C2002/5241, Transcript of Proceedings [2003] AIRCTrans 1620 (30 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 VT2357
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER SIMMONDS

C2002/5241

UNITED FIREFIGHTERS' UNION OF AUSTRALIA

and

COUNTRY FIRE AUTHORITY

Notification pursuant to section 99
of the Act of a dispute re the alleged
failure of the CFA to meet and confer
on terms of an enterprise agreement

MELBOURNE

2.51 PM, WEDNESDAY, 16 APRIL 2003

Continued from 6.11.02

PN28

THE COMMISSIONER: I will take the changes to appearances.

PN29

MR P. ROZEN: I seek leave to appear on behalf of the United Firefighters' Union, with MS M. PINNUCK and MR N. KOLETSIS.

PN30

MS L. HEAP: I seek leave by intervention to appear on behalf of the Australian Services Union.

PN31

MR T. O'LOUGHLIN: I appear on behalf of the APESMA. I seek leave to appear to intervene in regards to the matter.

PN32

MR B. MUELLER: I appear on behalf of the Country Fire Authority. When the matter was last on, leave was granted and therefore, I rely on that leave, but if there is any question about that - - -

PN33

THE COMMISSIONER: You don't need to - in fact you are not even a change to appearance.

PN34

MR MUELLER: Indeed. Perhaps I didn't even need to rise.

PN35

THE COMMISSIONER: Yes, thanks, Mr Mueller. Is there any objection to Mr Rozen's application? No objection. Leave is granted, Mr Rozen. The question of the intervene - objection?

PN36

MR ROZEN: Well I haven't, for my part, heard on what basis the ASU and APESMA seek leave to intervene.

PN37

THE COMMISSIONER: And you have the right to here that, so we will here from - - -

PN38

MR ROZEN: Yes, I have reserved my rights in that respect until I hear on what basis they seek to intervene, sir.

PN39

THE COMMISSIONER: Yes, certainly. Ms Heap.

PN40

MS HEAP: Thank you, Commissioner. I appear at relatively short notice because we have only been made aware of the listing of this matter, before your Honour, this afternoon. The - - -

PN41

THE COMMISSIONER: Sorry, can we just stop for a minute. Someone has got a pager or a telephone on. There is a sign outside the glass doors, to even the corridors outside this Court, saying to turn them off. Who was it? Mr Crampton, you ought to know better, we will hear your apology now.

PN42

MR CRAMPTON: I do apologise, Commissioner, I had my phone switched on silent and unfortunately I didn't realise that when it comes through with a message that it beeps.

PN43

THE COMMISSIONER: And I would ask everybody - well, I think you need to apologise to Ms Heap, it was her you interrupted.

PN44

MR CRAMPTON: I apologise to all concerned, Commissioner.

PN45

THE COMMISSIONER: And I would encourage everyone else to check their telephones to make sure they are turned off. We do not put those signs up lightly. Yes, Ms Heap, you have been rudely interrupted. Not only is it rude to interrupt you it is also rude not to take notice of the signs that we have put up. Please proceed.

PN46

MS HEAP: Thank you, Commissioner. As I was saying, I think, I appear at relatively short notice, the ASU has only just, this afternoon, received indication that this matter has been listed before you, today. I indicate to you that the basis upon our - which we seek to intervene, is in relation to our understanding that the UFU would exert some submissions before you today or in future proceedings in relation to this matter, in relation to alleged members of their union and categories of employees that they seek to cover via an enterprise agreement which the ASU believes are people who are represented and members of the ASU and which the UFU may not have eligibility to cover.

PN47

That is the first issue that we would like to have canvassed in the proceedings at some time, Commissioner. The second being that the nature of the negotiations, to date, have been between the CFA and the ASU for quite some period of time, they are quite at an advanced stage and so we would be indicating that we would wish to bring before you our concerns in relation to the impact of what the UFU is seeking on the course of those negotiations, particularly in light of our concerns about whether or not they have eligibility to represent employees who they assert they are seeking to represent. If the Commission pleases.

PN48

THE COMMISSIONER: Yes, thanks, Ms Heap. Mr O'Loughlin.

PN49

MR O'LOUGHLIN: Commissioner, I would say, probably only be repeating the points that have been made by the ASU in regards to this. Like the ASU, we have members and coverage in the CFA and are currently negotiating with the CFA around a enterprise agreement that has been nominally entitled The Administrative and Support Services Agreement, and similarly, Commissioner, we have concerns about the notion of coverage in relation to our membership area of coverage in the CFA. On that basis, we seek to be parties to these hearings.

PN50

THE COMMISSIONER: Yes, thank you. Mr Rozen, does that?

PN51

MR ROZEN: The UFU opposes the application by the ASU and opposes the application by APESMA. Commissioner, perhaps the best way I can do that, if I can hand up a draft direction which sets out the form of relief that we seek from the Commission in these proceedings. I don't know if that has previously been faxed through.

EXHIBIT #R1 DRAFT DIRECTION

PN52

MR ROZEN: What we seek, Commissioner, and obviously I will expand on the basis upon which that is sought, both in a jurisdictional and an evidentiary sense, but what we seek is a seat at the bargaining table, in summary, Commissioner, and we seek the assistance of the Commission to effect that end. What we don't seek is to exclude anyone from the bargaining table. It is no part of our application that the ASU has no place at the bargaining table, it is no part of our application that APESMA has no place at the bargaining table. It is part of our application that we have a place and that we have been excluded improperly and in breach of the Workplace Relations Act, principally by the CFA.

PN53

We say, Commissioner, that if we were to be granted the relief that we seek or relief in a similar form to that that we seek, it will have no deleterious impact on either the ASU or APESMA. Therefore, assuming, for purposes of the intervention application, that we are entirely successful, neither the ASU nor APESMA is able to bring itself within the well understood test in the High Court's decision of the R v Ludeke, 155CLR and the page number presently escapes me but the principles will be well known to the Commission. They don't bring themselves within the test of sufficient interest as explained by the Court in that decision and followed by the Commission on many occasions since.

