C2001/5866, Transcript of Proceedings [2003] AIRCTrans 1960 (23 May 2003)

AUSCRIPT PTY LTD
ABN 76 082 664 220

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

O/N 2572
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER EAMES

C2001/5866
C2003/1938
C2003/2256

AUSTRALIAN MUNICIPAL, ADMINISTRATIVE,
CLERICAL AND SERVICES UNION

and

AUSTAR ENTERTAINMENT PTY LIMITED
and OTHERS

Notification pursuant to section 99 of the Act
of a dispute re conditions of employment

THE FOXTEL AWARD 1999

Application under section 33 on the Commissioner's
own motion to vary re consent variation to clause
4 - parties bound

AUSTAR ENTERTAINMENT PTY LIMITED
AWARD 2002

Application under section 33 on the Commissioner's
own motion to vary re consent variation to the
award

MELBOURNE

2.00 PM, THURSDAY, 8 MAY 2003

Continued from 17.5.02

PN2877

THE COMMISSIONER: Thank you. I will take the appearances, please.

PN2878

MR J. NUCIFORA: I appear for the Australian Services Union in all matters before you today.

PN2879

MS R. NEWMAN: I appear for Austar Entertainment Pty Limited.

PN2880

MR P. BROWN: I seek leave to appear in relation to Foxtel Pty Limited and Customer Service Pty Limited.

PN2881

THE COMMISSIONER: Thank you. I take it there is no objection to the appearance of Mr Brown.

PN2882

MR NUCIFORA: No, Commissioner.

PN2883

THE COMMISSIONER: Yes, leave is granted, Mr Brown.

PN2884

MR BROWN: Thank you.

PN2885

THE COMMISSIONER: For my sins, these files have revisited me and I don't know what I have done to deserve this honour, but perhaps you could tell me about it, Mr Nucifora.

PN2886

MR NUCIFORA: Thank you, Commissioner. It is a long story, but I won't go right back to the beginning.

PN2887

THE COMMISSIONER: No, please don't. We don't want to do another lap of that course.

PN2888

MR NUCIFORA: And I understand there is an audience at the back. I won't tell them the full story, they may go to sleep, but, no, this is another chapter, of course, in relation to originally the formal dispute finding between the ASU and Austar Pty Limited, Foxtel Entertainment and Customer Services Pty Limited. There was a decision of yours, Commissioner, in finding a formal dispute between all the parties before you and went to a Full Bench and the Full Bench confirmed the original dispute finding.

PN2889

Commissioner, arising out of that, there had been discussions, constructive discussions between our unions at the branch level and nationally with all of the employers and in particular, the upshot of that was that the employers had consented in principle to the union becoming a party to the two key awards that are before you an what we would say, Commissioner, is that there are really three matters before you. One is, of course, the original dispute finding in C2001/5866. The other one is an application to vary the Foxtel Award in C2003/1938 and then there is an application to vary the Austar Entertainment Pty Limited Award in C2003/2256.

PN2890

Now, we could have them heard in conjunction with each other. There is the original dispute finding, but what we would propose is, in fact, that the parties are all here because of the dispute finding. We would propose that we deal with the Austar application first and then there are some issues that we need to address in relation to the Foxtel application. Now, Commissioner, if those matters - I am just wondering, if they are all listed together, whether we need separate exhibits for each of those C numbers.

PN2891

THE COMMISSIONER: Look, I don't think so. I think simply if we deal with the applications as you have agreed today, to the extent that any matters need joining in relation to this, I should indicate for the record that I am prepared to formally do that, but I take it from what you say and there are some differences between the two applications and it is probably preferable in terms of the issuance of any orders that flow from today that they be dealt with separately. I understand that.

PN2892

MR NUCIFORA: Yes, all right, Commissioner. Well, maybe if we go to C2003/2256.

PN2893

THE COMMISSIONER: Yes.

PN2894

MR NUCIFORA: In relation to that matters, there was correspondence, if I could refer you to that, Commissioner, dated Friday, 2 May 2003, addressed to the industrial registrar from our union.

