerned do not wish to sign up that AWA until there has been more opportunity for discussion between their bargaining agent and the company and so if the offer of the higher level of remuneration is conditional on them signing up to this particular AWA, well, there obviously would be a bit of a delay at least in regard to the resolution of the matter so - they have also mentioned the 3 hour call back issue and the back pay but I take Ms Conner to be indicating that there is some flexibility in the MEAA's position on the back pay matter; on the retrospectivity matter certainly insofar as resolving this in conciliation is concerned.

PN270

So what I am really asking you is, having heard the MEAA's outline of its position on behalf of the employees, what is your view as to our ability to continue this in a conciliation process?

PN271

MR DIXON: I don't think it goes very far, Commissioner, with regret. We didn't hear - I didn't hear the same optimism regarding the very core issue here which is that there is a claim for back pay based on the AWA notional and actual rate and the very fundamental issue we are here. I heard that there might be some flexibility but there is also a claim for individuals which has persisted to this date for some time despite other attempts to settle other things.

PN272

What we have fundamentally is a workplace which negotiates AWAs with its people and that goes to the core of what a lot of what Ms Conner was saying. We will negotiate with bargaining agents, MEAA or anyone and we will do so individually or collectively depending on what the people who authorise their agents do. We have no problems sitting down if there are 80, and we doubt that figure, but that is all right. We have no problem negotiating with them but we are negotiating AWAs.

PN273

Other avenues are available to the union and always have been and this avenue is available for us and it has always been that way. That causes problems to MEAA perhaps cause they don't like it and some of the employees may not like it. I understand that. But then on the other hand if you go to a workplace which is fully unionised and walk into a building site you have no option but to be represented by one union and deal with one award so there are problems in life but we are dealing with our people, this is not a question necessarily that people are not being paid well, just being paid differently.

PN274

It goes to the assumption, for example, being made by the MEAA that everyone is exactly the same. We are not going to disclose openly what other people are getting, if there is any variation as to rates, hours or arrangements we have. Everyone has worked and co-existed quite well. The company reaches agreements with people as they come in and if we need to - it is special requirements often pressed upon the company by the employee about, I would rather not work then but then and we arrange it and we do so with a great deal of flexibility.

PN275

It doesn't cause any problems. We don't restore one rate. We are reaching a rate which we hope is the going forward rate from now. Yes, and we do offer it. If people don't want to take the new one, they have their existing one. It is as simple as that. The idea of restoration of one collective rate is again drawn from this collectivism rather than where we are with individuals but we will talk with people. If they wish to talk to us, as they did recently, we will discuss it with them.

PN276

We have people signing up to AWAs at the moment; the present ones, from old ones plus new. They are happening already but I am not in a position and nor should we be called upon to say who are they and why are they signing up. They are freely signing up. If there is any question of duress, bring it forward but it is not happening. So we can't. The fundamental issue is, I mean, if the retrospectivity goes away, there is no claim, absolutely no claim, guaranteed from everybody else.

PN277

I mean I would take that to the company and say, well, what do we think but then we come down to a position where the company has made an offer of this figure and an AWA based on these terms and conditions. It goes back to what would happen if rates had changed earlier. What would the company have done a year ago if rates had changed? The company probably would have tried to move away from 12 hour minimum and all new people coming and starting would have been offered an AWA without a 12 hour minimum earlier. We can't say.

PN278

THE COMMISSIONER: Mr Dixon, can I just break in there please and just - from what Ms Conner has outlined, there is a number of issues which are outstanding in terms of the wishes of the group of employees who have asked the MEAA to bargain collectively on their behalf.

PN279

MR DIXON: True.

PN280

THE COMMISSIONER: Yes. The company has essentially agreed that going forward it will now be paying a remuneration level which reflects the 2001 and 2001 safety net wage adjustments.

PN281

MR DIXON: It is offering that, yes, it is.

PN282

THE COMMISSIONER: It is offering that.

PN283

MR DIXON: Yes, it is.

PN284

THE COMMISSIONER: So that is not really in dispute. And on the - you know, basically how could it be because at some point in time the award will be varied to incorporate both of those matters and you can't pay less than the award rate, on the face of things. But there are these other matters of one rate for work at the same level which - maybe that

PN285

is a claim by the collective group but that is what they would like for their AWAs but at the same time I think the point you are making is: If there is a group - if there are individuals outside of the group that is being represented by MEAA who say to us - to the employer that they want a variation on - in some way, shape or form to the - what I could refer to as the standard AWA, the company is willing to consider that and may vary it.