PN54

That, in my submission, addresses the first point upon which the ASU sought leave to intervene. The second submission that was made by my learned friend, Ms Heap, was that the status of the negotiations is at quite an advanced stage and there is a concern about the impact on those negotiations if the relief that the UFU seeks is granted. In my submission, Commissioner, that is entirely speculative, there is no evidence, nothing has even been said from the bar table, by either APESMA or the ASU, as to why the negotiations would be in any way delayed. It may be and we will ultimately submit this, Commissioner, that the UFUs involvement in the negotiations will advance the negotiations and will make it more likely that there will be agreement reached between the parties and presented to this Commission for certification.

PN55

So far from having a deleterious effect, having proper representation by the unions that have been chosen by their members to represent them at the bargaining table, is likely to facilitate the making of an agreement and not slow the process down at all. In any event, as I am instructed, the process in one way or another has been dragging on for close to three years, now and in those circumstances one must be a little bit cynical, perhaps, about any suggestions that the UFUs involvement would cause undue delay. So for those reasons, Commissioner, the UFU opposes the applications by the ASU and APESMA. It has not been suggested that any submissions they wish to make are submissions that could not properly be made by the CFA, and in those circumstances, in my submission, it would not be appropriate to grant intervention pursuant to section 32(1) of the Act. If the Commission pleases.

PN56

THE COMMISSIONER: Yes, thank you, Mr Rozen. Mr Mueller, do you have a view?

PN57

MR MUELLER: We don't oppose intervention.

PN58

THE COMMISSIONER: Otherwise, no other view?

PN59

MR MUELLER: No.

PN60

THE COMMISSIONER: Yes. Ms Heap, in reply?

PN61

MS HEAP: Commissioner, I think, in Mr Rozen's submissions he has actually indicated exactly what our interests would be. He has indicated that there is nothing that we have been able to put before you, to date, that has actually been persuasive of the right or need for the ASU or the APESMA to be in these proceedings and that is exactly what we are seeking to achieve by virtue of our intervention in these proceedings, Commissioner, is to put before you the information which we believe that we have and that only we have, in relation to the questions of eligibility in terms of the ASUs rules and how they interrelate with other union's rules, that no other union could put in relation to those areas, here today. Also, to put before you the evidence of our role in the proceedings and what has been occurring to date, in relation to bargaining, again, which no other party in these proceedings can put before you.

PN62

THE COMMISSIONER: Why can't the CFA do that?

PN63

MS HEAP: The CFA, I understand, will be putting its understanding of what it believes to be the situation and the correct interpretation of those matters, Commissioner. We would like the opportunity for the ASU to be able to put to you our particular concerns in relation to those matters. Further, Commissioner, the UFU has indicated that it would - it has got views in relation to - it will need to explore I believe, in this matter, views in relation to its ability to cover the people that it is actually seeking to have representation for at the bargaining table, the ASU has got a particular view about that which we would need to put in relation to the relationship with the ASU in this matter. And, also, I believe Mr Rozen went to the issue of the nature of the negotiations which, again, we would seek to be able to put to you our - - -

PN64

THE COMMISSIONER: But everyone in the world might have a view, what is so special about your view?

PN65

MS HEAP: What is so special about our view, Commissioner, is that we have been, from our point of view, a lead union in the negotiations. The UFU hasn't been involved in those negotiations. The CFA can only put the employer's view about those negotiations and we would seek to have that opportunity to put to you critical information that we believe we have. We note, Commissioner, as well, that we - - -

PN66

THE COMMISSIONER: What is the nature of this critical information? I mean, this is just a bald assertion. I mean, you have had the opportunity to make your case when you made your claim for intervention. Mr Rozen responded to that case. You now seek to widen it. I mean, when you - intervention isn't a walk-up start, you have got to establish an interest and in reply you now seek to establish an interest based on some assertion about critical information. At least give me an idea of what this critical information might be.

PN67

MS HEAP: Commissioner, in relation to the question of critical information, we would seek to put before you information which I addressed originally about the advanced state of the negotiations and the potential impact on those negotiations of a third party being brought into those negotiations at this time.

PN68

THE COMMISSIONER: But the CFA would be able to do that.

PN69

MS HEAP: The CFA will have its view about those matters and we would suggest to you that the interests of the ASU are not symbiotic with the interests of the CFA in relation to this matter and that the ASU should be able to put its view in relation to those matters before you. Commissioner, I also - - -

PN70

THE COMMISSIONER: I just don't understand that submission. Why does that give you an interest in it? It may be that you would find it desirable to be able to express a view but, presumably, the negotiations are at some objective stage.

PN71

MS HEAP: That is correct.

PN72

THE COMMISSIONER: And why wouldn't the CFA be able to tell us about what stage that is without needing the ASUs perspective on it?

PN73

MS HEAP: Because the nature of bargaining, Commissioner, is such that the different parties may have different views about the stage that - - -

PN74

THE COMMISSIONER: So you reckon you are closer to agreement than the CFA?

PN75

MS HEAP: No, I don't believe that I am indicating - - -

PN76

THE COMMISSIONER: But surely that is implicit in what you are trying to tell me, that somehow or another, the CFAs view about the stage at which the agreement is at is more pessimistic than the view that you have.

PN77

MS HEAP: No, that is not what I am saying, Commissioner. I may have - - -

PN78

THE COMMISSIONER: I didn't think it was what you were saying but that is what is implicit in what you are putting to me.

PN79

MS HEAP: What I am intending to say to you, Commissioner, is this, and that is that the ASUs interest, as a union representing employees covered by this agreement in those negotiations, has a particular concern in relation to another union coming along and saying it seeks to represent exactly the same set of employees in the negotiations, such that that is an interest which you should take into account before you allow that other party to be at the negotiating table. It also has - the ASU has a particular concern about the ability of that organisation to genuinely represent the interests of those employees, in terms of its constitutional coverage, and that is a matter which the ASU would seek to press before you, also.

