BP2003/3659, Transcript of Proceedings [2003] AIRCTrans 1828 (16 May 2003)

AUSCRIPT PTY LTD
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TRANSCRIPT OF PROCEEDINGS

O/N VT2456
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER HINGLEY

BP2003/3659

APPLICATION TO SUSPEND OR TERMINATE
BARGAINING PERIOD

Application under section 170MW of
the Act by Kempe International for
orders to suspend or terminate a
bargaining period between AMWU and
Kempe International in BP2003/2427

MELBOURNE

11 AM, THURSDAY, 1 MAY 2003

PN1

MR A. DALTON: I am from the Australian Industry Group, and with me today is MR K. BEATTY from Kempe.

PN2

THE COMMISSIONER: Mr Dalton, I apologise to you for the inordinate delay.

PN3

MR M. ADDISON: I appear on behalf of the Australian Manufacturing Workers Union. Commissioner, while I am on my feet, I also apologise to Mr Dalton for the delay, but that will become clear as to why there was a delay. Commissioner, I would seek that this matter be adjourned. I would seek to put an application for adjournment before the Commission, on the following basis. Commissioner, it is only by luck that I was in the building on another matter this morning. On a break from that matter I received a telephone message from Mr Robb, informing me that he had been informed that a hearing was to proceed this morning with regard to this matter.

PN4

I went and checked the board and then came down here. That is when I found out where the matter was to proceed, and I have spoken to Mr Dalton. I have informed him that I have no instructions with regard to this matter. Nil. I haven't even had the chance to ring Mr Robb back. I understand that your Associate has spoken to Mr Robb, but I haven't at this point in time. I have simply got his message and come down here. I am informed that application was made some time ago by AIG with regard to the matter. I am informed that a letter was received by AIG from one of our officials, Mr Diehm.

PN5

Mr Diehm, in that letter, refutes the propositions outlined in the applicant's application, and refutes it in the terms that the application says there has not been genuine negotiations between the parties. Mr Diehm's letter quite clearly lays out from his point of view that there have been discussions, and Mr Diehm says the AMWU organisers have on several occasions attempted to arrange meetings with, and sit down talks with the company. The shop stewards on the job have held meetings with the company in relation to negotiating a new Kempe industrial agreement.

PN6

So that is the extent of my knowledge of this matter. I am not in a position, Commissioner, to deal with the application this morning. I would need to get further instructions from Mr Robb, and also from Mr Diehm, and also from the shop stewards, who Mr Diehm says have had meetings with the company, and I will probably need to call evidence from all of those parties. Commissioner, I would seek an adjournment - I understand industrial action is occurring. I understand there are four notices with regard to industrial action.

PN7

However, I would seek an adjournment until tomorrow with regard to this matter. Tomorrow morning. Whilst it may be prejudicial to some extent for the company, we would say it is not an inordinate delay, and we say that the AMWU is entitled to present an argument.

PN8

THE COMMISSIONER: Well, that is true, and the AMWU had that opportunity and they have had ample notice of this listing. Why does Mr Robb and Mr Diehm say they are not here this morning?

PN9

MR ADDISON: As I say, Commissioner, all I have had is a telephone message from Mr Robb. His message said that he had spoken to - I think it was the AWU organiser. He had found out that there was a hearing. He said in his message he had not received any notification from the Commission with regard to the matter proceeding this morning, and that caused me to whiz around the building trying to find the listing.

PN10

THE COMMISSIONER: Yes.

PN11

MR ADDISON: If the Commission pleases.

PN12

THE COMMISSIONER: Mr Dalton?

PN13

MR DALTON: Thank you, Commissioner. In terms of this matter, the factual issue is that the union was aware of the application and we have received a response to that application. The Commission, I understand from your Associate, has got a faxed confirmation that they received the notification. The Act, under 170MW, says at section 1:

PN14

Subject to subsection 8 the Commission may by order suspend or terminate the bargaining period ...(reads)... set out in 227 exist or existed.

PN15

The union has had an opportunity to be heard. The company is subject to industrial action at this particular point in time. If the union is not ready to go, then so be it, on their heads, as far as I am concerned. If they are unhappy with your decision, if you do allow this matter to proceed, well, they can take action to redress that. But this company is subject to it. It is ready to go. It has complied with all the requirements of the Commission to be here and be ready to go, so in terms of that I see no reason, no reason, for it not to proceed, and I also think it would set a very bad precedent for the union to be allowed to put matters off that need to be dealt with in a more expeditious way. If the Commission pleases.

PN16

THE COMMISSIONER: Yes. Well, the difficulty we have got is that Mr Addison says that he has no instruction and he can't mount a case. That doesn't stop us, I don't think, from you proceeding with your case at this stage, and I will hear that. It may be that we don't conclude it this morning, but we will see.

PN17

MR DALTON: Thank you, Commissioner. This is an application to suspend or terminate the bargaining period that has been established by the AMWU with regard to seeking a new enterprise agreement with the company, the company being Kempe Installation and Maintenance Services. The company received a notice of initiation of a bargaining period, which is dated 20 March 2003, and attached to that notice is a log of claims, and I have a copy of that bargaining period notice.

EXHIBIT #K1 NOTICE OF INITIATION OF BARGAINING PERIOD DATED 20/3/2003

PN18

MR DALTON: It is a fairly standard bargaining period notice, Commissioner. There is nothing spectacular about it. It is just there to show that the union has complied with that provision of the Act, so I have no real problem with that. The bargaining period is later identified as being bargaining period number 2003/2427. The application in terms of this company is made under section 170MW(8) of the Workplace Relations Act 1996, and specifically it is the company's position in this matter that the union has not satisfied the requirements of section 170MP(1)(a), which requires that negotiation must precede industrial action or lockout.

