AG2002/5996, Transcript of Proceedings [2003] AIRCTrans 1412 (16 April 2003)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 4, 179 Queen St MELBOURNE Vic 3000
(GPO Box 1114 MELBOURNE Vic 3001)
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TRANSCRIPT OF PROCEEDINGS

O/N VT2199
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER SMITH

AG2002/5996
BP2002/10283

CONCILIATION IN RESPECT OF
AGREEMENTS

Application under section 170NA(1) of the Act
by CPSU, the Community and Public Sector Union re
conciliation in relation to proposed agreement

NOTICE OF INITIATION
OF BARGAINING PERIOD

Application under section 170MI of the Act
by the Community and Public Sector Union re
notice of initiation of bargaining period

MELBOURNE

12.06 PM, WEDNESDAY, 2 APRIL 2003

Continued from 6.2.03

THIS HEARING WAS CONDUCTED BY VIDEO CONFERENCE
AND RECORDED IN MELBOURNE

PN840

THE COMMISSIONER: Now, Mr Wood, you have sought a brief directions hearing.

PN841

MR WOOD: Yes, Commissioner. Commissioner, there has been some correspondence between the parties. The CPSU sent you a letter, or sent us letter and copied it to you, dated 17 March. We responded by letter of 31 March which we copied to you and, sorry, letter 21 March which we copied to you and then we sought this directions hearing of 31 March. As we see things, Commissioner, this matter started on - the first hearing of this matter was on 17 December, there were two applications on foot at that stage - an application under section 170NA and an application under section 170MI.

PN842

At that hearing of 17 December Mr Gardner appeared for Sensis and he wanted the opportunity to put in some submissions upon jurisdiction in relation to the section 170NA application. You gave him that opportunity and gave the CPSU a right of reply. The matter then came back on for hearing on 6 February. At that stage the CPSU dropped off the application under section 170MI and you determined part of the jurisdictional argument in relation to the 170NA matter and you published your reasons on 17 February.

PN843

The matters remaining therefore on the section 170NA application, as we see it, are for the CPSU to define what the matter arising under Part VIB is and I don't think I am speaking out of turn to say that I think you agree with that Commissioner because you have said something to that effect in your reasons for decision of 17 February - but obviously I don't want to verbal you on that. And the second matter is for the CPSU to identify the relief available by way of conciliation that it wants under section 170NA.

PN844

Of course it has already identified two forms of relief. We are content to proceed on those two forms of relief but after identifying the matter arising under Part VIB the CPSU may want to modify the form of relief that it seeks. We don't have any objection to that as long as we are given time to deal with that. If that is done before Monday then we can deal with the remaining - the remainder of the jurisdictional argument on Monday and we see that as the appropriate way to proceed on Monday.

PN845

We haven't had any response, as I understand it, from the CPSU to our letters so perhaps I should allow Mr Jones to speak, Commissioner, before I develop our submissions on why those are the appropriate directions.

PN846

THE COMMISSIONER: Now the relief that is sought is reflected, I think, in paragraph 6 of the decision isn't it, that:

PN847

The CPSU be present and participate at the next negotiating meeting or that the Commission conduct a secret ballot of the staff representatives to enable them to express a view as to whether or not they wish the CPSU to be present and participate at the negotiating meeting.

PN848

MR WOOD: That might be right, Commissioner. I think we set out the form of relief in paragraph 1 of our submissions, which were marked Sensis1.

PN849

THE COMMISSIONER: Yes.

PN850

MR WOOD: If that corresponds with what is in paragraph 6 of your decision then the answer is "yes".

PN851

THE COMMISSIONER: Yes.

PN852

MR WOOD: But it may - as we understand it, that is - paragraph 1 is what they seek. This may be - I haven't compared the two, Commissioner.

PN853

THE COMMISSIONER: Yes. Similar.

PN854

MR WOOD: They are very similar, yes.

PN855

THE COMMISSIONER: Similar.

PN856

MR WOOD: Yes.

PN857

THE COMMISSIONER: Although the emphasis might be on a different syllable.

PN858

MR WOOD: Correct.

PN859

THE COMMISSIONER: All right. Thank you. Mr Jones.

PN860

MR JONES: I advise the Commission that we have a change of appearances and I appear for the CPSU.

PN861

THE COMMISSIONER: Yes, thank you.

PN862

MR JONES: In anticipation that Mr Wood may raise the issue of relief I have, albeit late, forwarded to both your associate and Mr Gardner of Freehills a copy of draft directions. Perhaps Mr Gardner through Mr Wood could confirm whether the company has received copy of those directions.

PN863

MR WOOD: Mr Gardner is not here, Commissioner.

PN864

THE COMMISSIONER: No. You have no instructions on it?