PN80

THE COMMISSIONER: Well, you might seek to press it but I can't see why you - anyhow, I understand what you are saying but - - -

PN81

MS HEAP: If I can actually indicate, Commissioner, along the lines - it would be my understanding, Commissioner, that you will actually, in seeking to deal with the issue that the UFU has put before you, you will be seeking - you will have to hear the UFU in relation to what it believes to be its ability to represent and its eligibility to represent these employees.

PN82

THE COMMISSIONER: As I understand it, that issue has been joined by the CFA and the CFA are denying that they have got that capacity. And what role is left for you?

PN83

MS HEAP: What role is left for the - - -

PN84

THE COMMISSIONER: Apart from jumping on the bandwagon and shouting from the rooftops or something, I suppose.

PN85

MS HEAP: I am not sure that would be the nature and character of the ASUs submissions, Commissioner, but the ASU would seek to put to you its particular information that it has about the fact that it currently represents those people that the UFU seeks to assert an eligibility to cover, and the ASU doesn't believe it has the ability to cover them.

PN86

THE COMMISSIONER: But my presumption, and correct me if I am wrong, is that the CFA doesn't - well, it is not a question of doesn't, but there is correspondence on the file to the effect that the CFA doesn't believe that the UFU has got the right to represent people and why would your organisation have an interest greater than that?

PN87

MS HEAP: Because my organisation does have the eligibility to cover those people and it has been representing them in the negotiations.

PN88

THE COMMISSIONER: Yes, I accept that, I accept that that is possible but I just don't see how that gets you over the hump, in terms of having a sufficient interest in the proceedings.

PN89

MS HEAP: Well, we sit at the bargaining table to represent employees who we do have eligibility to cover and who are concerned that this application - - -

PN90

THE COMMISSIONER: And you have got evidence to bring about that concern, have you?

PN91

MS HEAP: That is correct, Commissioner. I mean, I do emphasise before you, Commissioner, that we - - -

PN92

THE COMMISSIONER: So you will be bringing evidence about the concern of your members about the UFU being present at the bargaining table.

PN93

MS HEAP: Commissioner, I indicate again that the ASU has had short notice of this matter but I should imagine - - -

PN94

THE COMMISSIONER: No, but is it your intention to bring that evidence or are you just saying that you might bring that evidence?

PN95

MS HEAP: Commissioner, in seeking to justify our position, if we were granted intervention, I would presume that we would be required to bring evidence forward to justify our case.

PN96

THE COMMISSIONER: Isn't that got it the wrong way round? I would have thought that you would have had the evidence and that is what you want to bring to the Commission, and that is the basis for your intervention.

PN97

MS HEAP: Two different questions, Commissioner, which I may have answered incorrectly. I thought you were asking a technical question as to whether or not we will bring that evidence forward. We have that information. The question is - the technical question - - -

PN98

THE COMMISSIONER: But what you are saying is, that there are members of yours that are concerned about the role of the UFU in the negotiations.

PN99

MS HEAP: That is correct.

PN100

THE COMMISSIONER: And presumably you have got evidence to bring about that?

PN101

MS HEAP: That is correct.

PN102

THE COMMISSIONER: Yes, okay. Well, I hear what you are saying. Is there anything further you wish to put?

PN103

MS HEAP: No, thank you, Commissioner.

PN104

THE COMMISSIONER: Mr O'Loughlin.

PN105

MR O'LOUGHLIN: Commissioner, I guess, after Ms Heap, the first issue I would just like to raise, and I will only be fairly brief towards this, is that we are unsure as to exactly what the matter was about, except for the - except that we had heard by notice that they would seek - the UFU sought to be a proposed or a party to the relevant agreement, and I guess we are seeking leave to intervene on the basis that we had an interest as to these proceedings, in terms of the impact it may have on the outcome of the negotiations between the parties, given that, I guess, I could say to a certain extent that if the traditional areas of admin, on my involvement in the firefighting industry, whilst I wouldn't want to put any - make any prejudicial comments here, is that the bargaining table, in my experience, has been that, you know, when the administrative areas or you know, the infrastructure has come in, it has been the ASU, the association.

PN106

So I am not saying outright that we are opposing what the UFU may be seeking but we are trying to get an idea, exactly, what the UFU are seeking and invariably what impact that will have on the outcome of our negotiations because we are keen to conclude an agreement with the UFU because there is monumental hurdles to overcome in this agreement, most of all the fact that there are moving off from AWAs on to collective agreement classifications. The second thing is that this, I guess the area of where we might see that there is the potential for conflict of coverage, given that these proceedings will invariably involve or go to questions of areas of potential coverage, and we see that we do have a concern with regards to that, Commissioner.

PN107

THE COMMISSIONER: What, that the UFU are seeking to cover people who are eligibly members of your organisation?

PN108

MR O'LOUGHLIN: That is - - -

PN109

THE COMMISSIONER: That is your suspicion.

PN110

MR O'LOUGHLIN: That is our interest, Commissioner, yes, to - - -

PN111

THE COMMISSIONER: That is your suspicion.

PN112

MR O'LOUGHLIN: That potentially could be, yes.

PN113

THE COMMISSIONER: Yes, well I suppose everything is potential. Yes, okay. Look, I don't propose to grant the intervention, at this stage - the proceedings aren't sufficiently clear to me as to what the final outcome is and I note the comments that Mr O'Loughlin has put, that at least one of the grounds for his intervention is that they are not sure what is happening and that is, I think, a legitimate interest but not legitimate enough to grant intervention at this stage. You, of course, are free to remain in the proceedings, both organisations are free to remain and observe. And I will reserve your right to make application for intervention should the case develop in a way that it becomes apparent, either on submission or to me, generally, that your interest - you have a sufficient interest. So that is, I suppose, a half way house that neither satisfies anyone but it is the course I propose to adopt. Mr Rozen.

PN114

MR ROZEN: If the Commission pleases. Firstly, Commissioner, can I express the gratitude of the UFU for the short notice - - -

PN115

THE COMMISSIONER: Look, I need to say to you, too, that we have got limited time. I think that was made clear to Mr Koletsis when he notified. I have to be out of here by 3.55, actually out of the Court room.