PN2895

THE COMMISSIONER: Yes, I have that.

PN2896

MR NUCIFORA: And I don't have extra copies of that here, Commissioner. It came second in the order of things, but that is on the file.

PN2897

THE COMMISSIONER: Yes, we have that.

PN2898

MR NUCIFORA: And I did send a copy to Mr Lund who, of course, we have Ms Newman here in place of Mr Lund on behalf of Austar. Now, in that letter we indicate that we refer to an application pursuant to section 33B(1) of the Workplace Relations Act for a member of the Commission to exercise the Commission's own motion powers to make a section 111(1)(f) variation to the award. We have actually straddled two provisions there, there are two quite separate provisions. If you look at 33, in A it says 33A of its own -

PN2899

under powers, may be exercise of Commission's own motion or on application.

PN2900

It refers there in section 33A:

PN2901

Subject to this Act, the Commission may perform a function or exercise a power of its own motion -

PN2902

and we have referred to that in our letter and then it says:

PN2903

Or, (b) on the application of, (b)(i) a party to an industrial dispute.

PN2904

They are two separate processes, I guess, and what we have referred to in our letter is actually both. Now, the reason why we raise - we would say that it is sufficient to rely on section 33B(1), particularly now as we have a separate application C number, C2003/2256, we are a party to an industrial dispute and we have drafted a draft order as a section 33B(1). Now, if there were any issues with that, any technical issues with that, we would - equally we could have relied on the Commission's own motion because there was consent between the parties, but we would say, Commissioner, that, in fact, the section 33B(1) ought be sufficient. There is consent from the employer. I will come back to consent by the MEAA, but if I may table at this point, Commissioner, a copy of a draft order.

PN2905

THE COMMISSIONER: Thank you.

PN2906

MR NUCIFORA: There is an electronic copy that I sent via e-mail to your Associate this morning, Commissioner. I didn't add at the top, it is now, of course, C2003/2256 and I appreciate the Commission's indulgence in organising that.

PN2907

THE COMMISSIONER: That is fine. In fact, initially we thought we had lost the original files in the ether of our records management unit, but just the day before yesterday, they amazingly turned up again, but in the meantime we had created what are euphemistically known as dummy files in order to allow the matter to proceed today. The dummy is no reflection on anyone present.

PN2908

MR NUCIFORA: Thank you, Commissioner.

PN2909

THE COMMISSIONER: But in terms of using the vehicle of section 33, I am comfortable with that approach, Mr Nucifora.

PN2910

MR NUCIFORA: Yes, thank you, Commissioner. Commissioner, if I may table that as an exhibit.

EXHIBIT #N1 COPY DRAFT ORDER

PN2911

MR NUCIFORA: In that there, we refer, of course, and I have just added in biro, but it ought read 2256 at the top where it is blank in the C number and then we have, of course, we have the original dispute finding and, of course, the preamble referring to the award. In A1, we have sought only minimal changes to the award and in this case, of course, we have included in 3.1, a new 3.1 that refers to the full name of our union and the original dispute finding and we consider that being very important and the reason why we needed to go down the section 33 path is that we are not an existing party to the award, but we are party to a relevant dispute finding and the standing, the legal standing of the roping in, if you like, is that we refer to the dispute finding there in 3.1.

PN2912

Now, the only other change that we then - we make no other change to 3.1. In item 2 we make a change to 7.3 and in particular where I think it originally said the MEAA, at the end of the last line of that, we have changed it for the relevant union because there are of course two unions involved. Now, we are seeking, of course, that the variation be made operative from the first pay period on or after today's date. Ms Newman has raised an issue in relation to whether there needs to be any reference to the Full Bench appeal decision.

PN2913

I had thought that the record of findings and the original record of findings which was of course upheld by the appeal decision was sufficient to be referred to there, but considered important that the dispute finding should be there and I have, of course, left a blank for any related decision that you would make, Commissioner, that goes to reflecting this being a part settlement of the original dispute finding between our union and Austar and Others. Now, in relation to the MEAA, if I may table as an exhibit correspondence by way of notification to Mr Chris Warren, the Federal Secretary of the MEAA.

