C2003/3731, Transcript of Proceedings [2003] AIRCTrans 2285 (12 June 2003)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER REDMOND

C2003/3731

APPLICATION FOR AN ORDER TO STOP
OR PREVENT INDUSTRIAL ACTION

Application under section 127(2) of the Act
by A. Goninan & Co Limited (Maintrain) for
an order to stop or prevent industrial action

SYDNEY

2.05 PM, THURSDAY, 22 MAY 2003

PN1

THE COMMISSIONER: Appearances, please?

PN2

MR D. RUSSELL: If it pleases the Commission, I am from the Australian Industry Group appearing on behalf of A. Goninan and Co Limited and their Maintrain premises. With me are MR C. EDWARDS who is the HR Manager at the site and MR K. MYLES who is the General Manager at the site.

PN3

MR I. MORRISON: If it pleases the Commission, I appear on behalf of the Australian Manufacturing Workers Union in this matter and with me today is MR D. HENRY, the organiser from the site, and MR M. PEARCE, the delegate from the site.

PN4

THE COMMISSIONER: Thank you. Yes, Mr Russell.

PN5

MR RUSSELL: Thank you, Commissioner. This is an application pursuant to section 127 of the Act seeking an order to stop industrial action in the form of a ban that is currently occurring at A. Goninan and Co Limited's Maintrain site at Manchester Road, Auburn. Commissioner, I intend to break my submission into three parts today: firstly, a short opening statement to indicate to the Commission what we are seeking and why we say the Commission can do it, then I am going to be seeking to call witness evidence regarding the impact of the industrial action and finally I will make more detailed submissions if necessary on why the Commission should grant the order and the form of the orders sought.

PN6

Commissioner, the employees involved in the dispute are covered by the Metal Engineering and Associated Industries Award 1988 and the A.Goninan and Co Limited Maintrain (Enterprise Bargaining) Certified Agreement 2001-2003. This agreement expired on 31 March 2003, it has not been rescinded pursuant to section 170MA but negotiations have commenced for a new agreement. They commenced, I understand, on 4 March 2003.

PN7

Industrial action in the form of a ban commenced at 7.00 am on Wednesday, 21 May. This ban has changed at least once since being implemented. I understand it was initially a ban on a piece of machinery called the Western Traverser, which essentially moves bogies and wheels from track to track. I understand that was lifted at 12.30 on Wednesday, yesterday, and a ban has been placed on 7 tonne 10 tonne forklifts and the tractor. I seek to hand up a number of documents that will assist the Commission to understand our submission in this dispute. I will hand up all four at once, Commissioner.

PN8

THE COMMISSIONER: Thank you.

PN9

MR RUSSELL: Commissioner, the first one is a notice pursuant to section 170MI of the Act from the AMWU to Maintrain seeking to initiate a bargaining period.

PN10

THE COMMISSIONER: Dated 15 May?

PN11

MR RUSSELL: That one is dated 26 February, Commissioner.

PN12

THE COMMISSIONER: Yes, I have that.

PN13

MR RUSSELL: I seek that to be marked.

PN14

THE COMMISSIONER: I will mark it exhibit R1.

EXHIBIT #R1 NOTICE FROM AMWU TO MAINTRAIN SEEKING TO INITIATE A BARGAINING PERIOD

PN15

MR RUSSELL: The second document should be a notice of intended industrial action from the AMWU dated 15 May.

EXHIBIT #R2 NOTICE FROM AMWU OF INTENDED INDUSTRIAL ACTION

PN16

The other two documents, one is a copy of the existing agreement so it probably doesn't need to be marked and the fourth one is a copy of a decision by Senior Deputy President, Carlton and United Breweries v CFMEU which I will refer to later on in my submissions. That decision probably doesn't need to be marked.

PN17

Commissioner, essentially in my opening remarks I want to make two points as to why the current industrial action is protected. The first one is that the AMWU through its members and its delegates on the site have not genuinely tried to seek an agreement with the employer. Section 170MP of the Act states quite clearly:

PN18

Engaging in industrial action by a person who is a member of an organisation of employees, that is a negotiating party, is not protected action unless the organisation has before the person begins to engage in the industrial action (a) genuinely tried to reach an agreement with the employer and (b) if the Commission has made an order in relation to the negotiations complied with the order in so far as it applies to the organisation.