PN19

Now this provision states that, and I am quoting:

PN20

Engaging in industrial action by a person who is a member of an organisation of employees ...(reads)... genuinely tried to reach agreement with the employer.

PN21

And section 170MW(8) concerns the power of the Commission to suspend or terminate a bargaining period, and that says:

PN22

Subject to subsection 8, the Commission may by order suspend or terminate the bargaining ...(reads)... before organising or taking the industrial action.

PN23

Now, if the Commission is satisfied that this is the case, the company would be seeking that the Commission exercise its powers under section 170MW(8), which states that:

PN24

The Commission may not make an order under subsection 1 in the circumstances set out ...(reads)... by the negotiating party or the Minister.

PN25

Now, in terms of that, I won't go through the rest of the powers that the Commission has. I think that is fairly straightforward. Now, for your background to this matter, the company's operations in this part of the business is that it is a maintenance and installation services contractor, and operates primarily on site at Alcoa per Point Henry. It does operate on other sites as well, but that is its prime operation, and there are about 20 employees involved in that operation. Now, with regard to the current industrial action, the company has received four notices of intended industrial action, and I have a copy of those notices for the Commissioner.

EXHIBIT #K2 FOUR NOTICES OF INTENDED INDUSTRIAL ACTION

PN26

MR DALTON: Now, in terms of these, you will see the notices, Commissioner. The first one is dated 25 March, and it advises of a three hour stoppage for Tuesday, 1 April. Now that action has obviously come and gone. The second notice was received by the company on 16 April and it is dated 15 April. The notice advises the four points of action to commence at 7 am on Saturday, 19 April. There is an issue here about whether it is protected action or not, given that the three working day notice under section 170MO(2)(b) we say has not been satisfied, as Friday, 18 April was Good Friday and a public holiday, as such not a working day as defined under section 170LF of the Act.

PN27

But I am not asking the Commission to deal with that matter, because that is a different matter and I understand, but I just point out that there is a problem with that notice simply on that basis.

PN28

THE COMMISSIONER: I note that.

PN29

MR DALTON: But in terms of the notice, at point (a) it says - and again, the notice refers to bargaining period 2003/2427:

PN30

The intended action commenced 7 am, Saturday, 19 April 2003. Point 1. Total ban on employees ...(reads)... from attending all other sites to perform shutdown work.

PN31

Now, this crew doesn't really go to Ford, Toyota or Holden sites, and that is not a big issue, but it does go to other sites, and that is a big issue to the company. The third notice is again dated 16 April, and was received by the company on that day, and this notice talks about industrial action commencing 6 am Tuesday, 29 April:

PN32

There will be rolling stoppages and this will last for a period of three months or until agreement is reached with the company.

PN33

And the fourth notice is dated 17 April and the faxed confirmation says it was received by the company on 17 April, and this action says that:

PN34

From Tuesday, 29 April 2003. Nature of industrial action, as follows. Ban of all work at the Alcoa ...(reads)... will last for a period of three months.

PN35

And this is a very serious notice from the company's point of view, Commissioner, because this will directly affect very much the work that these employees are doing. Now, each of the notices is signed by Mr Steve Dargavel, Secretary of the Metal Division and Assistant State Secretary of the AMWU, and each of the notices is specific to the bargaining period 2003/2427. Now, on 17 April the company responded to the notices on 15 and 16 April, advising the union that we believed the notices to be invalid on two grounds. I have a copy of the company's letter, Commissioner.

EXHIBIT #K3 LETTER FROM KEMPE TO UNION DATED 17/4/2003

PN36

MR DALTON: Now, you will see from that letter the company says:

PN37

We acknowledge receipt of your notices. We believe that they are invalid on two grounds ...(reads)... to have the matter heard by the Australian Industrial Relations Commission.

PN38

So in terms of that, Commissioner, we say that we gave the union very much an opportunity to address this issue, but nothing was heard back from the union. So in terms of that, we would say that that notice makes it very clear that the company gave the union fair warning that we were intending to take this matter to the Commission if it proceeded. The company did lodge an application with the Commission on 23 April 2003. A copy was sent to the union and an organiser of the Metals Division responded on 24 April 2003, advising that the union refutes the company's claim, and stating that on several occasions the union had attempted to arrange a meeting and sit-down talks with the company.

PN39

Also, the shop stewards have held meetings with the company in relation to negotiating a new Kempe International agreement. I have a copy of that letter for the Commission as well.

EXHIBIT #K4 COPY LETTER OF 24/4/2003

PN40

MR DALTON: Now, with regard to that letter, I would say that the bargaining period industrial action are not with Kempe International, but with Kempe Installation and Maintenance Services. And secondly, in terms of a chronology of activity between the union and the company regarding a new enterprise agreement, there really isn't much to know, and I will just run through a bit of a chronology.

PN41

Around January or possibly early February of this year, during discussions of a general nature between Mr Ken Beatty, the Divisional Manager for Kempe Installation and Maintenance Services, and Mr Gary Robb, an AMWU organiser in the Geelong area, Mr Beatty raised the issue of the next enterprise agreement and stated to the effect that it was the company's position that while it would look at what was happening with other companies in their EBA outcomes, it would negotiate a company-specific agreement.

PN42

Now, on 11 March the company received a letter dated 7 March inviting them to attend negotiations over your next agreement at the AMWU offices in Melbourne, and I have a copy of that letter.