EXHIBIT #N2 LETTER TO C. WARREN

PN2914

MR NUCIFORA: Thank you, Commissioner. Exhibit N2 is correspondence to Mr Warren dated 5 May and it refers to the proposed Foxtel and Austar award variations and, of course, this letter wouldn't come as a total surprise to the MEAA. There is an agreement between our unions in relation to coverage and, of course, support for our union becoming a party to the two awards.

PN2915

Now, in that, we actually refer to both matters that are before you today and we attach in N2 a copy of all of the relevant documentation that should be on your file there, including the draft order for Austar. In response to that, Commissioner, the MEAA responded in correspondence on 6 May, if I may table that as an exhibit.

EXHIBIT #N3 LETTER FROM MEAA DATED 06/05/2003

PN2916

MR NUCIFORA: Thank you, Commissioner. N3 is a short and brief response from the Federal Secretary of the MEAA. If I may read from that and it is addressed to the National Secretary of our union dated 6 May:

PN2917

Thank you for your letter of 5 May regarding the above.

PN2918

It is in relation to the proposed Foxtel and Austar award variation and I quote:

PN2919

The Alliance consents to both applications and related draft orders to vary the Foxtel and Austar Awards to make the ASU a party and authorised John Nucifora to appear at the hearing on the Alliance's behalf in these matters.

PN2920

Now, of course, N2 had a copy of the draft order that is before you and from that, the MEAA consent to the award variation. Commissioner, I mentioned before that I had discussions with Ms Newman before the hearing today and was aware, of course, from Mr Lund and Ms Cottrell, the HR Manager at Austar that in fact there was consent in principle. The issues that they have raised today goes to the Full Bench appeal decision, but I will allow Ms Newman to go to that. I don't know if there is anything more I need to add to the application before you, but we would seek to have the variation approved operative from today's date. If the Commission pleases.

PN2921

THE COMMISSIONER: Thank you. Ms Newman.

PN2922

MS NEWMAN: If the Commission pleases, I will be fairly brief. Three is consent on behalf of Austar Entertainment to the form of order proposed. The issue which my friend raised in respect of comments that I had made regarding the Full Bench decision were simply as a matter of formality. The letter to the Commission dated 2 May 2003 makes reference to the record of findings in the second last paragraph and attaches those record of findings and the record of findings which are attached are, of course, the record of findings made by the Commission at first instance. One matter that I thought would be necessary to clarify with the Commission was simply just to note that, in fact, that record of findings had in effect been confirmed by the Full Bench decision which was handed down on 22 October 2002.

PN2923

THE COMMISSIONER: Thank you. If there is nothing further in relation to this matter, particularly as the Commission constituted in these proceedings is well aware of the history of the development of the proposed order that is sought, I am satisfied that pursuant to the criteria set out in the Act and in particular section 33B(1) of the Act, that it is appropriate to vary the award in the terms sought by the ASU and I will do so in the terms of the draft order, exhibit N1, that has been provided in these proceedings. The order will come into force from the first pay period commencing on or after today's date, 8 May 2003, continue in force for a period of six months. A formal order will be issued to the parties in due course. Do we need to deal with the other matter today?

PN2924

MR NUCIFORA: Yes, if we could, Commissioner.

PN2925

THE COMMISSIONER: Yes, thank you.

PN2926

MS NEWMAN: If the Commission pleases, may I be excused?

PN2927

THE COMMISSIONER: Indeed. Thank you, Ms Newman. Yes, Mr Nucifora.

PN2928

MR NUCIFORA: Thank you, Commissioner. Commissioner, this matter is C2003/1938 in relation to a similar application to vary the Foxtel Award in relation to the ASU becoming a party to that particular award. Commissioner, by way of notification, there is correspondence to Ms McPhee, the Human Resources Manager of Foxtel. If I may table that as an exhibit.