PN19

Commissioner, we are going to attempt to persuade you today that they have not genuinely tried to seek an agreement with the employer. We would be seeking to give witness evidence as to why that is the case. The second issue is that the notice of the protected action is inherently deficient. The notice specifies an indefinite ban on all work covered by Part III of the Metal Engineering and Associated Industries Award.

PN20

If I could take the Commission to the enterprise agreement that I handed up, the existing enterprise agreement, particularly to clause 3 of the agreement, it says:

PN21

This agreement shall apply at the Maintrain facility to all employees who are bound by the terms of the Metal Engineering and Associated Industries Award 1998, Parts I, II and V in so far as those provisions relate to the parties referred to in Part IV, parties bound by this agreement.

PN22

Further in clause 6 it talks about the relationship this agreement has to this award and it says in 6.1:

PN23

This agreement shall be read wholly in conjunction with the Metal Engineering and Associated Industries Award 1998, Parts I, II and V.

PN24

Then it goes on to talk about a number of other provisions, about what should happen in the event of an inconsistency.

PN25

THE COMMISSIONER: I haven't read the agreement, Mr Russell, but it is your argument that nowhere in this agreement this Part III the Metal Industry Award appears.

PN26

MR RUSSELL: That is correct, Commissioner, and the significance at that point is that in the understanding of both the company and the AMWU as the only union party to this agreement is that all the work at the Maintrain site since it was commissioned in 1993, with the exception of the managerial and the administrative functions, have always been covered by this agreement. If so, then it logically follows that all work performed on the site outside the managerial and administrative functions must be covered by the scope of this agreement and therefore the application of that agreement would be read so that that work is covered by it.

PN27

The notice that we have in exhibit R2 actually says that they are going to place a ban on work that is covered by Part III. This leads us to the question, have they actually banned any work at all and if so, how can we respond with any precision to the notification of the ban. Commissioner, that is our second argument about why we say this notice is deficient and why the action is prima facie unprotected.

PN28

Commissioner, I will leave my opening remarks here, there is evidence that we wish to adduce on this particular matter and we can talk further about our two points as to why we say that the action protected and after that evidence I would be prepared to make more detailed submissions about the two points I have raised and the form of the orders sought and also the questions about the Commission's jurisdiction and to grant 127 orders that need to be covered in such applications. I think it might be appropriate to hear a response from the union to the opening remarks before we continue down that path, if it pleases.

PN29

THE COMMISSIONER: Thank you. Yes, Mr Morrison.

PN30

MR MORRISON: Commissioner, we would of course be opposing the applications before you. We say that we did put in that exhibit R2 covering specifically Part III of the award and this will become a very important issue, we did that out of abundant caution because historically the work that is covered by Part III of the award has been performed at the site, and we acknowledge that it is not covered by the instrument of employment that exists at the site.

PN31

However, we did that rather than just deny doing work for which there appears to be no arrangements if you like for us to perform. We are aware of several decisions of this Commission with regard to custom and practice that exists at a work site, especially decisions we are aware of where if work has continued over a series of enterprise agreements even though it is unstated because of its continuation custom and practice it is to all intents and purposes a condition of employment. Based on that caution, we unilaterally decided, well, we just won't do anything that is covered by Part III because it doesn't exist in our instrument of employment. Our members determined for safety's sake to forward the notice of intended industrial action listed as exhibit R2.

PN32

THE COMMISSIONER: If I read that as it is written, it reads to me that that is the only area you are going to put bans on, that work covered by Part III of the award.

PN33

MR MORRISON: Yes, and we could have, Commissioner, if we had chosen, simply not performed that work because it is not covered in our instrument of employment but bearing in mind many decisions of this Commission, for the sake of certainty chose to put in this notice. If it doesn't exist in the employment contract, the company seems to be saying, well, they didn't need to put in the notice of intended industrial action, they could have simply just not done it, because there is no capacity to perform that work but, as I said, for abundant caution we chose to put in the notice of intended industrial action.