EXHIBIT #K5 LETTER TO COMPANY DATED 07/03/2002 TO ATTEND NEGOTIATIONS OVER NEXT AGREEMENT AT AMWU OFFICES IN MELBOURNE

PN43

MR DALTON: Now, that is a fairly straightforward letter just inviting that - it is addressed to Kempe Installation. It is not personally addressed, it just says:

PN44

Dear Sir/Madam, I invite you to attend negotiations over the next agreement with the AMWU being held on 3rd Floor, 440 Elizabeth Street Melbourne, and can confirm your attendance. I look forward to your attendance at the meeting along with all of the other employers who have agreed to come.

PN45

In terms of this, the Australian Industry Group, of which this company is a member, was well aware that the union was pursuing a strategy for Campaign 2003 aimed at replacing genuine enterprise bargaining with collective industry-wide pattern bargaining, and part of this campaign was to invite members of companies to attend a collective employer meeting with the union and seek negotiations on a collective agreement.

PN46

Now, the AI Group advised its members that it had written to the AMWU advising of its views on such meetings and that we had advised our members not to attend given the purpose of these meetings. Now, it should also be noted at this point that this was not an agreed process for negotiating a new agreement with Kempe. The current agreement at the second paragraph of clause 3 states:

PN47

Six weeks prior to the completion of this agreement's period of operation, the consultative committee which established the agreement shall formally review the operation of this agreement.

PN48

The next paragraph states that:

PN49

While it is the intent of the parties to renew this agreement, it shall be for the consultative committee to identify aspects of this agreement which, due to changing circumstances, require change whilst ensuring the successful agreement of our stated aims and intent.

PN50

And I have a copy of the agreement here, Commissioner, so that you can just - - -

PN51

THE COMMISSIONER: I won't mark it; it is an instrument of the Commission.

PN52

MR DALTON: It is clause 3, Commissioner, the second and third paragraphs under the Date of Period of Operation at clause 3:

PN53

The agreement shall operate from 1 July 2000 and shall continue in operation until 31 March 2003.

PN54

And the second and third paragraphs outline a process for the establishment of another agreement following the expiry of this one. Now, as with the current agreement, the role of the consultative committee in negotiating the new agreement was to be direct and hands-on. The company was advised on 29 April that the consultative committee to negotiate a new agreement had been set up and that they were ready to start discussions, 29 April. Now, the company responded that it was ready to start negotiations once industrial action was lifted.

PN55

Now, the company's position continued to be as it was relayed to Mr Robb earlier in the year. It would negotiate an enterprise-specific agreement. The company did not wish to be part of a collective negotiation process and so declined the union's offer to attend the meeting of 14 March. On Friday, 11 April, between 3.30 and 4 pm, the company held information meetings with its employees to advise the company of the company's preparedness to negotiate a new enterprise agreement and stated that it was opposed to ready acceptance of any pattern agreement.

PN56

On 15 April 2003 the company received a letter, and I have a copy of that - - -

PN57

THE COMMISSIONER: Exhibit K6.

EXHIBIT #K6 LETTER TO COMPANY TO ATTEND MEETING AT GEELONG TRADES HALL TO DISCUSS EBA FOR 2003

PN58

MR DALTON: - - - inviting the company to attend a meeting at the Geelong Trades Hall on 16 April 2003 to report back and discuss your new EBA for 2003 Report back what? There was nothing to report back to Kempe as no negotiations had commenced. This letter also states that:

PN59

If you are able to attend, please ring and confirm.

PN60

Again, Kempe was just one of a number of companies invited to attend this meeting, and this was just another attempt by the union at collective negotiations. It wasn't about Kempe's agreement, but it was about a collective agreement for the Geelong area.

PN61

Now, on 17 April the union held a meeting of employees of metal trades contractors at Alcoa Point Henry. It was following that meeting that the company received the industrial action negotiation dated on 17 April. Now, this is the sum total of interaction between the union and the company regarding the negotiation of a new enterprise agreement.

PN62

Now, in terms of this, I would point the Commission to the decision of 29 August 2000, print 9711, of Munro J, which addressed the issue of termination of a bargaining period under the provisions of whether or not a party is genuinely trying to reach an agreement. I have a copy of that decision, if the Commission -

EXHIBIT #K7 DECISION OF 29/09/2000 OF MUNRO J RE TERMINATION OF BARGAINING PERIOD

PN63

MR DALTON: Now, in his paragraph 1 his Honour states, and it is probably four lines down about halfway along the line:

PN64

I would be disposed to suspend those bargaining periods between employer negotiating parties and respective unions that have not yet properly been subject to negotiations within the bargaining period in question and where industrial action that is notified -

PN65

and he is referring to 29 August 2000 -

PN66

is premature.

PN67

And further in the same paragraph his honour states, and I will just try and find -

PN68

THE COMMISSIONER: Bottom line?

PN69

MR DALTON: Where he starts off with "My strong view," bottom line of page 2.

[11.24am]

PN70

MR DALTON: Yes. Bottom line there:

PN71

My strong view that industrial action should not be commenced against an employee ...(reads)... has not been properly established.

PN72

And at paragraph 10 his Honour states:

PN73

I have in the course of argument pointed out that the basis upon which I could be ...(reads)... fairly readily available contradictory material from the unions.

PN74

Now I know he is referring to a specific scenario, but he does mention in terms of negotiation an agreement that in the absence of at least one or two meetings it would be hard to establish that there had been any real negotiations, and as you are no doubt aware, Commissioner, the authority of Munro Js view on genuinely trying to reach agreement have received their own footnote in the Workplace Relations Act. Now, with regard to Munro Js test considering the number of meetings, there have been no specific meetings between the company and the union to negotiation Kempe Installation and Maintenance Services specific agreement, nor have any been sought by the union.