PN2929

THE COMMISSIONER: Just to differentiate from the other matter, I will mark this as exhibit A1.

EXHIBIT #A1 LETTER TO MS McPHEE

PN2930

MR NUCIFORA: Thanks, Commissioner. Exhibit A1 is a notification to Ms McPhee about the attached notice of listing for this particular C number before you today and, of course, I didn't table it as a separate exhibit, but attached to that on the next page is a letter to the industrial registrar which goes to once again referring to section 33B(1) and seeking to make an application as a party to the relevant dispute here and at that time and since then, there has been agreement in principle on the ASU becoming a party to the Foxtel Award and, of course, that award is AW781323. Commissioner, I have sent an electronic copy of the ASUs preferred draft order. I will come to where there are differences with the employer's preferred draft order. If I may table as an exhibit the ASUs preferred draft. It is one, as I said, we have electronically sent on to your Associate earlier today.

EXHIBIT #A2 COPY DRAFT ORDER

PN2931

MR NUCIFORA: Thanks, Commissioner. In A2 we do refer to the appropriate C number at the top for this matter and that is C2003/1938 and, of course, the original dispute finding and the appropriate award, the Foxtel Award 1999 and in the draft order once again, as in the previous matter, we refer to a decision that you might make in relation to this, whether it be on transcript or otherwise, but similar to the last matter and then we refer to variations to clause 4 and once again we have sought to ensure that we have only made - went to a minimalist approach, if you like, and sought not to make too much change to this particular award.

PN2932

Having said that, we follow the formatting that was there in terms of the parties bound. We refer to each of the Foxtel and Customer Service employers as per the dispute finding and, of course, the MEAA is mentioned there as it is. The original 4.1.3 in the award actually was we might argue a contentious award provision, something that was mentioned in passing by the Full Bench. It gave exclusivity to the MEAA and we have left that out and we have now changed that to read - we have dropped that and referred in 4.1.3, the ASU and referred to that as the union.

PN2933

Now, we have done that because there is constant reference to the union throughout the whole award and it wasn't the intention of the ASU to give us any special status in award terms and the MEAA has - it just seemed to be the simplest way to deal with that and, of course, at the end, 4.1.4 is what it currently is in the award. Commissioner, the employer - sorry, just to go back a bit, the consent arrangement arose out of a heads of agreement that was reached between the Victorian branch of our union and Foxtel and Customer Services Pty Limited and we didn't believe that this draft order went - was contrary to that, but, of course, the employers are seeking to make some amendments to the draft order that we have put to you that go to that. Commissioner, what I would say is that that particular draft order was in the correspondence that we sent to Mr Warren again. If I may table that again as another exhibit in this matter. In fact, if I may table that letter to Mr Warren as an exhibit in this matter.

PN2934

THE COMMISSIONER: Is that attached to - do I have a copy of that?

PN2935

MR NUCIFORA: There is a copy in the other C number. I am just wondering if I have got enough copies. I have got one here, but this is the letter once again to Mr Warren.

PN2936

THE COMMISSIONER: I am sorry.

PN2937

MR NUCIFORA: It is in the other C number and I just wonder whether we should table it as - - -

PN2938

THE COMMISSIONER: We will mark that as a separate exhibit and we will tidy up the file after the hearing. It is the letter dated 5 May?

PN2939

MR NUCIFORA: That is it, Commissioner.

PN2940

THE COMMISSIONER: I will mark that as a separate exhibit in these matters.

EXHIBIT #A3 LETTER TO MR WARREN

PN2941

MR NUCIFORA: Thank you, Commissioner. In A3, it is correspondence by way of notification to Mr Warren that goes to the variation to the Foxtel Award and to provide notification to him about the hearing today and, of course, the draft order that we have already tabled as an exhibit in A2. Now, in response to that, we have the correspondence back from Mr Warren dated 6 May. If I may table that as the next exhibit here in this matter, but I apologise, Commissioner, I thought I had an extra copy for that, but that is the 6 May letter in response, confirming the MEAAs consent and authorising the ASU to act on their behalf.