PN34

Apart from that, Commissioner, we are also very confused with the documents we have received from the employer regarding the grounds on which their application is made, so I won't at this moment make any further submissions except to say that what we would like is an opportunity perhaps off the record, with the company's agreement of course, to at least be aware of what the issues are so that we can perhaps prepare our arguments. At this moment in time I have to say that our side of the bench is very confused as to what the issues are.

PN35

THE COMMISSIONER: All parties might be confused, Mr Morrison. Thank you. Yes, Mr Russell.

PN36

MR RUSSELL: Commissioner, I could probably see some facility in a conference, I am not sure in defining the issues that my friend has spoken about will necessarily lead the parties to a good outcome of that conference but I would certainly be willing to talk about some of the substantive issues where negotiations have gone off the track and things like that, but I think our position is pretty clear that I have articulated in my statements. We say that the action that has been taken is unprotected for two reasons.

PN37

The first reason, we say that the union and the employees and the delegates have not made sufficient efforts to genuinely reach an agreement with the employer in the negotiations thus far. I haven't led any evidence on that, that would be a matter for witness evidence at a later time. The second proposition is one of fact which says exhibit R2 must be inherently deficient because it is saying that it's banning work. Up until we received this notification we were never aware that that sort of work occurred on that site.

PN38

There would be an easy way for the union to remedy that, I am not going to tell them what it is, that's for them to work out, Commissioner, but if they had simply put appropriate wording in place I am sure they could have got around that issue. Nevertheless, what this goes to, one of the tests that I was going to allude to later in submissions, when the courts have looked at the question of imprecise notifications they look at whether the employer has been able to take appropriate defensive action as a result of the notification they received.

PN39

One of the things we would seek to adduce out of evidence is that the employer with this notice has been unable to do that and as a result it is deficient, therefore the action is unprotected and therefore we would be arguing for the Commission to exercise its discretion, for orders to be issued. As I said, I do not object to going into conference as I see some utility in clarifying the issues between the parties but in terms about position, about why we are seeking this order, I think it is crystal clear and I have just reiterated those, if it pleases.

PN40

THE COMMISSIONER: Thank you, Mr Russell. I think rather than hearing formal evidence in respect of this matter at this stage I will proceed to go into conference with the parties to see if I can assist the parties and then at the conclusion of that conference we may put something on the record or there may be no need to go ahead with that evidence.

OFF THE RECORD [2.20pm]

RESUMES [3.20pm]

PN41

THE COMMISSIONER: We have been in private conference and I understand the parties have reached an understanding and wish to read it on the transcript. Yes, Mr Russell.

PN42

MR RUSSELL: Thank you, Commissioner. The statement is as follows. The parties agree that:

PN43

(1) All industrial action including bans and limitations will cease from 7.00 am on Friday, 23 May 2003.

PN44

(2) They will exchange their top five priority items for negotiation in writing by close of business on Wednesday, 28 May 2003.

PN45

(3) A meeting will take place as soon as practicable following the exchange of the documents. The agenda for this meeting will be as follows:

PN46

(i) wages;

PN47

(ii) the top five items from the union;

PN48

(iii) the top five items from the company.

PN49

The meeting will be attended by a full-time official of the union and the negotiation committee.

PN50

(4) A report back hearing will be scheduled at a time convenient to the Commission and the parties following that meeting.

PN51

That ends the statement, Commissioner, and I understand it is agreed, if it pleases.

PN52

THE COMMISSIONER: Mr Morrison, is that agreeable to the union?

PN53

MR MORRISON: Yes, the AMWU supports that statement, Commissioner.

PN54

MR RUSSELL: Commissioner, we don't seek to press our application for orders at this stage but we would appreciate it if the Commission could keep the file open subject to the process that has been agreed today.

PN55

THE COMMISSIONER: Yes, I will keep the file open because it will do as a vehicle to have the report back conference, even though it will appear as a 127 orders application it will simply be a report back and I will list that when the parties contact me after that meeting if they require my services. The Commission stands adjourned.

ADJOURNED ACCORDINGLY [3.25pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #R1 NOTICE FROM AMWU TO MAINTRAIN SEEKING TO INITIATE A BARGAINING PERIOD PN15
EXHIBIT #R2 NOTICE FROM AMWU OF INTENDED INDUSTRIAL ACTION PN16