PN75

Another decision that may be helpful in working through the genuinely try test is a Full Bench decision of 10 November 1994, and I have a copy of that decision as well.

EXHIBIT #K8 FULL BENCH DECISION 10/11/1994

PN76

MR DALTON: Now, this is a decision that had the President, Vice President and a Commissioner on it. It deals with the genuinely try, sought to reach agreement, with regard to a safety net. But the Full Bench does deal with the genuinely try test, and on page 5 at the bottom of the page, the Full Bench says:

PN77

The question of whether or not a union applicant has genuinely sought to reach ...(reads)... the circumstances in a particular case.

PN78

THE COMMISSIONER: Can you just tell me, Mr Dalton, where you are reading that from? Sorry.

PN79

MR DALTON: Sorry. Bottom of page 5, Commissioner. There is an indent that says "relevant tests".

PN80

THE COMMISSIONER: I have it now, yes. Thank you.

PN81

MR DALTON: Yes. Okay, and the rest of it carries over to page 6:

PN82

... essentially matters to be determined by individual Members of the Commission on the basis ...(reads)... and not demonstrating any preparedness to shift.

PN83

And it refers to another decision there:

PN84

In deciding whether or not a party has negotiated in good faith the Commission will have regard ...

PN85

I have - that looks like a spelling:

PN86

... whether the party concerned ...

PN87

I expect it says:

PN88

... has agreed to meet at reasonable times proposed by the other party, attended meetings ...(reads)... or in connection with the negotiations contravened, section 170RB.

PN89

We don't need to go through that, and the last paragraph there it says:

PN90

We reiterate that the question of whether or not the tests associated with the second ...(reads)... having regard to the conduct of the parties.

PN91

Now, in terms of this matter, it is the company's clear contention that while the union has served a bargaining period on the company, it has not sought to genuinely engage the company in the bargaining process. It has not sought the assistance of the Commission, and the issue of good faith bargaining really doesn't enter into consideration, as there ha been no bargaining. Now, Commissioner, as can be seen from the multiple notices of industrial action, this company is the subject of significant industrial action by the union.

PN92

This action is premature and is not built on a foundation of the union genuinely trying to reach agreement with the company about the terms of a new agreement before entering into this industrial action. The company is seeking that the Commission exercise the clear powers that it has to terminate the bargaining period, established under bargaining period number 2003/2427, on the grounds that the union has not genuinely tried to reach an agreement with the other negotiating party before organising or taking the industrial action.

PN93

The company also seeks that there be a prohibition on the establishment of a new bargaining period for a period of six weeks to allow for genuine negotiations to take place between the parties. This is the period that is specified in the enterprise agreement, at the third paragraph of clause 3, and we believe it is appropriate in these circumstances. If the Commission pleases.

PN94

THE COMMISSIONER: Thank you. Mr Addison?

PN95

MR ADDISON: Yes, thanks, Commissioner. Commissioner, as I have indicated earlier I have no instructions with regard to this matter, and what has just been put I can only take on face value. It seems to me that the argument my friend puts is based on people not genuinely trying to reach agreement. However, the evidence that my friend puts forward paints, in my submission, an entirely different picture. There is an enterprise bargaining agreement which has expired. The enterprise bargaining agreement required the consultative committee to meet six weeks prior to 31 March. That would be some time in the middle of February, one presumes.

PN96

The agreement is binding on the employer and the union. The consultative committee is a committee under the control of the employer. Now, the employer has some responsibility with regard to that commitment, and one would presume that the employer would have sought to convene the consultative committee prior to the end of February, at least, and have some genuine negotiations. Now, on the face of the letter which is marked K4 from Mr Diehm, it would prima facie suggest that those meetings did occur. He says, in the second paragraph:

PN97

The shop stewards on the job have held meetings with the company in relation to negotiating the new Kempe agreement.

PN98

THE COMMISSIONER: Is that the same thing as the union issuing a notification of industrial action? I mean - - -

PN99

MR ADDISON: Well, I will get there, Commissioner.

PN100

THE COMMISSIONER: Yes.

PN101

MR ADDISON: I will get there, because the authority that my friend relies on, in terms of the 1994 decision, understanding that the 1994 decision was based on the provisions of the 1988 Industrial Relations Act, not the 1996 Workplace Relations Act. It was a different bargaining regime, and of course, present in the 1988 Act was section 170QK, which was specifically and deliberately removed from the Workplace Relations Act 1996, and you will recall, Commissioner, that section 170QK required parties to bargain in good faith.

PN102

That requirement no longer exists within the Workplace Relations Act, and there were some specific decisions with regard to section 170QK that set out effectively what bargaining in good faith was, and this is one of them. Now, if we have a look at the authority and we have a look at the tests that my friend has already pointed to:

PN103

... repeated unsuccessful attempts to engage the employer in the bargaining process.

PN104

THE COMMISSIONER: Where are you reading from?

PN105

MR ADDISON: The last decision that was handed to you, Commissioner. It is page 6 of 7. It is the quote that my friend relies on:

PN106

... repeated unsuccessful attempts to engage the employer in the bargaining process.

PN107

Can I refer the Commission to K5 and to K6. There have been in fact two attempts by the union, as the central body, to engage the employer in the bargaining process. Now, the employer did not attend. Why did the employer not attend? Well, my friend's submission is the AIG told them not to attend. Now, the question is, who is showing the good faith here? In my submission the good faith is demonstrated in K5 and K6. There have been attempts by the AMWU to engage this company in negotiations.