PN865

MR WOOD: No.

PN866

THE COMMISSIONER: Have you sent it - you have sent it to a fax number, have you, in the Commission?

PN867

MR JONES: I have sent it by facsimile - by e-mail, Commissioner.

PN868

THE COMMISSIONER: By e-mail. All right.

PN869

MR JONES: Nothing swings on it except to this, in anticipation of the point that Mr Wood raises, we have committed to writing a draft direction so the matter is squarely before the Commission and squarely there for the company to meet in proceedings on Monday.

PN870

THE COMMISSIONER: Yes. Well why don't I briefly adjourn and see whether I can call that up on our e-mail and then we will have before ourselves.

PN871

MR JONES: Yes.

PN872

THE COMMISSIONER: You have got a copy in Sydney?

PN873

MR JONES: I have two copies in Sydney, if it hasn't arrived in Melbourne I can have it faxed.

PN874

THE COMMISSIONER: All right. Well we can contact you in that Court but I will adjourn briefly and try and up-lift that document.

SHORT ADJOURNMENT [12.12pm]

RESUMED [12.25pm]

PN875

THE COMMISSIONER: You have a copy, Mr Wood?

PN876

MR WOOD: Yes, I do. Thank you, Commissioner.

PN877

THE COMMISSIONER: Good. Yes, we all have a copy now. Thanks, Mr Jones. It seems that the servers were particularly aggro this morning. It took us nearly an hour to get your e-mail.

PN878

MR JONES: I seek to take no advantage of that fact, Commissioner, indeed to the extent that it is required I tender any apology for any inconvenience.

PN879

THE COMMISSIONER: No trouble at all. No. I am sure the powers of the CPSU don't extend to servers.

PN880

MR JONES: They certainly do not - including to our own. Can I start by simply saying this: we don't oppose directions. We simply submit that that they should not delay the proceedings and that they should allow for the speedy determination of all questions of fact, law and merit, and to the extent within our powers that that should be able to be done on Monday in the matter before you.

PN881

THE COMMISSIONER: Yes.

PN882

MR JONES: In relation to the matter, the question of the matter, that is said to be before the Commission, we contend that the CPSUs case can be simply stated, and that is that the controversy - the matter is the controversy over representation, timing, content, format, etcetera of discussions which will occur to determine the wages and conditions of employees - - -

PN883

THE COMMISSIONER: I think you had better take me back a bit so that I can write that down, sorry.

PN884

MR JONES: Yes. And we can have this committed to writing and served - - -

PN885

THE COMMISSIONER: I would be pleased and if you could equally e-mail to myself and to Mr Gardner what you say the matter is.

PN886

MR JONES: Yes. I am happy to go on the record now and simply state it.

PN887

THE COMMISSIONER: Yes.

PN888

MR JONES: And that is that the controversy over representation, timing, content and format of discussions which will occur to determine the wages and conditions of employment through a proposed certified agreement biding CPSU members and other Sensis employees. To the extent, Commissioner, that it is tautologous, we also say that the matter before the Commission is the content of the bargaining period at CPSU1, CPSU1 being the particulars which a company - the notice of bargaining period, and we draw the Commission's attentions to paragraphs 3 and 4 and, finally, the determination of the bargaining unit. As I say, there is certainly some overlap between each of those issues but in the CPSU submission that is the matter before the Commission.

PN889

THE COMMISSIONER: All right. Thanks, Mr Jones. Mr Wood, is there anything else we need to clarify?

PN890

MR WOOD: No, Commissioner, other than if the matter is set out in writing then we can have a debate about whether the matter as defined is a matter arising under the Act. I don't - - -

PN891

THE COMMISSIONER: I can make this transcript available by tomorrow sometime, which it - - -

PN892

MR WOOD: Yes, well it might be that Mr Jones wants to consider the precise words because if - given your finding, if what is said to be the matter relates to your finding of a duty to bargain in good faith, then we are not going to need to take up too much time on Monday to agitate a dispute about whether or not there is a matter arising under the Act, given the finding. Does that make sense?

PN893

THE COMMISSIONER: Yes, I think so.

PN894

MR WOOD: It doesn't appear to me, just on first blush, that what Mr Jones has suggested is the matter is - relates to your finding of a duty of good faith - an obligation to bargain in good faith. Now if it was put in those terms and anchored in some facts, that is describe what the controversy is other than just saying there is a controversy, it may be that when that is articulated if it is anchored in the duty to bargain in good faith that our debate on Monday will be rather limited. And I just say that for the sake of progressing the proceeding.

PN895

THE COMMISSIONER: Yes.

PN896

MR WOOD: Because Mr Jones said he doesn't want the matter to be delayed. We don't want the matter to be delayed given we have got an order that prevents us from bargaining for six months.