PN2942

THE COMMISSIONER: I think that was N3 in the other matter.

PN2943

MR NUCIFORA: That was N3, Commissioner.

EXHIBIT #A4 LETTER DATED 6 MAY 2003

PN2944

MR NUCIFORA: And in that, of course, Mr Warren responds to the ASU letter in A3 and indicates that they consent to both application and the draft orders contained within to vary the Foxtel and the Austar Awards and, of course, the ASU was given authorisation to act on behalf of the Alliance today. Now, that is how things stand in terms of the ASUs position. I can indicate that there was consent in principle for the ASU to become a party to the Foxtel Award.

PN2945

As of today, I have spoken to Mr Brown and there is specific concerns about how far that coverage ought be. Now, I will allow Mr Brown to go to that. What I would indicate is that it may be that there needs to be further discussions about the specific detail in the draft order as it relates to Foxtel and Customer Services Pty Limited and it may be - I mean, all the parties are here and Ms McPhee is here and I understand she has the authority to resolve these matters. I am in a position now, I am unable to catch the organiser involved today.

PN2946

I have spoken to the branch secretary involved in that particular branch to ensure that neither party is agreeing to a draft order that might be contrary to the heads of agreement. There is heads of agreement between both our unions. We would say that our draft order ought not go further than the dispute finding. It is only in relation to those areas of employment that we say that the union's eligibility rules cover, that is clerical employees and call centre employees. However, maybe over the next seven days we could sit down with the company and see if we can deal with where there is concern in particular about the Foxtel side of it.

PN2947

Now, we are not talking about from our union's point of view any coverage of the MEAA in terms of production employees and purely entertainment employees. We are really talking about clerical, admin and call centre employees. I will let Mr Brown go to that and I think that in the draft order before you in A2, that that at this point represents the ASUs position and it really is a drafting issue. I mean, it is not a cosmetic issue. It is a substantive and not an insignificant issue and therefore it may not have been something that we could have fixed up today, unfortunately.

PN2948

THE COMMISSIONER: Perhaps if we hear from Mr Brown. We will see where we go.

PN2949

MR NUCIFORA: Thank you, Commissioner.

PN2950

MR BROWN: Yes, and to facilitate that, Commissioner, if I could hand up how my clients see the world.

PN2951

THE COMMISSIONER: That will be an interesting document.

PN2952

MR BROWN: It could be very long or it could be very short.

EXHIBIT #B1 OUTLINE OF SUBMISSIONS

PN2953

MR BROWN: We will start with the good news and that is that there are essentially four parties here. There is the Media, Entertainment and Arts Alliance who hold the ground at the moment as it would appear. There is the Australian Services Union which by virtue of the Full Bench decision have a right to be considered and you have two companies, Foxtel and you have Customer Services. Let us call them the Foxtel companies.

PN2954

My friend has alluded to a memorandum of understanding between the Foxtel companies and the Australian Services Union and what is agreed between all of the parties is that there should be some variation to the award in a manner which picks up the Full Bench decision and is, more importantly, consistent with the matters agreed between in particular the Australian Services Union and the Foxtel companies.

PN2955

Now, the only material amendment between B1 and A2 is the provided that clause, which when I read from it:

PN2956

Provided that the Australian Municipal, Administrative, Clerical and Services Union shall only be entitled to represent the industrial interests of employees of Customer Services Pty Limited engaged in any of the classifications in schedule A who fall within the eligibility rules of -

PN2957

for want of a better word, the ASU. The only material difference is that B1 attempts to be more prescriptive and we say deals with a very fundamental issue and it may even be the cause of all of this, that for whatever reason, the Media, Entertainment and Arts Alliance obtained an award here which was extremely broad. My clients don't want a situation where going forward we have some confusion between the roles of the two unions, who they represent and in which situation, which union applies.