PN108

The AIG do not like the form that the AMWU proposes for the negotiations, so the AIG tell their member, "Do not attend those negotiations." We say bona fides on the AMWUs side, mala fides on the Kempe AIG side. It is a clear demonstration of mala fides on the part of AIG and Kempe. They have refused to attend the meetings. They say they do not like the forum that has been proposed, therefore they are not going to attend. On the authority that my friend relies on, which is the Full Bench decision of 1994, the test, we say, we have met. The next test, the initiation of a bargaining period, well, Commissioner. That is not in argument. That is K1. The bargaining period is in.

PN109

Third, seeking the assistance of the Commission under QK. Commissioner, QK was repealed in 1996. QK no longer exists, therefore that test cannot possibly be extant at this point in time, because QK does not exist. And thirdly - so now to the third test, because the third test disappears. The fourth tests, I suppose, becomes the third test. Conduct of both parties and whether they have negotiated in good faith. Now, I would say, Commissioner, that that links back to the previous third test, because QK was the requirement to bargain in good faith.

PN110

Now, the Act requires no more than a genuine attempt. That is all the Act requires. I may say, Commissioner, that the requirement for good faith following this Full Bench decision was further clarified in a case which I don't have at hand, because as you know I have no instructions. I have just rushed down from another matter. But in a further case, the ABC case, and you would recall the ABC case, I am sure, Commissioner. That was another Full Bench case, where the ABC staff association, I think it was, were pursuing issues of importance to that organisation with the ABC management. They would not move from their position.

PN111

They said to the management, "This position is important to us. We are not going to compromise this claim." They then took protected industrial action, and the ABC management brought the matter to the Commission for determination and said, "These people are not bargaining in good faith because they will not move from their position." The Full Bench of the Commission found that it is not a breach of good faith for a negotiating party to stand rigid and firm on a position which is important to them. So good faith does not require movement, necessarily. It requires good faith in terms of the negotiators.

PN112

Once again, Commissioner, my submission would be that K5 and K6 clearly, clearly demonstrate good faith, bona fides, and a genuine attempt to reach an agreement with this employer, and this employer has refused and shows its mala fides, refused to attend those meetings and refused to be involved in those negotiations, which the union has genuinely and bona fide tried to establish, and they have done that on the advice of their industrial association. Now, Commissioner, if I could turn to the protected action itself. The protected action itself. I just want to clarify this for the sake of where we are at.

PN113

If you go to the bundle, K2, the first notice in K2 is no longer extant. It has gone. The action that is referred to has occurred and gone. The next document, and I think my friend says it really doesn't affect the company anyway, but in any event, it expires this Saturday, which is 3 May. You will note at the bottom, Commissioner, under the list of four points, the industrial action is only proposed for a two week period anyway, and from 19 April for two weeks becomes 3 May, so that disappears, and that no longer is in existence.

PN114

THE COMMISSIONER: Well, it is still in existence for another two days.

PN115

MR ADDISON: For another two days, yes. I accept that. But that is what I am saying. After Saturday it is gone. So the two issues we are really dealing with are the third and the fourth notice, which concerns rolling stoppages and effectively overtime bans. The second notice is effectively overtime. I think point 1 and point 3 say the same thing in different language, so it is really overtime bans, a ban on shift work, and a ban on call outs. Now, we say that the union is entitled to organise industrial action under the provisions of the Act, when it has made a genuine attempt to reach an agreement with the employer, and the employer has refused to - sorry, let me withdraw that. Let me take that a different way. That is not right. The union is entitled to take protected industrial action against an employer when the union has made a genuine attempt to reach an agreement and the employer, for its part, exercises its rights to say no, and that is exactly the position we are in here. The union has genuinely attempted to reach agreement. Mr Diehm's letter evidences that there have been discussions with the stewards first, so there have been discussions with the stewards.

PN116

Secondly, the union has, on two occasions now, attempted to get the employer into a forum to negotiate. The employer has exercised its rights, and I don't decry it its rights. It has its rights, and its rights are those which are exactly the same as union rights under the ABC case to say, "No, this is a matter of importance to us. We are going to stand on our digs, and we are not going to reach agreement with you over that issue." That is their right. Our right in response is to taking protected industrial action. That is what is occurring.

PN117

Even under the test that Munro J lays down, and understand that the test in Munro Js decision was in a particular context, during the last round of enterprise bargaining, if you like. It was campaign 2000, and you would recall, Commissioner, the AMWU served 2500 bargaining periods, or thereabouts. The AMWU had protected action with a raft of companies, probably hundreds. Munro J suspended 30 bargaining periods, but - and in his specific decisions he does set an arbitrary target, but he says very clearly, it is a somewhat arbitrary measure of assessment, and it was an arbitrary measure of assessment depending on all of the circumstances that pertained at that particular point in time that led him to this, and he said one or two meetings.

PN118

Now, link that one or two meetings with the authority my friend relies on from 1994, and the first test in that authority:

PN119

... repeated unsuccessful attempts to engage the employer in the bargaining process.

PN120

Well, Commissioner, the two authorities read together can only lead to one conclusion. On the evidence that has been put on the submissions from my friend, it can only lead to one conclusion. That is, the union has genuinely attempted, and I divorce the union for the purposes of this proposition from the stewards, because we know the stewards have been trying to negotiate with the company. I don't know how many meetings the stewards have had with the company. One would presume, over the six week period, there would have been a number. The normal process in our organisation and the normal way our stewards operate, and certainly in this company, because I have had dealings with this company on a number of occasions. The stewards would have been getting advice from either Mr Robb or Mr Whelan down in Geelong.