PN116

MR ROZEN: I will try to be as brief as I can.

PN117

THE COMMISSIONER: There is a dentist awaiting me.

PN118

MR ROZEN: Well that is every reason to delay your departure, Commissioner, but that is just my approach to it, that profession.

PN119

THE COMMISSIONER: Unlike lawyers, in my experience, they charge if you don't turn up.

PN120

MR ROZEN: Commissioner, can I just clarify what has been received by the Commission from the UFU? There should be four witness statements that have been faxed through, a statement by Stuart Walker, one by - I might just let the - one by Jennifer Drane, D-r-a-n-e, one by Phil Neander, N-e-a-n-d-e-r and one by David Chugg, C-h-u-g-g.

PN121

THE COMMISSIONER: Yes, we have all of those.

PN122

MR ROZEN: Commissioner, I indicate that of those four two have been signed, that is the statements of Mr Neander and Mr Chugg and with the Commission's leave, I seek to file those in the Commission, now, if I may.

PN123

THE COMMISSIONER: Yes, you can hand them up.

PN124

MR ROZEN: The other two, Mr Walker and Ms Drane, we are instructed that they will be signed in the form in which they have been filed but logistics have prevented that occurring, given that they are both some distance from Melbourne.

PN125

THE COMMISSIONER: We are getting to the stage where people are demanding levels of evidence, in these sorts of proceedings, that I don't. It may be that they are not challenged. If they are challenged, that is when the time comes to sign them and for the people to give evidence. It seems to me that I can accept those statements, signed or unsigned. I appreciate the forensic approach you take to this but it isn't really necessary unless it is challenged from the other side. Is there any challenge, Mr Mueller?

PN126

MR MUELLER: There is and I was about to rise. Those statements have only come into our hands moments before you, Commissioner, came on to the Bench.

PN127

THE COMMISSIONER: Yes, well that is when they came to me, too.

PN128

MR MUELLER: Yes. So, of course, we haven't had an opportunity to digest them. But as I apprehend it and I perhaps should say this, now, rather than delay it, as I apprehend it, my friend is about to embark on a substantive application, namely an application that the Commission make a direction in the terms that are sought. Now this "application", in inverted commas, comes in the context of a dispute notification which was before the Commission in November, last year, and in respect of which conciliation proceedings took place and there are - there was a sequel to those conciliation proceedings and I expect that my friend might have been going to go to that sequel, but it would seem to me that in order to economise on time I should say, immediately, that we resist the idea of the Commission hearing the application at all and do suggest that there is another course available, particularly having regard to the matters that have occurred since November, up until now.

PN129

Now I can elaborate on that, I am - - -

PN130

THE COMMISSIONER: Please do.

PN131

MR MUELLER: Yes, all right. Can I put it in a nutshell. When the outcome of the conciliation was that a process was agreed and the process involved the UFU putting forward to the CFA the basis upon which they contended that the categories of employees over whom them claimed coverage, were covered by their rules and what was contemplated, I think it is fair to say, was a substantiation of their position in respect of the particular categories of employees involved. And, again, to cut to the chase, what occurred was a course of correspondence in which the CFA and in my submission, properly formed the view that the UFU had not taken advantage of the opportunity to substantiate their position and indeed the CFA adopted the realistic position of saying, look, you haven't done what is contemplated but we are still open to persuasion and please give us something of substance upon which we can act in arriving at conclusions about whether you have a basis for participating in negotiations over the proposed agreement.

[3.20pm]

PN132

Now, that - there was an exchange of correspondence leading up to Christmas and the position was reached where the CFA was - had replied to the UFU and said, well, you are not doing what is contemplated but - and we have deferred negotiations on the basis of the conciliated outcome but time has moved on, you haven't done what is contemplated. We have to get moving. We have the interests of all the employees at stake and we intend to proceed to negotiate.

PN133

We didn't close the door and there was some correspondence after - or in the early part of the New Year in which the - it seemed to us that the UFU were retreating from the conciliated outcome and were beginning to say that no longer should be in the process of the UFU putting forward some persuasive material but rather we should simply accept their assertions and indeed I think they started speaking in terms of onus. The onus was on us to persuade them that they did not have the coverage which they asserted.

PN134

The position really remained in that state up until recently at which time the UFU has sought to revive their claim and it seems because, on the face of the material, persons who they have enrolled as members have become agitated by the fact that the UFU haven't been able to achieve the expectations that the UFU have engendered in those persons. Now - and it seems that this application is, as it were, a response to that ground swell and an attempt, a late attempt now, to obtain some imprimatur from the Commission that the UFU should be recognised as a negotiating party.

PN135

Now, could I say this on a factual basis. First, negotiations have taken place between the ASU and APESMA in respect to the employees who are proposed to be covered. Those negotiations are progressing satisfactorily but my instructions are clear that they are a long way from being concluded, that indeed the method that has been adopted in negotiation is that the rather less controversial matters have been dealt with first and we are - - -

PN136

THE COMMISSIONER: Surprise.

PN137

MR MUELLER: - - - yet to move into the more contentious issues so that - while I would not perhaps descend from what was said on behalf of the ASU that negotiations were advanced, I would put it in terms that negotiations were advancing but had not reached an advanced stage in the sense of any - there being a prospect of an early agreement, that just isn't the position so that is one matter which we say the Commission should be cognisant of for the purposes of today.

PN138

And the second matter is that my instructions are again clear that we, that is the CFA, are willing to entertain a submission from the UFU which outlines in some coherent way the basis upon which they assert they have coverage over particular categories of employees. We say that any fair reading of the correspondence so far would disclose that they have not availed themselves of that opportunity but, be that as it may, we are still open to receive it and we are willing to respond to it promptly.

PN139

And that was a process which we agreed to last time. We have prepared, despite the elapse of time, to a geared - to, as it were, revive it again and if that was a course which the UFU were prepared to pursue, then that would relieve the Commission of the time it would need to devote to arguments about jurisdiction which the Commission is going to have to hear today if the matter proceeds.