PN286

MR DIXON: When we have entered to into, Commissioner, when - - -

PN287

THE COMMISSIONER: No, no, no, I just wanted to get it clear.

PN288

MR DIXON: Yes.

PN289

THE COMMISSIONER: The company is willing to consider that and it will negotiate individually with those employees who are not in the collective group and who want to a variation and the company will make a decision whether the variation is in the company's interest as well as the employee's interest. Now - - -

PN290

MR DIXON: I don't think I said a variation so much, Commissioner, I said there are varied terms within the workforce. I didn't necessarily say people could just come up and we would just vary them which is being sought here. There are - - -

PN291

THE COMMISSIONER: No, I am not saying that. I am saying there has to be an agreement between the company and the employee.

PN292

MR DIXON: Quite right.

PN293

THE COMMISSIONER: And the company will agree in some instances, it won't agree in others. And there will be an AWA resolved which won't necessarily reflect the AWA - it won't be identical to the AWA negotiated collectively which is - - -

PN294

MR DIXON: That is the very essence of an AWA and the flexibility.

PN295

THE COMMISSIONER: Of course.

PN296

MR DIXON: Yes.

PN297

THE COMMISSIONER: And Ms Conner has also mentioned the 3 hour call back issue and so forth but what the company seems to me to be saying is: If the MEAA and the employees wish to have a retrospectivity applied to this "error" which has occurred, in their eyes; in the MEAA's eyes, the company under no circumstances will agree with that.

PN298

MR DIXON: The company certainly rejected that claim. The depth and extent of variation is one thing. The negotiation of AWAs that people entered into are other. The change to an AWA during its life is a third. The negotiation with bargaining agents is a fourth, Commissioner.

PN299

THE COMMISSIONER: Yes.

PN300

MR DIXON: All of these are separate. What we are seeing here is a claim by people with existing AWAs who are seeking a variation to secure a back payment. And the answer of the company to that, to their bargaining agents of those people is, no.

PN301

THE COMMISSIONER: Yes, that is - - -

PN302

MS CONNER: Commissioner, that is not what we are asking for, Commissioner.

PN303

THE COMMISSIONER: Ms Conner, just sit down for a tick.

PN304

MS CONNER: That is not what we are asking for.

PN305

MR DIXON: These other elements about will we negotiate with these people are separate for what we thought we are here for - - -

PN306

THE COMMISSIONER: Yes.

PN307

MR DIXON: We are here, as we understand it, the core issue is: Is this a claim for back pay for people who have been employed after May 2001 and 2002.

PN308

THE COMMISSIONER: Yes, okay.

PN309

MR DIXON: And to that extent, you are quite right, the answer is, no.

PN310

THE COMMISSIONER: Okay, that is fine. Ms Conner, just remain calm please. Thank you.

PN311

MS CONNER: Commissioner, I was actually just going to make a suggestion about how we proceed and that might be that - - -

PN312

THE COMMISSIONER: Well, I am going to make a suggestion myself in one moment because I want to see yourself and others in MEAA privately for a couple of minutes and then I want to come back and see if we have got any scope for resolving this matter by conciliation. So I think it possibly is an opportune time right now actually for me to call another five minute adjournment.

PN313

MR DIXON: Certainly, Commissioner.

PN314

THE COMMISSIONER: And I would like to talk to MEAA privately.

PN315

MR DIXON: Certainly, we will leave.

PN316

THE COMMISSIONER: No, we will go out the back here. So the matter is adjourned for five minutes.

SHORT ADJOURNMENT [11.03am]

RESUMED [12.18pm]

PN317

THE COMMISSIONER: All right. We are going back on the record to report on a series of discussions that have occurred this morning between the Commission, the MEAA representatives and Ticketmaster, the employer.

PN318

It is my intention to make a recommendation which I want to outline here but I will make a formal recommendation in writing in about 30 minutes time and the recommendation will essentially be this.

PN319

That Tickmaster, the employer, and MEAA acting on behalf of a number of employees of Ticketmaster undertake negotiations on the Australian Workplace Agreement which should apply to the employees who have authorised Ticketmaster to act on their behalf.