PN121

So the Stewards wouldn't have been negotiating in isolation. They had been getting advice from the union and going along through the process, as we all agreed in clause 3 of the previous agreement. So we had a series of negotiations going on, and then the union as a centralised body has made a bona fide attempt on two occasions, on 7 March and then again on 15 April, to sit down and have face to face negotiations with this employer, with officials of the union, and the employer refuses to attend. We say it is a bit rich for an employer to refuse to negotiate with a union and then trot off to the Commission and seek to have the bargaining period suspended, on the basis that the union has not genuinely tried to reach agreement.

PN122

THE COMMISSIONER: When you say the union sit down face to face with the company, do you mean just the company?

PN123

MR ADDISON: I mean a range of employers, a range of employers. That is not outlawed in the Act, Commissioner.

PN124

THE COMMISSIONER: I am not sure it is an adequate description of face to face, is it?

PN125

MR ADDISON: We have invited individuals from the company to come to the union office in Elizabeth Street, on 14 March. The manager, who is here today from Kempe, would have been sitting in a room, and he would have had in front of him the relevant officials who have got responsibility for his workshop, his maintenance activities, his whatever. That cannot be described as anything but, in my submission, face to face negotiations, Commissioner. It is face to face negotiations. Quite clearly.

PN126

THE COMMISSIONER: Is it enterprise bargaining?

PN127

MR ADDISON: Sorry?

PN128

THE COMMISSIONER: Is it enterprise bargaining?

PN129

MR ADDISON: Yes, it is, Commissioner. Absolutely. Absolutely enterprise bargaining, and the same process, the same process mind you, that was carried out in the year 2000, at the time that Munro J made this decision that is relied on, and as I said, out of hundreds and hundreds and hundreds of companies, Munro J cancelled the bargaining period of 30, and he only suspended them for a short period of time, as I recall. I haven't re-read this decision since then, but I think it was a week, could possibly have been 10 days, and that was the suspension period, just to allow a couple of meetings that hadn't occurred, and there had been no meetings. You need to understand that. No meetings, and no attempts at meetings with those 30 companies at that point in time.

PN130

We are in an entirely different situation and circumstance here, Commissioner, where we have the AIG saying, "Yes, the union has attempted to meet with us, but we have told our client or our member not to meet with the union." We say there is no basis for cancelling the bargaining period. Commissioner, with that said, understand I am working off the authorities. I am working off the documents that have been produced by my friends. I have no instructions with regard to the matter. I have not been able to contact any of the officials, or any of the shop stewards involved.

PN131

I would renew my application for an adjournment on this basis, Commissioner. The Commission is entitled and should, under section 110, inform itself with regard to matters. There is no set process with regard to how the Commission informs itself, but under 110(2)(c):

PN132

The Commission shall act according to equity, good conscience, and the substantial merits of the case without regard to technicalities or legal forms.

PN133

Now, we say, just based on the submissions of the two parties before you this morning, Commissioner, there are some factual matters that would be useful for the Commission to inform itself about. Those factual matters would be knowledge of what negotiations occurred with the stewards, effectively. If there have been six meetings with the stewards, and the stewards have clearly been on the phone to the organisers, and ra ra ra, that is an important factor that the Commission needs to know. If there had been no attempt on the part of the employer to get the consultative committee together, or there had been negative attempts on the part of the employer, to discourage the consultative committee from coming together, that is an important fact that the Commission ought to know.

PN134

So it is my submission that you would be in a better position with some submissions based on proper instructions. In any event, Commissioner, if you decide to decline that application, it is my submission that on the material presented by my friend, and on the submissions made this morning, the Commission ought not suspend or cancel the bargaining period. This is a discretionary power. It is not a mandatory power. It is a discretionary power and the Commission may or may not cancel the bargaining period. Based on the material before you, Commissioner, it is my submission you can only come to one conclusion. That there have been negotiations. There have been attempts to reach an agreement. There has been clear invitations issued to the company which, on the advice of the company's association, the AIG, they have declined, but there have been genuine bona fide attempts to engage them in the bargaining process.

PN135

We say the grounds of section 170MW(2)(a) are not made out in any substantial sense at all, and we say the reverse in fact has been made out, and that there is clear evidence before the Commission of genuine attempts to reach agreement by the AMWU, and the Commission should dismiss this application, either this morning or after hearing some further evidentiary material from the AMWU on the matter. If the Commission pleases.

PN136

THE COMMISSIONER: Mr Dalton?

[11.53am]

PN137

MR DALTON: Yes, thank you, Commissioner. My colleague has raised a number of points and I will have to try and address them. The first point I would like to address is that the union is entitled to organise action and has made a genuine attempt to reach agreement and that the company has just said no to that genuine attempt and that is that they invited us to meetings. Those meetings - their genuine attempt is based on that they have - part of their process is to bargain collectively. And they have invited us to those collective meetings, and it is part of the employer's right to say no, in holding a firm position, that we will not bargain collectively. Okay.

PN138

Now, in terms of that, I would say that if we have a look at the Notice of Initiation of a Bargaining Period - I think that was K1 - attached to that is the log of claims and nowhere in that log of claims is there a claim that the company must bargain collectively. So if there is not a claim that the company must bargain collectively with the company, then, in terms of that, the issue of the company saying no to bargaining collectively, is not a basis on which they can take industrial action. There has never been a claim to bargain collectively. So that is the first point I would wish to make. Just because the company has a firm position and has said no, does not mean that it is just exercising its rights to take a firm position against a claim by the union. There is no claim by the union to bargain collectively.