PN140

THE COMMISSIONER: It will be very brief arguments.

PN141

MR MUELLER: That is right. That is right and indeed I would saying that - - -

PN142

THE COMMISSIONER: Well, we only ever hear one side thus wouldn't be able to - because on a couple of grounds I would have to give you an adjournment.

PN143

MR MUELLER: Yes, exactly. Well, we would say we were in - we were certainly in that position so I just wanted to indicate to you that that is the context and it would seem to us to be appropriate to factor that in in a procedural way now.

PN144

THE COMMISSIONER: Yes. No, I understand, Mr Mueller, thank you.

PN145

MR MUELLER: I have - I should say I jumped over some things that I might have otherwise said but - - -

PN146

THE COMMISSIONER: No, no, but I invited you to - - -

PN147

MR MUELLER: Yes.

PN148

THE COMMISSIONER: - - - address me on that point and Mr Rozen, it does seem to me that - I don't know that I have got the totality of the

PN149

correspondence but I have, in dribs and drabs since the matter was last before me, received correspondence and it would appear that if the agreement was as Mr Mueller describes it and that is certainly my recollection, then the UFU has simply not complied with the sort of requirements that were agreed to.

PN150

MR ROZEN: Can I address you on that, sir?

PN151

THE COMMISSIONER: Yes, certainly.

PN152

MR ROZEN: Commissioner, there is a difficulty, particularly in circumstances where there is limited time in sort of raking over who was right and who was wrong but I think that the issue has been raised - - -

PN153

THE COMMISSIONER: No, could you leave the door open please. Sorry.

PN154

MR ROZEN: Increase in the decibel. I don't get an apology, do I, from - - -

PN155

THE COMMISSIONER: My associate is going out to deal with whoever it is. There you are.

PN156

MR ROZEN: Successfully it would seem, Commissioner. Commissioner, if I can just - I don't think you do have the totality of the correspondence.

PN157

THE COMMISSIONER: Yes. I just make the point, Mr Rozen, that I am very keen that where it is open proceedings, the door is open. Where it is closed, it is closed.

PN158

MR ROZEN: I understand, Commissioner. I don't think you do have the totality of the correspondence. Can I just indicate this, Commissioner, that when the parties left the conciliation on 6 November 2002, the UFU had not been informed by the CFA of precisely which classifications it was intended to cover in the agreement that is the subject of this dispute and in light of that, so that the UFU could meet what it had agreed it would do and we take no issue, Commissioner, with the description of what it was agreed would occur, the UFU wrote to the CFA on 17 December 2002 and I don't think you have a copy of this letter, Commissioner, but if I can just indicate it said - it was to Mr Holyman and it said:

PN159

It would greatly assist us to clarify our position if you could forward to us the position descriptions for the classifications we identified.

PN160

That is certain classifications had been identified really as educated guesses about who would covered by the agreement and we asked them for these position descriptions so that we could then, in light of those position descriptions, put a submission as to how they fell within our rules. Now, Commissioner, you would have thought that was the simplest request in the world to comply with and the most reasonable one to have made and the response was, no, you are not getting any position descriptions.

PN161

THE COMMISSIONER: Yes, I do have that correspondence.

PN162

MR ROZEN: Yes. They said, no, we are not going to give them to you nor have they been prepared to identify the classifications that the proposed agreement is going to cover. It was in those circumstances, sir, that that process just - - -

PN163

THE COMMISSIONER: I am sorry, but within the same letter - - -

PN164

MR ROZEN: Yes.

PN165

THE COMMISSIONER: - - - you have got this shift of onus argument from the UFU:

PN166

It concerns us that the CFA seeks to change the onus of justifying its position from itself, as the party ...(reads)... where the UFU is required to demonstrate membership and coverage.

PN167

Now, the outcome of the discussions, as I apprehend them, was that it was the onus on the - the CFA was saying, you show us where you have got membership and coverage - - -

PN168

MR ROZEN: Yes.

PN169

THE COMMISSIONER: - - - and we will let you in.

PN170

MR ROZEN: Yes. Well - - -

PN171

THE COMMISSIONER: Now, there is no call for that comment at all, I mean it is just a bit of a smart footwork.

PN172

MR ROZEN: Perhaps make the concession, Commissioner, that onus, that legal concept in those circumstances, might not have been the best choice of words perhaps. We don't pursue that.

PN173

THE COMMISSIONER: They went on - - -

PN174

MR ROZEN: Yes.

PN175

THE COMMISSIONER: - - - to say:

PN176

We believe it is up to the CFA to show, as you are the party objecting, why we don't have eligibility.

PN177

MR ROZEN: Yes, Commissioner, but that is the - - -

PN178

THE COMMISSIONER: Well, no, but that wasn't the context in which the conciliation resolved itself.

PN179

MR ROZEN: I understand that.

PN180

THE COMMISSIONER: The conciliation resolved itself in an entirely different way.

PN181

MR ROZEN: I understand that, Commissioner, but if we go back to the - - -

PN182

THE COMMISSIONER: If there any onus, it was on the UFU to establish that it had members and coverage.

PN183

MR ROZEN: We accept that.

PN184

THE COMMISSIONER: Yes.

PN185

MR ROZEN: We accept that, Commissioner. We accept that and as we stand here today - - -

PN186

THE COMMISSIONER: Now, I appreciate the point you are making, that we are not sure - - -

PN187

MR ROZEN: Tell us who is going to be covered.

PN188

THE COMMISSIONER: Who is going to be covered by this award and we would like to see the position description.

PN189

MR ROZEN: And tell us what their job - what their positions are, information only you have.

PN190

THE COMMISSIONER: And specifically identified ones.

PN191

MR ROZEN: Yes. And we will then - we know our rules and we will then respond to your request and more particularly do what we said we would agree to do. Now, they didn't provide those position descriptions. That process just came to a halt in those circumstances. There was one final letter in early January and that was the end of it.

