C2003/2390, Transcript of Proceedings [2003] AIRCTrans 2340 (13 June 2003)

AUSCRIPT PTY LTD
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TRANSCRIPT OF PROCEEDINGS


O/N 2924

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER MANSFIELD

C2003/2390

CPSU, THE COMMUNITY AND PUBLIC
SECTOR UNION

and

AUSTRALIAN CENTRE FOR THE
MOVING IMAGE

Notification pursuant to section 99 of the Act
of a dispute re an alleged refusal to consult
on a restructure

MELBOURNE

11.33 AM, WEDNESDAY, 28 MAY 2003

PN1

MS D. HILL: I appear on behalf of the CPSU with MS G. UNDERWOOD and MS R. KENDALL.

PN2

MR D. McLAUGHLIN: I seek leave to appear for the Australian Centre for the Moving Image with MS J. RILEY, the Human Resources Manager for the organisation.

PN3

THE COMMISSIONER: Ms Hill, this is your notification, perhaps you would like to outline where it is at this stage.

PN4

MR HILL: Surely, but before I do that, Commissioner, I would like to oppose the appearance of counsel today in accordance with section 42 of the Act, on the basis that the matters before us today are not technical. They shouldn't go to matters of jurisdiction. We clearly have an enterprise agreement with ACMI and the HR Director is here today which we think is appropriate, given the circumstances of the actual dispute. We don't believe that the use of counsel today would be useful to resolving this matter.

PN5

There is a fair bit of pressure on us to get this matter resolved, and resolved in a conciliatory way today because there is impending industrial action at ACMI. So they are the reasons why we believe that counsel shouldn't be appearing today.

PN6

THE COMMISSIONER: Good. Mr McLaughlin.

PN7

MR McLAUGHLIN: Yes, Commissioner. The reason I seek leave today is - well, there are a number of reasons. Firstly, I am a solicitor, not a barrister.

PN8

THE COMMISSIONER: You are legally qualified though, Mr McLaughlin.

PN9

MR McLAUGHLIN: I am indeed legally qualified but I just did want to point out that I am - - -

PN10

THE COMMISSIONER: You are not an employee of the Centre for the Moving Image I assume?

PN11

MR McLAUGHLIN: No, no, I am a solicitor employed by Deacons.

PN12

THE COMMISSIONER: And the Centre for the Moving Image has asked you to appear on its behalf and represent it?

PN13

MR McLAUGHLIN: They have, Commissioner.

PN14

THE COMMISSIONER: Yes.

PN15

MR McLAUGHLIN: Ms Riley is the Human Resources Manager for the company; she has not appeared in the Commission in formal hearings. She has appeared in conciliation but has not represented the company in formal hearing. She is not an industrial advocate and does not profess to be. So to that extent if the organisation was not able to have my representation today the organisation would be seriously disadvantaged in terms of competency at the bar table, given that Ms Hill is obviously a very experienced practitioner and a very competent advocate. That is the first point.

PN16

The second point, Commissioner, is that the dispute notification itself, and I think Ms Hill has confirmed this, suggests that there is in fact a refusal to consent which would be a breach of the certified agreement. Now, that allegation is a serious allegation as far as the organisation is concerned. It is one that it would seek to vigorously defend, both in this tribunal, and indeed, obviously that could have implications in another place, and that is why the organisation would seek the representation that it seeks today.

PN17

The third issue - and again, it is one that Ms Hill has raised - is the fact that there apparently is industrial action being contemplated, depending on the outcome of today's proceedings. If I could just hand up two documents to you which, obviously, because I am seeking leave to - - -

PN18

THE COMMISSIONER: Mr McLaughlin, at this stage I will simply note those documents rather than anything else. You are arguing that you should be given right to appear on behalf of the company.

PN19

MR McLAUGHLIN: I understand that, Commissioner.

PN20

THE COMMISSIONER: Yes.

PN21

MR McLAUGHLIN: I don't seek to have them marked as exhibits. But the two documents - the first one is a notice of intended industrial action under section 170MO and the second is the company's response which has been faxed off to the union this morning. Now, the notice is a notice of industrial action under section 170MO which is in relation to enterprise bargaining, and it is indicating that there will be industrial action from Friday at 10 am and that industrial action will include a stopwork meeting. We have had information last night, and I think it has been confirmed today, that in fact the industrial action being talked about is industrial action which is directly related to this matter and not the enterprise bargaining.

PN22

On that very basis alone the action is not protected and we have pointed out there are other reasons why the action is not protected. But given that industrial action is being contemplated as a result of the outcome of today's proceedings, again, that is a reason why the organisation should be entitled to have the representation that it seeks today. If the Commission pleases.