PN897

THE COMMISSIONER: Yes.

PN898

MR WOOD: So we are not in any - we don't want to have unnecessary argument on that issue. So if there was a direction that the matter arising under Part B be set out in writing by the CPSU by Thursday or by Friday, we don't really matter but perhaps give us a little time to consider it perhaps by close of business tomorrow. Then the next issue is to determine what the orders are that are sought pursuant to that matter, as an exercise in conciliation. Now as I understand it is Order 2 of the draft directions that are sought.

PN899

THE COMMISSIONER: Yes.

PN900

MR JONES: I note that the cover letter says:

PN901

The attached directions -

PN902

sorry, the cover e-mail -

PN903

are those which the CPSU seeks the Commission make arising out of Monday's proceedings and are not proffered as a way in which to conduct the hearing on Monday.

PN904

I am not entirely sure what that means but we obviously need to know what the CPSU seek by way of directions prior to Monday, again by close of business Thursday. And if this is the direction that they seek we can tailor our submissions in relation to that direction. If it is something else then perhaps Mr Jones can be given till tomorrow afternoon, 5 o'clock tomorrow, to draft a more comprehensive direction that then can be the subject of debate on Monday and the debate being whether there is a matter arising under the Act, whether the directions sought are the exercise of conciliation powers - and those are the two remaining jurisdictional arguments, as I understand things.

PN905

If at the end of that debate on Monday the Commission is against us on our argument there is no matter arising under the Act and that the directions sought are not - are available to the Commission as an exercise of its conciliation powers, we would think at that stage - that is some time on Monday the directions are given for the filing and serving of witness statements, etcetera, we would prefer obviously a shorter period than a longer period to determine the merit of the matter, but obviously we should wait until the Commission has made a decision as to whether or not there is a matter arising under the Act.

PN906

Whether or not the orders sought are in the nature of conciliation powers, before orders are made we would submit for the filing and serving of witness statements because all that might be unnecessary. It might end up being necessary but it might not, depending on how the CPSU define the matter, what the orders - how they define the orders they seek and what the Commission's view of the matter and the orders are. And we think that is the most sensible way to proceed.

PN907

THE COMMISSIONER: All right.

PN908

MR WOOD: And we simply just ask for those two directions that we have indicated to be made.

PN909

THE COMMISSIONER: Thanks, Mr Wood. Mr Jones, if there is anything else you want to put other than what you have said in the transcript, the transcript will be made available tomorrow lunchtime, roughly. It is not a long transcript.

PN910

MR JONES: No. Can - - -

PN911

THE COMMISSIONER: Yes.

PN912

MR JONES: Simply this, to clarify my covering note to your associate, Commissioner, what I meant by the statements in that note were simply this - and it should be understood in the context of Mr Gardner's request that directions be granted today. I wanted to make it quite clear that the attached draft directions were not the directions that I was seeking the Commission to issue today.

PN913

THE COMMISSIONER: Yes.

PN914

MR WOOD: Sorry, yes.

PN915

MR JONES: Yes. I hope that is abundantly clear to Mr Wood.

PN916

MR WOOD: Yes.

PN917

THE COMMISSIONER: Yes. All right.

PN918

MR JONES: We don't resist directions we can undertake in any event by close of business today where we will have our contentions on the matter committed to writing and forwarded to both your associate and to Mr Gardner. We do raise one concern however in relation to the determination of the matter before you. The matter is this, that there is an employee at Sensis who will be in attendance upon issuance of - pre-existing issuance of summons, that will be Mr Chris Breen.

PN919

Mr Breen is available to give evidence to the extent that what we contend to be the matter contains mixed questions of fact and law and that - to the extent that the employer puts any of those questions of fact in issue.

PN920

MR WOOD: For our part, Commissioner, for the purpose of the jurisdictional hearing we will accept that whatever the union says to be the matter is the matter that they might ultimately prove. It may be when we hear the merits of the question that you find that there is no breach of the implied duty to bargain in good faith because of a range of circumstances. You may well find that there is. But for the purpose of Monday, it is merely for the CPSU to define what they say their case is, at its best, what is the matter arising under the Act, what is it they seek and whether the Commission has jurisdiction to hear that matter and then whether the Commission has power to make those types of orders.

PN921

Whether the CPSU ultimately proves that such a matter exists and whether it proves that there has been a breach of the order and whether it proves - that is the breach of the obligation to bargain in good faith - and whether it proves to your satisfaction that those types of orders are necessary, are all matters for the evidence. And that is the reason that we think this matter should be truncated to avoid - sorry, "truncated" is the wrong word, dealt with jurisdiction first then merits to avoid the calling of the voluminous evidence that would be necessary to show whether or not the obligation to bargain in good faith has been breached.