PN139

Now my friend is also suggesting that it is a matter of fact that there have been meetings with the stewards simply because the letter from their official, at K4, makes the assertion. I have said in my submission, and I stand by and I am happy to put Mr Beatty in the box to give evidence on it, there has been no meetings with shop stewards on site about an enterprise agreement, no meetings. It was only on 29 April that the employees advised the company that they had got their part of the consultative committee together and were ready to start the process. There have been no meetings with the consultative committee.

PN140

So in terms of that, to suggest that there have been meetings on site with the consultative committee, based on that letter, we say we refute that utterly. Now we also say that the two attempts to engage the company - sorry, to request the attendance of the company at meetings held by the union, are not genuine attempts to engage the company in enterprise bargaining. They are attempts to engage the company in a process of collective bargaining and that is not genuine enterprise bargaining. Enterprise bargaining means at the enterprise, it does not mean a collective outcome.

PN141

So, in terms of that, there has been no attempts by this union to engage this company in an enterprise bargaining process specific to Kempe Installation and Maintenance Services. It has only attempted to invite the company to meetings, collective meetings, as specified clearly in the letter and has been agreed to by my colleague, these are collective meetings, they do not constitute face to face negotiations about the issues at Kempe Installation and Maintenance Services; they are only collective agreements - sorry. They are collective meetings about collective outcomes.

PN142

So there has been no attempt, on our submission, to engage Kempe in individual enterprise bargaining.

PN143

THE COMMISSIONER: Where in the Act do you say that you are supported in that argument?

PN144

MR DALTON: The - - -

PN145

THE COMMISSIONER: I mean, can I take you particularly to 170L, the object.

PN146

MR DALTON: Sorry, section 170L?

PN147

THE COMMISSIONER: That is all, 170L.

PN148

MR DALTON: 170L. Sorry, Commissioner.

PN149

THE COMMISSIONER: It is the object of that part and it says:

PN150

The object of this part is to facilitate the making and certifying by the Commission of certain agreements, particularly at the level of a single business or part of a single business.

PN151

It doesn't say exclusively, does it?

PN152

MR DALTON: No, Commissioner, it doesn't say it but, in terms of that, we say that the - that it has been clear that the issue of - while the union may make collective claims and that is not, in itself, a abrogation of the enterprise bargaining process, what we are saying is that the issue here is that the company has said that it wants to negotiate an individual agreement. It has made that clear to the union. And, in terms of that, that is how the process happened last time with the consultative committee. The issue here with regards to:

PN153

The making and certifying by the Commission of certain agreements, particularly at the level of single business or part of a single business.

PN154

Now while the Act could not preclude collective agreements and some agreements are negotiated on that basis, we say that the company here has made it clear that it wishes to negotiate on an individual basis and that is the way that it has happened in the past and it wishes to continue happening in the future.

PN155

THE COMMISSIONER: And you say that that is not an example of bargaining, genuine bargaining?

PN156

MR DALTON: We say it is not an example of genuinely attempting to reach agreement with this company, just to invite them to collective meetings of which many, many companies did not attend and to then say that that is a genuine attempt to reach an agreement with this company. We say that that is drawing a bow of such length that it defies credibility. The issue that the consultative committee is under the control of the company and that the company should have called a meeting of the consultative committee; again, that is not how it works at the workplace.

PN157

In terms of this, this is a specific consultative committee who - it is not a standing committee, it is a committee whose job it is to negotiate the enterprise agreement and that is why the enterprise agreement makes a specific reference to the need for the consultative committee to start its process six weeks prior to the expiration of the current agreement. So it is not the role and responsibility of the company to organise the employee side of the consultative committee to negotiate this agreement. It is the employees and the union's responsibility to organise their side to review the agreement and to talk to - look to issues that require change. That did not occur prior to 29 April.

PN158

Now my colleague has also raised the issue of good faith bargaining and that has been removed. The issue there is, I was not pointing to the good faith bargaining, I was looking at the issue of what a genuinely try was looking at, the fact that there needed to be meetings or an attempt to arrange meetings and that there was an opportunity if those meetings had not occurred, then that would be a sufficient ground for the union to make a reasonable claim that they had genuinely tried. But in this particular case there has been no attempt to individually engage Kempe Installation and Maintenance Services in any process of negotiation.

PN159

The two attempts have been about collective bargaining, not enterprise bargaining. The ABC case about holding a strength of position, I am not sure of the relevance of that because, in terms of that, there is no strength of a position that we are arguing about, here, the company - there is no real position that the parties have been negotiating. So, in terms of that, the strength of anyone's position is irrelevant. The issue of K2 about the notifications; yes, the first notification has expired, the second notification - my colleague that that merely has no effect.

PN160

The first point and second point, I pointed out, had little effect because the company doesn't go to Ford, Holden and Toyota very much. But the third and fourth point do have significant effect on this company. And those points, total ban by all employees from working at all other clients sites to perform shutdown work. Now that does only have a couple of days to run but it has been disruptive. And the third and fourth are continuing for a significantly long period and rolling stoppages and bans on overtime, shiftwork and call-out are significantly effecting this company's operations.

PN161

So in terms of that, Commissioner, the company is not refusing to negotiate. The company has made it very clear to the union, its shop steward and the employees on site, that it is prepared to negotiate, it is prepared to negotiate an enterprise agreement; it is not prepared to negotiate or be part of collective negotiations. And we do not believe that the inviting of a company, along with many other companies, could constitute face to face negotiations. The issues related to individual application of an agreement at a particular site, would not be dealt with, in our submissions, at a collective agreement and therefore, it could not be called a bona-fide attempt to reach an agreement with the company.