PN23

THE COMMISSIONER: Thank you, Mr McLaughlin. Ms Hill.

PN24

MR HILL: Just in reply, the CPSU is well aware of its legal obligations in terms of industrial action. A meeting is being proposed but it will depend on how conciliatory ACMI can be today as to whether these sorts of meetings and - - -

PN25

THE COMMISSIONER: Or how reasonable the CPSU is, Ms Hill.

PN26

MR HILL: Yes, exactly. And at the end of the day whilst it is very nice to hear Mr McLaughlin espouse my expertise and knowledge - I should put him as referee on my CV - but at the end of the day I don't believe that is going to be necessary here today. Ms Riley has been an employee for a very long time. She knows the enterprise agreement. She has been a part of the negotiations of the enterprise agreement and has her name on every matter that ends up back in this Commission. So I think she is fully aware and is fully conversant with the rules of the Commission and with trying to resolve this dispute.

PN27

Now, to me it is very clear - it is very clear. It is about a clause in the agreement, it is about whether they have complied or not and where we might go from there.

PN28

THE COMMISSIONER: Yes. Thanks, Ms Hill. Mr McLaughlin, I have heard your submissions - please sit down - I have heard your submissions. I agree with the argument put by Ms Hill. This is not a complex matter. You are quite welcome to stay with Ms Riley and give her advice on this matter. I am not proposing to have extensive, or even any submissions from the parties on the record. What I am proposing to do very quickly is to go into a conference off the record and I am quite sure Ms Riley, whom I have met before, is quite competent to handle those sorts of matters and so I propose to not give leave for you to appear on behalf of the Centre for the Moving Image on this occasion.

PN29

Bearing in mind particularly the nature of the dispute and the relatively straightforward arguments I think both parties should be able to put on whether or not the enterprise agreement provisions in regard to consultation have been met. I think that is a large part of what we are here to talk about today. So, Mr Mclaughlin, I refuse leave to appear but make it clear to you that you are welcome to stay and provide advice to Ms Riley as appropriate.

PN30

MR McLAUGHLIN: Thank you, Commissioner.

PN31

THE COMMISSIONER: Now, do parties want to put a very brief outline on the record at this stage, or would you be happy to go into conference at this point?

PN32

MR HILL: We are in your hands, Commissioner. I think we provided the Commission with our application with a fairly detailed history of this dispute.

PN33

THE COMMISSIONER: Yes, I have received that and read it.

PN34

MR HILL: And I do have documents to hand up if necessary. But, look, if it is useful to getting a speedy resolution then we are more than happy to go into private conference.

PN35

THE COMMISSIONER: I think we will go straight into private conference to discuss the matter and if necessary we will go back on the record.

OFF THE RECORD

PN36

THE COMMISSIONER: This matter is now back on the record and there have been extensive discussions between the parties involving the Commission and agreement has been reached that a period of further consultation will occur between the Centre for the Moving Image and the representatives of employees as provided for in the relevant enterprise agreement. That period of further discussion will occur until Friday, 13 June and should there be no proposal which would enable the further employment of Ms Kendall with the Centre for the Moving Image to be resolved by 13 June, the three month period relating to Ms Kendall's employment will date from that day.

PN37

The parties will meet as soon as practicable after today's date to commence the discussions. Those discussions should be undertaken in a normal professional way by both sides and hopefully they will lead to a resolution of this matter. I have made some observations to the parties as to how these reorganisation proposals and restructuring proposals should be undertaken in the future consistent with clause 14 of the enterprise agreement, and I have made the observation that neither the employer nor the representatives of employees on this occasion has responded to clause 14 in a way that I believe it should be in the future.

PN38

Finally, I just wanted to say that I understand that the members of the CPSU at the Centre for the Moving Image are having a meeting in the next couple of days to consider industrial action and I would expect that this agreement that has been reached between the parties will avoid the need for any industrial action affecting the services for the - from the Centre for the Moving Image at this time. Now, I will just ask either of the parties if they wish to make any statement on the record?

PN39

MR HILL: Commissioner, clearly we recommend that no industrial action be undertaken, although we can only recommend those things. Obviously, we would be strongly speaking.

PN40

THE COMMISSIONER: I am sure you will be very persuasive, Ms Hill. Ms Riley, any comment from your side at this stage?

PN41

MS RILEY: No.

PN42

THE COMMISSIONER: Good. Well, I look forward to a report back at some future time that this matter has been resolved. I certainly hope that is the case. We will keep the file open and if the expectations from this agreement are not met in terms of proper consultation being undertaken the parties are welcome to renotify the Commission and have the matter listed again. This matter is now adjourned.

ADJOURNED INDEFINITELY [1.16pm]