PN2958

Now, rather than that being the hue and cry, Commissioner, we have actually sat down with the ASU and we have mapped that out, so in terms of today, we have had some good discussions with my friend. Mr Warren is in the dark and I understand that a Ms Cargill who is the organiser - I might stand corrected - needs to be involved. We think it is a seven-day keep talking issue. We won't bore you with the details of that today, but the bottom line is A2 is not agreed, B1 is not agreed and we would hope to bring something back before the Commission at your convenience with one caveat which I am sure my friend will take you to once we get our diaries out. If the Commission pleases.

PN2959

THE COMMISSIONER: Yes.

PN2960

MR NUCIFORA: Commissioner, there is another change in exhibit B1 which we would agree to and that is, in 4.1.2, the drafting is a lot better on the reference to the union and we accept that.

PN2961

THE COMMISSIONER: Yes, it means both. I was going to ask you about that.

PN2962

MR NUCIFORA: Yes.

PN2963

THE COMMISSIONER: It means references through the award to the union and it means either union, depending on where people are working and under what classifications.

PN2964

MR BROWN: Yes, but the stream can't rise above the source.

PN2965

THE COMMISSIONER: Sure.

PN2966

MR BROWN: The union has to be the union with coverage.

PN2967

THE COMMISSIONER: Absolutely.

PN2968

MR BROWN: Thank you.

PN2969

MR NUCIFORA: And I would have to say, Commissioner, we agree with that. It has to be the union with coverage.

PN2970

THE COMMISSIONER: So it is really only the provision that is attached to clause 4 where there is some debate. What is being put is if you can have a week, hopefully you can sort that out and present a draft order which would reflect the agreed position of the parties and, look, I am happy for that to occur. That makes sense. Considering the length of time this has taken from when the ball was bounced to where we are now, we had better get the last step right in relation to all of this and ideally have it agreed. I wouldn't see any need to re-list the matter.

PN2971

If an agreed draft order is presented by the parties, that is fine. In terms of other criteria that is necessary for the order to be made, I am satisfied that pursuant to the relevant sections of the Act, that criteria has been met and if there is an agreed order, it will issue once it is presented. The only other thing I would suggest is that whereas the order in the previous matter was to be operative from today's date, do you both have a view about the operative date?

PN2972

MR BROWN: I have a natural aversion to retrospective operation. I would be of the school of first full pay period from the date of making.

PN2973

THE COMMISSIONER: The date the order is issued?

PN2974

MR BROWN: Correct.

PN2975

THE COMMISSIONER: Yes. You are comfortable with that?

PN2976

MR NUCIFORA: Yes, Commissioner, with the proviso that it doesn't run more than seven days and that we might - - -

PN2977

THE COMMISSIONER: No, I am saying I will give you seven days to sort something out.

PN2978

MR NUCIFORA: Yes, Commissioner.

PN2979

THE COMMISSIONER: In the event that I didn't hear anything from you, then I would probably look at re-listing it to hear from you, but I expect that you will reach agreement about this. We are not climbing Mount Everest here and you are not really all that far apart from what I am sure is the intent of all the parties, so I would simply, as I say, once I have got that, I will issue the order in the terms sought by the parties and indicate that it will be operative from the date of the first pay period on or after the date of the order.

PN2980

MR BROWN: If the Commission pleases.

PN2981

THE COMMISSIONER: That is all?

PN2982

MR NUCIFORA: Yes.

PN2983

THE COMMISSIONER: The Commission stands adjourned.

ADJOURNED INDEFINITELY [2.34pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #N1 COPY DRAFT ORDER PN2911
EXHIBIT #N2 LETTER TO C. WARREN PN2914
EXHIBIT #N3 LETTER FROM MEAA DATED 06/05/2003 PN2916
EXHIBIT #A1 LETTER TO MS McPHEE PN2930
EXHIBIT #A2 COPY DRAFT ORDER PN2931
EXHIBIT #A3 LETTER TO MR WARREN PN2941
EXHIBIT #A4 LETTER DATED 6 MAY 2003 PN2944
EXHIBIT #B1 OUTLINE OF SUBMISSIONS PN2953