PN162

In our submissions, Commissioner, there is enough information for you to make a decision on this matter, the union has had an opportunity to prepare and to put its submissions and so my colleague has done a very good job of putting his submission, today. In terms of this the basics of this matter, as far as the company concerned, is, it is the subject of significant and disruptive industrial action that carries on for a significant period into the future. We say that there has been no genuine attempt to reach an agreement, as evidenced by the submissions made here today, and the only counter to that is the letter made by the organiser claiming that there have been meetings - we refute that - and the two notices from the union inviting the company to collective meetings, and we say that they are not genuine attempts to engage this company in individual enterprise agreement negotiations.

PN163

So, in terms of that, Commissioner, we say that there is enough evidence for you to make a decision on this matter, this company needs to get the matters back onto an even footing. I believe that the termination or suspension of a bargaining period for a period of six weeks, would allow all the parties an opportunity to clear the slate, to sit down around the table without industrial action confusing or hampering the negotiations, and in terms of that, all parties could get on with the job of negotiating a new agreement. If the Commission pleases.

PN164

MR ADDISON: Commissioner, can I just deal with one issue? I apologise for trying to take a second bite at the cherry but it is important. The Act requires a genuine attempt to reach an agreement. My friend's whole argument revolves around his definition of enterprise bargaining. You quite correctly point to section 170L to say there is no requirement for enterprise bargaining as my friend's definition of it would have it. However, can I refer the Commission to the principal objects of the Act which override all of the other objects. And particularly, if I can take the Commission to object C of the Principal Objects which reads:

PN165

Enabling employers and employees to choose the most appropriate form of agreement for their particular circumstances, whether or not that form is provided for by this Act.

PN166

Now we say, and my friend concedes there has been an attempt to reach an agreement, my friend concedes that in his own submissions. He says, being invited to two meetings which we don't like the format of, doesn't constitute a genuine attempt to reach an enterprise specific agreement. And he might be right on that point, however, that argument has no support under the terms of the Act, particularly under the terms of the objects of the part and the objects of the Act, it has no support at all and I don't think there is any authority in this Commission that my friend could point to to support his argument, either.

PN167

We say there have been genuine attempts to reach an agreement. Just because my friend doesn't like the form of that agreement doesn't mean it is an illegitimate or improper use of the processes of the Act. So I just wanted to make that point clear, Commissioner. If the Commission pleases.

PN168

THE COMMISSIONER: Thank you.

PN169

MR DALTON: Well, Commissioner, my friend has had a second bite and I think that - - -

PN170

MR ADDISON: You can have a third.

PN171

MR DALTON: In terms of this, while he has pointed to point C of the Principal Objects of this Act, I think it is also appropriate to point to point B:

PN172

Ensuring that the primary responsibility for determining matters affecting the relationship between employers and employees, rests with the employer and employees at the workplace or enterprise level.

PN173

And at point D1:

PN174

For wages and conditions of employment to be determined as far as possible by agreement of employers and employees at the workplace or enterprise level, upon a foundation of minimum standards.

PN175

So, in terms of that, Commissioner, we would say that the practice and history of this particular company is that they have worked matters out at the workplace level and we say that it is not a genuine attempt. And I come to the point of the actual words used in enterprise bargaining, an enterprise is a single entity, it is not a collective entity. We are not talking about a collective agreement, here, we are talking about a single entity enterprise agreement. If the Commission pleases.

PN176

THE COMMISSIONER: Thank you.

PN177

MR ADDISON: Just on that point once again; my friend confuses it. The Act does not require an enterprise agreement, the Act requires an agreement, end of story. There is no qualifier on agreement. It does not have to be a specific enterprise agreement. So whilst my friend can point to all of that, it means nothing, Commissioner, in terms of the functions that you need to exercise under the terms of the legislation. If the Commission pleases.

PN178

THE COMMISSIONER: Pursuant to section 110 of the Act, I have decided that this matter will be adjourned to 2.00 pm, tomorrow, Friday 2 May 2003, to extend to the union the opportunity to present its case to conclusion and the employer to respond to all matter then before the Commission. Pursuant to section 111T, it is recommended that in the interim the union and its members are to immediately suspend all bans and restrictions on work and any other industrial action, protected or otherwise, till such time as the Commission determines this application.

PN179

The parties are requested to meet before tomorrow's listing in a genuine attempt to establish a settled program or process for negotiations and report back the outcome of those discussions to the Commission when in session. I will print that and provide it to you if you want to wait for it.

PN180

MR DALTON: Yes, thank you, Commissioner.

PN181

MR ADDISON: Thanks, Commissioner.

PN182

THE COMMISSIONER: This matter is adjourned until tomorrow.

ADJOURNED UNTIL FRIDAY, 2 MAY 2003 [12.11pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #K1 NOTICE OF INITIATION OF BARGAINING PERIOD DATED 20/3/2003 PN18
EXHIBIT #K2 FOUR NOTICES OF INTENDED INDUSTRIAL ACTION PN26
EXHIBIT #K3 LETTER FROM KEMPE TO UNION DATED 17/4/2003 PN36
EXHIBIT #K4 COPY LETTER OF 24/4/2003 PN40
EXHIBIT #K5 LETTER TO COMPANY DATED 07/03/2002 TO ATTEND NEGOTIATIONS OVER NEXT AGREEMENT AT AMWU OFFICES IN MELBOURNE PN43
EXHIBIT #K6 LETTER TO COMPANY TO ATTEND MEETING AT GEELONG TRADES HALL TO DISCUSS EBA FOR 2003 PN58
EXHIBIT #K7 DECISION OF 29/09/2000 OF MUNRO J RE TERMINATION OF BARGAINING PERIOD PN63
EXHIBIT #K8 FULL BENCH DECISION 10/11/1994 PN76