PN320

The negotiations that I am proposing will be somewhat compressed and should be completed inside of two weeks from today's date, or I will say that they should be completed by 11 April. Today is, of course, Wednesday - that is Friday of the week that we were talking about.

PN321

In those negotiations Ticketmaster should accept that if the negotiations are successful there will be a minimum pay rate incorporated of $16.40 per hour and the MEAA should accept that the $16.40 per hour will represent the base rate in the new pay scale. That amount of $16.40 per hour should apply from today's date, on the condition that the negotiations are successful.

PN322

If the negotiations are successful the MEAA should, in my view, discontinue its argument in relation to retrospectivity for the AWAs entered into post May 2001 and May 2002. That is the essence of the recommendation that I would intend to make which gives the parties then an opportunity to negotiate together to try and resolve the outstanding issues.

PN323

I would certainly encourage the employer, Ticketmaster, to enter into those negotiations with an open mind in regard to the issues that the union may wish to raise on behalf of the nominated employees. But I would also caution the MEAA that as the union is already aware, there has been a number of employees who have already signed up to an AWA and obviously the company will have a fairly firm commitment to the terms of the AWA that it has been offering in recent times and so neither party should go in there with unrealistic expectations as to what might be achieved - but, as I say, the Company should not go in there with a closed mind as to any of the proposals which the MEAA wishes to put on the table.

PN324

So that is an outline of the recommendation I am proposing. Does anyone wish to make a comment at this stage? Otherwise I will go away and put that into a more formal piece of paper and bring it back in about 30 minutes time? Ms Conner, do you want to say anything? I am not asking - I am not encouraging you to, but - - -

PN325

MS CONNER: No, Commissioner.

PN326

MR DIXON: Commissioner, in the interests of even-handedness, nor do we.

PN327

THE COMMISSIONER: Thank you. Thanks, Mr Dixon. This matter is adjourned until 1.50 and we will come back at that - sorry, 12.50, and I will come back with a written recommendation at that time.

SHORT ADJOURNMENT [12.25pm]

RESUMED [12.59pm]

PN328

THE COMMISSIONER: My associate will give out a copy of the recommendation I am about to make and this is the recommendation which follows on our proceedings this morning.

PN329

Having heard the parties to the above matter outline their respective positions in relation to the application of the 2001 and 2002 safety net adjustment to employees of Ticketmaster7 Pty Ltd, employed on Australian Workplace Agreements, the Commission recommends:

PN330

(a) that negotiations take place between the Media Entertainment and Arts Alliance (MEAA) as the nominated bargaining agent for a number of Ticketmaster employees and Ticketmaster in regard to the preferred content of the Australian Workplace Agreements which should apply to those employees:

PN331

(b) the negotiations to be completed by Friday, 11 April;

PN332

(c) subject to the negotiations reaching agreement:

PN333

(i) Tickmaster and the MEAA agree that the base rate of remuneration to employees be $16.40 per hour;

PN334

(ii) the date of effect of the agreed hourly rate to be 26 March 2003;

PN335

(iii) the MEAA discontinue its claim for retrospective payment made on behalf of a number of employees in relation to the 2001 and 2002 safety net adjustments.

PN336

2. The Commission is available to assist with the negotiations if that was considered helpful by the parties.

PN337

3. Should the negotiations not result in agreement, the parties retain their right to seek further Commission hearings of the dispute.

PN338

And that is a recommendation I am making to the parties. I would appreciate it if representatives of the MEAA and Ticketmaster could advise my office as soon as practicable as to whether the recommendation is accepted.

PN339

And hopefully that could be before the close of business tomorrow night and obviously in relation to the negotiations there is a period of a little over two weeks for those to be undertaken and it would be necessary for those to be commenced as soon as possible.

PN340

Now there were two matters which were raised by the MEAA this morning in relation to the - to requests to the President of the Industrial Relations Commission. One went to the issue of the 2002 Safety Net Adjustment and one went to the issue of retrospectivity.

PN341

Both of those matters are contained, by reference, in the recommendation and so what I propose is that until the outcome of this recommendation is clear, and that is assuming that it is accepted by both parties, until Friday, 11 April, I wouldn't convey those requests to the President of the Commission for him to consider those two matters because if you reach agreement the matters are actually resolved.

PN342

Now unless anyone has anything they wish to put on the record I propose to adjourn these proceedings. No? Good. Thank you very much. This matter is now adjourned.

ADJOURNED INDEFINITELY [1.02pm]