PN192

PN193

Now, Commissioner, what has happened since is of particular significance and that is that the UFU gained more information from its members about the process of negotiation, in particular, came into possession of a draft agreement, draft number 11 and received requests from members and those requests have been coming in thick and fast and we came place all of those written requests before the Commission for the UFU to represent its members in the negotiations and those members were expressing, and continue to express, great concern about the stance the CFA have taken in excluding the UFU.

PN194

So it was in those circumstances, Commissioner, that the UFU wrote to the CFA in a letter dated 8 April 2003 which was attached to our most recent correspondence with the Commission setting out in detail with reference to the relevant rules in the UFU the basis upon which the UFU asserts that it has eligibility to cover employees that it understands will be the subject of the agreement. Now, Commissioner, this all occurs in the context, and it is a very important context, that to be a party to this agreement, the UFU need only, under the Workplace Relations Act, have one employee who is eligible to be a member.

PN195

So we are talking about classifications of employees and on my instructions we are talking about several hundred employees but at the end of the day if the UFU has one of those people that fall within its eligibility rules then that is sufficient.

PN196

THE COMMISSIONER: Sufficient to be a party to the agreement?

PN197

MR ROZEN: Yes.

PN198

THE COMMISSIONER: But not necessarily a party to the negotiations?

PN199

MR ROZEN: Well, that is an additional matter.

PN200

THE COMMISSIONER: Yes.

PN201

MR ROZEN: But ultimately, sir, the time at which the legal question arises, that is the legal question of whether the UFU can be a party, is at the time of certification. I will ultimately be submitting, sir, in relation to these proceedings, that you do not have to form a concluded view about the eligibility issue. There will be sufficient evidence before you, upon which you could do so, but it is no part of our application. There is no part of our application that requires you to do so.

PN202

Now, we wrote that letter to them. That is a detailed submission. Short of attaching to it witness statements, in my submission, there is nothing more the UFU could do to meet its agreed position, to meet the agreed position as at 6 November 2002. And what comes back? A letter dated 10 April 2003 from Mr Holyman saying, you have not provided detailed evidence to us, we are not satisfied with what you have provided. Commissioner, this is a simple question at the end of the day. There are only two issues.

PN203

One is what do the rule say? And the second is, what do the people do? Now, the CFA knows what its people do. And the CFA knows what our rules say. And it is a question of matching one to the other. The CFA, with respect, has been playing games about this issue for at least six months and it continues to play games about issue by saying to us, just come with the evidence and we will and I quote:

PN204

... acknowledge the UFU's capacity to participate in the negotiations.

PN205

They have never said they will invite us to the bargaining table, Commissioner. And maybe that is just a lawyer's reading of words but it is of some interest that they haven't said that. They have told us that if we can just come to them with the evidence, it is Kafkaesque process, Commissioner, if I can use a overused literary allusion. We don't know what the evidence is that will satisfy them and they just keep saying to us, well, you have given us that but that is not the evidence that we seek.

PN206

Now, that process could go on for years, Commissioner, and that is why we are here because at the end of the day there are important issues at stake and the issues are the terms and conditions of employment of several hundred people many of whom have expressed a very clear desire to the CFA that they want their union to negotiate on their behalf. That is all they want. They want their union to have a seat at the bargaining table and the CFA, for whatever reason and one can speculate about what the reasons might be but it wouldn't be profitable, doesn't want the UFU there representing its members and that is what we ask and so we come to some extent in desperation, Commissioner, to this Commission seeking a direction that we sit at the bargaining table.

PN207

Now, that is our position in terms of compliance with the agreement at 6 November. If I can just add this: We have now provided four witness statements which are being provided to my learned friends. They detail three classifications that we understand will be covered by the agreement. In each of them the deponent explains what they do and explains in no uncertain terms they want the UFU to be representing them in the negotiations. And still we are told we haven't provided the evidence. Just provide us with the evidence and this will all be ended sweetly, the CFA says.

PN208

Well, Commissioner, it is a process that could go on, as I say, endlessly. Now, I do, having said all that, acknowledge that given that time constraints that we are under and given that my learned friend wishes to take a jurisdictional point and obviously the Commission has to hear the parties on that and that is going to take some time, that we are not going to be able to proceed with the hearing in the time that is available today. Can I, in relation to that, hand up to the Commission a decision of Commissioner Smith in the matter of CPSU v Sensis, S-E-N-S-I-S Pty Limited, print PR 927827.

PN209

THE COMMISSIONER: Yes, thank you.

PN210

MR ROZEN: This is a decision, sir, concerning a preliminary issue about whether there is, under the Workplace Relations Act, a duty to bargain in good faith. It was a case in which the CPSU were seeking a direction in terms similar to the one that we seek from the Commission here and a jurisdictional point was taken on behalf of the employer that the Commission did not have jurisdiction to give such a direction. This decision is the first decision in a series of two in which Commissioner Smith held that there is a duty to bargain in good faith under the Act and in those circumstances the Commission does have jurisdiction to make a direction that a party bargain in good faith and if I can take the Commission to page 5 of 6 at paragraph 24 please. The learned Commissioner said:

PN211

From the review of the decisions together with the legislative framework now in place, I find that it is a duty upon those seeking to negotiate an agreement under part VIB of the Act to do so in good faith. Such a finding -

PN212

this is at paragraph 25:

PN213

... does not of course end of the matter before me because there still needs to be an identification of the matter arising under that obligation -

PN214

and then it - the Commissioner goes on and says that he dealt with this matter as a preliminary question. At paragraph 26:

PN215

Having found such a duty I must now consider the future conduct of the matter. Sensis agreed to defer further negotiations for a period of two weeks. It was reluctant to do so but nonetheless afforded me the opportunity of reflecting upon its submissions. In light of the submissions and the course which Sensis foreshadowed it is appropriate that I now direct, pursuant to section 111(t) -

PN216

I think that should be 111(1)(t) -

PN217

... that no further bargaining take place under division VIB of the Act until the matter is resolved or until further order of the Commission.