PN922

Because the CPSU will call witnesses to set out some background facts and there will be differences of emphasis from each of the witnesses called by the CPSU and by us as to what went on in these meetings, whether different shades of meanings can be given to conversations and to the way in which the matters were progressed. And we think that is better to be dealt with after the Commission decides it has got jurisdiction to deal with it.

PN923

THE COMMISSIONER: Yes, I follow. Mr Jones.

PN924

MR JONES: I have nothing more to say on the matter, Commissioner.

PN925

THE COMMISSIONER: Very well. Well, let me ask this, there is two summonses out. Are those persons required to attend or can I excuse them from attendance at the next sitting day?

PN926

MR JONES: Well, Commissioner, that rather depends on whether you decide to accept my friend's proposal as to how the matter should proceed.

PN927

THE COMMISSIONER: I see.

PN928

MR JONES: If the Commission needs to be satisfied that the mixed questions of fact and law are as the CPSU states them before making a finding and then request that the summons continue. And we will - - -

PN929

THE COMMISSIONER: All right. Well then I won't excuse the two persons concerned. We will just hear what people have to say on Monday.

PN930

MR WOOD: Well, Commissioner, can I just get some instructions on that, on that point?

PN931

THE COMMISSIONER: Yes. All I am saying is I am not pre-determining whether or not their evidence will be heard.

PN932

MR WOOD: Yes. Yes.

PN933

THE COMMISSIONER: And by making a decision to not pre-determine, unfortunately they have to be here.

PN934

MR WOOD: Yes, I - I understand what you have said, Commissioner. The - we were trying by this process to have this hearing here today to make it clear that witness evidence wouldn't be required on Monday and that the jurisdictional argument be heard and determined and then directions be given for witness evidence, including witnesses by summons. We would prefer for your part a decision to be made on that point today, that is whether there will be the finalisation of the jurisdictional hearing on Monday or whether there will be the finalisation of the jurisdictional hearing plus other evidence on Monday.

PN935

We, for our part, can't see there any detriment in proceeding along the route that we have suggested. The only one that suffers, as we can see it, is Sensis who has an order against it that it obviously doesn't want.

PN936

THE COMMISSIONER: Yes.

PN937

MR WOOD: And we can't see any reason why the jurisdictional argument shouldn't be finalised and then if necessary evidence called through the proper way, that is through considered witness statements and summonses. And we would formally ask that the summons issues either be revoked or the CPSU not call them on because we don't see the point of putting these employees to the trouble of coming here when there is just going to be a jurisdictional argument on Monday.

PN938

THE COMMISSIONER: Yes. Mr Jones.

PN939

MR JONES: Commissioner, I merely want to state this and I want to state this for the record - to make the union's position plain.

PN940

THE COMMISSIONER: Yes.

PN941

MR JONES: The union does not see any advantage to itself, or those whom we represent, accruing by the - by the extension of time of this matter, by the orders stopping bargaining now continuing, other than they are there to facilitate the final determination of the matter. So let us make it quite clear, the union has not interest, or interest in pursuing a course of action which will delay these matters being determined either in its favour or against it.

PN942

THE COMMISSIONER: Yes.

PN943

MR JONES: To that extent, we impress upon the Commission to make whatever directions it sees fit to ensure the speedy determination of the matter.

PN944

THE COMMISSIONER: Yes. Thanks, Mr Jones. Very well, in those circumstances given that Mr Wood has said two things, that firstly he wants to present arguments in relation to jurisdiction and that he accepts that - I hope I am not putting words in his mouth - that your characterisation of the matter is the characterisation of the matter for the purposes of the argument. Then there wouldn't be any need for me to hear witness evidence as to the support of your characterisation of the matter.

PN945

So I will excuse from attendance from the next sitting day those persons who are currently summonsed so that they don't need to attend - unless, Mr Jones, is there anybody there that would otherwise be assisting you with some instructions?

PN946

MR JONES: Commissioner, can I advise the - can I advise the Commission or your associate between now and Monday if that be the case. I do not believe it to be the case but I would like to reserve it.

PN947

THE COMMISSIONER: Very well. Thanks very much. In which case we will deal with the matters and presently I don't see the need for witness evidence given that the contest will be whether or not the issue raised and described by the CPSU is an issue that is within the jurisdiction of the Commission.

PN948

MR WOOD: Commissioner, are you minded to make formally those two directions that we suggested or are they - - -

PN949

THE COMMISSIONER: Mr Jones has given an undertaking that by the end of tonight that material will be provided, so - - -

PN950

MR WOOD: Very well.

PN951

THE COMMISSIONER: All right. Thank you for your assistance, see you all next week.

ADJOURNED UNTIL MONDAY, 7 APRIL 2003 [12.45]