PN218

My submission, Commissioner - - -

PN219

THE COMMISSIONER: But do we have a bargaining notice in this case?

PN220

MR ROZEN: We do. We do. There are in fact five bargaining notices that are relevant to the present proceeding and, Commissioner, you will have seen from this decision that that was an important matter to Commissioner Smith, that is that just as there, here the UFU and the CFA are negotiating parties as that term is used in the Workplace Relations Act. We are not being treated as one but we are one. And it was in these circumstances, Commissioner, that Commissioner Smith sought to preserve the status quo pending the resolution of the matter before him and he did so by directing that there be no bargaining.

PN221

Now, in my submission, whether the negotiations are advanced, as Ms Heap described them, or advancing as Mr Mueller described them, and whatever the difference might be, my client is concerned that any relief that it might ultimately obtain from the Commission should not be rendered anility by events that occur between now and whatever time the Commission is ultimately able to hear this matter and so it is in those circumstances that the approach that was taken by Commissioner Smith is one that we would urge upon the Commission here.

PN222

Now, of course I say that without having any idea of the Commissioner's availability. I understand the Commission, as presently constituted, is to be going on leave shortly and I don't know what sort of time we are talking about. We would like this matter dealt with as soon as is possible bearing in mind - - -

PN223

THE COMMISSIONER: Well, you have got some problems because the UFU has pinched the days when I come back too so - - -

PN224

MR ROZEN: I can't be heard to complain about that, Commissioner.

PN225

THE COMMISSIONER: No, you cannot.

PN226

MR ROZEN: Perhaps I can just summarise. It may be that this can be resolved by some form of undertaking from my learned friend. I haven't sought it and he is obviously in a position to obtain instructions on that. If we could know that our position is not going to be prejudiced pending the further contact of a hearing and resolution of this matter then we would be in no position to oppose the matter, the application for an adjournment which my learned friend has, if not made, then certainly foreshadowed so that is our concern, to preserve the position.

PN227

Now, there are a couple of ways that can be done. One is that they invite us to the bargaining table in the interim which we would quite satisfied with pending the outcome. Another is that there be in effect a stay on the negotiations pending the final outcome.

PN228

THE COMMISSIONER: There is - got to be the possibility, Mr Rozen, that having considered the sort of information that is now before the Commission they say, that is the information we have been seeking since last November and we will act in accordance with our undertaking even though you didn't meet your time scale.

PN229

MR ROZEN: It may be. We, of course, invite them - - -

PN230

THE COMMISSIONER: That is a possibility.

PN231

MR ROZEN: We invite them to do that. They have had the material now for a couple of hours.

PN232

THE COMMISSIONER: Well, they have been sitting here for those couple of hours and they have not had - to be fair.

PN233

MR ROZEN: Commissioner, they have got several people that can read I think. They are not long statements but, yes, it may be that - and that would entirely meet our concerns, Commissioner, and - - -

PN234

THE COMMISSIONER: They might need to talk to each other about it too.

PN235

MR ROZEN: I understand that, Commissioner.

PN236

THE COMMISSIONER: I think that is only fair.

PN237

MR ROZEN: And we are happy to - - -

PN238

THE COMMISSIONER: But, look, it is a third possibility. Mr Mueller, is there any room for agreement about this?

PN239

MR MUELLER: No. In - well, in - - -

PN240

THE COMMISSIONER: In terms of what has just been put?

PN241

MR MUELLER: A couple of thoughts - - -

PN242

THE COMMISSIONER: About the advancing of - we have still got a few minutes, but about the advancing of the negotiations. When are they next meeting?

PN243

MR MUELLER: They were - further negotiations were proposed to take place from 2 o'clock today but they haven't taken place cause the relevant people are here but there would have been, as I think suggested, a whole series of further meetings would have - - -

PN244

THE COMMISSIONER: Yes. So have got a schedule for next date? I mean what are we going to miss by - I need to look at my diary so - - -

PN245

MR MUELLER: I haven't sought any instructions about this but it occurred to me and I will - it occurred to me that one thing that we could do would be to keep them advised about the fact of negotiations, when they were occurring. You see I am influenced by the fact that my instructions are clear that there isn't an imminent bargain about to be made.

PN246

THE COMMISSIONER: Yes. You see I am not available in any real sense before 20 May to deal a matter such as this.

PN247

MR MUELLER: Yes.

PN248

THE COMMISSIONER: That is the reality of my - and only two weeks of that are leave I hasten to say and some of that leave includes Easter so - - -

PN249

MR MUELLER: I noted also that my friend, as it were from the bar table, invited us to treat the latest correspondence plus the statements as the material that they advanced for substantiating - - -

PN250

THE COMMISSIONER: Yes, that is - - -

PN251

MR MUELLER: - - - their eligibility. Well, I guess, in the end, that is a matter for them to say that that is the position. If it is the position then - - -

PN252

THE COMMISSIONER: Well, it is certainly, as I understand it, material that is advanced in support of the position before me so - - -

PN253

MR MUELLER: Yes.

PN254

THE COMMISSIONER: And the invitation is there for you to treat it as such.

PN255

MR MUELLER: Yes.

PN256

THE COMMISSIONER: And - - -

PN257

MR MUELLER: Would you just pardon me for a moment?

PN258

THE COMMISSIONER: Yes, certainly.

PN259

MR ROZEN: I confirm that, Commissioner, least there are any doubt.

PN260

MR MUELLER: If the Commission please, I do have instructions that we, treating the material that has been furnished to us as the basis upon which the UFU assert they have coverage over certain employees, we would be prepared to respond to that within 14 days and to undertake, during that period, not to undertake any substantial negotiations over the agreement proposed between the CFA and the ASU and APESMA.

PN261

THE COMMISSIONER: And is there capacity for you to have discussion - I mean it is not just a question of response but have discussions about it. It seems to me that we had a conciliation and then we have been throwing letters back at each other. I notice that there has been some discussion involving Mr Koletsis and Mr Watson that is referred to in the correspondence.

PN262

MR MUELLER: Yes.

PN263

THE COMMISSIONER: But I was really thinking that there might also need to be some discussion between those instructing you and those instructing Mr Rozen at some point - - -

PN264

MR MUELLER: Well, perhaps we - - -

PN265

THE COMMISSIONER: - - - before you actually make a final decision.

PN266

MR MUELLER: Yes. It is a bit hard to say without sitting down with the material. Yes, I am instructed that we - before we made a final decision on it, we would be prepared to meet in order to - - -

PN267

THE COMMISSIONER: I am really thinking that you meet before you come back before me.

PN268

MR MUELLER: Yes.

PN269

THE COMMISSIONER: In an attempt to resolve your outstanding issues because I promise you that one of the first attempts I will be doing is to attempt to continue that conciliation I did on the last occasion.

PN270

MR MUELLER: Yes. It may be our position - - -

PN271

THE COMMISSIONER: I need to say, subject to any application from the putative interveners.

PN272

MR MUELLER: Of course. And in that respect it may be our position that, if the conciliation process is exhausted, then that is - then the union would have to look to other avenues but that - it is premature to anticipate what might be the position.

PN273

THE COMMISSIONER: No, no, I understand and Mr Rozen, does that go any way towards satisfying you or those instructing you, I should say?

PN274

MR ROZEN: Well, no, is the simplest way of responding. I could have said, kind of, but we would obviously welcome that and we would expect it. I don't know why it takes them 14 days. They took one and half days to respond to that last letter but, Commissioner, the issue for us is that we want to preserve our position pending the Commission's determination in our application that is before it and there is nothing my learned friend has put that really meets our concerns in that regard.

PN275

THE COMMISSIONER: Well, you have got the 14 days. You have got the consideration. I would have thought that if the matter - if they are proposing to proceed in any substantive way at the end of those 14 days you can make application to the Commission and I am sure that the panel head will make sure the matter is assigned to a member to deal with with urgency.

PN276

MR ROZEN: Well, I mean - - -

PN277

THE COMMISSIONER: I mean this matter has come on within two days of notification. Certainly I am cognisant of the urgency. I am happy to pass that advice on to the panel head. It really is just a question of timetabling as I see it. I mean I understand your position. It sounds like not much is going to happen for another two weeks anyhow. They have guaranteed nothing will happen for two weeks. It sounds like it is quite possible that little will happen for some time after that if Mr Mueller's characterisation of the way things are proceeding turns out to be correct. I am not quite sure what the status of your other proposition is, Mr Mueller, about advising the UFU of what negotiations were occurring. Is that - - -

PN278

MR ROZEN: I was about to raise that. I mean that is sort of central to this working is that we know that, that they alert us.

PN279

THE COMMISSIONER: No, no, but there - - -

PN280

MR ROZEN: Yes. I didn't understand.

PN281

THE COMMISSIONER: - - - was something he said without instruction and - - -

PN282

MR MUELLER: Yes. I think the second thing that I said really superseded that but I would have thought that if, as I said, if my instructions that there would be no substantial negotiations in the next 14 days. We will telling the union something towards the end of that 14 days and within that I am sure that we will be telling them that if the position is we don't think they are entitled to be at the negotiation table then we will also be telling them that we are resuming negotiations with the other two unions and that would put them in a position to make the - - -

PN283

THE COMMISSIONER: Yes.

PN284

MR MUELLER: Any decision they are advised to make.

PN285

THE COMMISSIONER: And clearly if the decision was the other way around we wouldn't be here anyhow.

PN286

MR ROZEN: Excuse us, Commissioner.

PN287

THE COMMISSIONER: Not for long.

PN288

MR ROZEN: Commissioner, I think we can resolve this interim issue on this basis, that is that the CFA conduct no negotiations in respect of the agreement in the next 14 days, no substantial negotiations is an unclear and vague undertaking. We say there should be no negotiations within that 14 day period. We say that if they tell us that they are not satisfied with the material in the sense that they continue to take the position they are taking and won't invite us to the bargaining table that they tell us when they are intending next to meet after that 14 day period with the ASU and the APESMA and then we can make our own assessment of the position and do what we think is appropriate and we also say there should be a meeting between the parties prior - within the 14 day period prior to their formal response if you like to the letter.

PN289

And on that basis and subject to the Commission's availability and programming and so on, the matter could be adjourned from today by consent.

PN290

THE COMMISSIONER: Mr Mueller.

PN291

MR MUELLER: Yes, I had only used the word "substantial" because I just conceive there might have been some issue that we had undertaken to respond to the unions that are participating and we would think that we would have to honour that and otherwise that, you know, there might - we didn't want to, as it were, freeze things so that we couldn't schedule meetings after the 14 days but if it - - -

PN292

THE COMMISSIONER: Do you mind if I just stop you there? Is that - you have now got a definition of "substantial"?

PN293

MR MUELLER: Yes.

PN294

THE COMMISSIONER: Yes, okay. That seems to be acceptable.

PN295

MR MUELLER: In other respects that would - I think that reflects what we were proposing.

PN296

THE COMMISSIONER: Very good. Well, on that basis, it would appear that we have got an adjournment by consent almost spot on time, a bit late. The proceedings will adjourn until 10.15 on 20 May next but with liberty to apply for re-listing earlier should it be necessary.

PN297

MR ROZEN: Can I just very quickly raise the issue of perhaps a date by which my learned friends are to respond by way of evidence if they intend to.

PN298

THE COMMISSIONER: What I can do in regard to that is suggest the parties agree to some arrangement.

PN299

MR ROZEN: I am sure we can come to some - - -

PN300

THE COMMISSIONER: And in the event that they can't agree, they should contact my associate some time in the week commencing 28 April and I will list the matter for directions at 9 am on Monday 5 May but if there are - I would prefer you to reach consent about that.

PN301

MR ROZEN: Yes.

PN302

THE COMMISSIONER: The proceedings are adjourned.

ADJOURNED ACCORDINGLY [3.55pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #R1 DRAFT DIRECTION PN52