C2003/1791, Transcript of Proceedings [2003] AIRCTrans 2489 (17 June 2003)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 7, ANZ House 13 Grenfell St ADELAIDE SA 5000
Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT O'CALLAGHAN

C2003/1791

COMMUNICATIONS, ELECTRICAL, ELECTRONIC,
ENERGY, INFORMATION, POSTAL, PLUMBING
AND ALLIED SERVICES UNION OF AUSTRALIA

and

NILSEN ELECTRIC (SA) PTY LIMITED

Application pursuant to section 99 of the Act
of an industrial dispute re alleged failure to
allow the Union to meet and confer pursuant to
section 170LK(5) and failure by the company to
abide to section 170LK(4)

ADELAIDE

8.33 AM, MONDAY, 2 JUNE 2003

PN1

THE SENIOR DEPUTY PRESIDENT: Good morning, can I have some appearances please?

PN2

MR W. DEAKIN: Yes, sir, if the Commissioner pleases, I appear on behalf of the CEPU Electrical Division, with me I have Mr J. WILDER.

PN3

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Deakin.

PN4

MR B. DUGGAN: If the Commission pleases, for the respondent in relation to this matter. I appear with Mr MOORE. I seek leave to appear in relation to this matter.

PN5

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Duggan. Mr Deakin, what is your view relative to the application by Mr Duggan for leave to appear?

PN6

MR DEAKIN: We would oppose that appearance, sir.

PN7

THE SENIOR DEPUTY PRESIDENT: Very well, Mr Duggan you will need to substantiate your position for me.

PN8

MR DUGGAN: Sir, in relation to this matter there is an allegation that there has been a breach of the Act and in those circumstances the respondent seeks legal representation to be represented here this morning.

PN9

THE SENIOR DEPUTY PRESIDENT: Mr Deakin, do you want to say anything about Mr Duggan's submission?

PN10

MR DEAKIN: Yes, sir, we do believe there is a breach of the Act and unless - - -

PN11

THE SENIOR DEPUTY PRESIDENT: You see, what I am dealing with at this stage is simply a request by Mr Duggan to seek leave to appear. Mr Duggan is arguing, if I understand him correctly, that his client requires him to represent them on the basis that there has been a breach of the Act and hence I presume that his knowledge or expertise would be required pursuant to section 42(3)(c) of the Act. I'm inviting you to comment on that issue.

PN12

MR DEAKIN: Well, our position on that, sir, is that Mr Larry Moore who is the State Secretary of the organisation who has those skills himself. It would be very strange for Mr Moore not to be standing up and arguing that because he is always quoting the regulations to us anyhow, sir. So I would see Mr Moore as their representative, their normal representative and why we would need the assistance, or he would need the assistance of a lawyer is beyond me.

PN13

THE SENIOR DEPUTY PRESIDENT: Yes, well, you see, I am somewhat at a disadvantage in that there might be more to this matter than I am aware of. I'm going to grant leave to Mr Duggan pursuant to section 42(3)(c) but in doing so I make two comments. First of all, I would not expect Mr Duggan to be involved in discussions should they be a consequence of this hearing where those discussions are directed at agreeing an outcome between the parties and secondly, if at any point in these proceedings you, Mr Deakin, believed that it would be appropriate for the CEPU to access legal expertise then I would indicate at the outset that I would be very happy to adjourn the proceedings so as to allow you that opportunity. On that basis, I grant leave Mr Duggan.

PN14

MR DUGGAN: Thank you, sir.

PN15

THE SENIOR DEPUTY PRESIDENT: Now, Mr Deakin, I need to advise particularly the employer that this matter was listed subsequent to a telephone discussion that I had with you on last Friday afternoon. In that discussion I advised that would list a matter should an application be made pursuant to any one of a number sections of the Act with some urgency. I then received a request from Vice President Ross' chambers on Friday afternoon which I understood to be a request from you that the matter be listed on Friday afternoon, it wasn't practicable to do so. I have listed the matter this morning, so perhaps you ought to tell me what the problem is?

PN16

MR DEAKIN: Sir, maybe in doing so we would probably require to amend the application from a section 99 to a section 170LW because there will probably be orders that we would be seeking from you, sir, and under a section 99 I could honestly believe that Mr Moore and Mr Duggan would be opposing any orders coming out of a section 99.

PN17

THE SENIOR DEPUTY PRESIDENT: Well, I'm very much handicapped at this stage. I don't know in any detail what the issue is. I'm happy to ask the employer at this stage whether there is an objection to the application being amended. I would note it is a reasonably fundamental amendment that is being sought but I'm happy to seek that there would be such an amendment but it might be best if you gave me a little more background in terms of the matter first of all.

PN18

MR DEAKIN: Okay, sir, rather than go back into this issue, because if I need to do so we can do it another date and present the case properly in its full - - -

PN19

THE SENIOR DEPUTY PRESIDENT: Glory, is that the word you are looking for?

PN20

MR DEAKIN: - - - glory, sir, yes. At this point in time, just getting back to the Friday issue is that there is during the last recent negotiations we had an agreed outcome with the employer and as of Monday evening or Monday morning the employer - - -

PN21

THE SENIOR DEPUTY PRESIDENT: This is this Monday, or the last Monday?

PN22

MR DEAKIN: Last Monday, the employer chose - after all the employees had agreed on an outcome and stopped their industrial action the employer decided it was going to change that agreement and include a couple of matters which we could not and would not agree to. We had a further meeting on Monday evening up until around about 8 o'clock, from about 5.30 until 8 o'clock. Again, on other matters that both parties hadn't agreed to, but however at that meeting Mr Hodby continued to require - - -

PN23

THE SENIOR DEPUTY PRESIDENT: Who is he? Mr Deakin, you may well be absolutely emersed in this matter. You need to work from the premise that I am not.

PN24

MR DEAKIN: Okay, sir.

PN25

THE SENIOR DEPUTY PRESIDENT: You need to tell me who you are talking about, I don't know who Mr Hodby is?

PN26

MR DEAKIN: All right, Mr Hodby is the Manager of Nilsen's Electrical Contracting Division and is one of the major negotiators for the working party for the electrical contracting industry. Mr Hodby, the Contract Manager, chose to include two major alterations to the agreed document on certain issues. What happened? We refused to discuss those because we had no authorisation to do so from, one, a mass meeting of members who lifted all their industrial action on their agreed position and we had no authorisation from anyone else including the Nilsen's employees.

PN27

We found out that Mr Hodby tried to ring me a couple of times to discuss these changes that he wanted into the document which I refused to answer because we told him: we are not going to talk about those changes that you are now talking about which he bargaining in - which also means you are bargaining in bad faith. We then was notified by our members that the company called for a meeting to discuss the enterprise agreement at Friday afternoon from 1.30 to 3.30. We notified the employer the day before, 24 hours earlier, that we would be attending that meeting, we would like to attend that meeting, we have been instructed by our members that they wanted us there.

PN28

Mr Hodby rang back and said, "No, under the right of entry we don't agree. That is - your 24 hours notice under right of entry had nothing to do with the enterprise agreement and they had legal advice on that." We notified them that we were parties to the document and we have been asked to, by the members, to be there to represent them. When we turned up at the site, at the company, the company decided that they weren't going to let us in to represent the people.

PN29

THE SENIOR DEPUTY PRESIDENT: That they were going to or weren't to?

PN30

MR DEAKIN: They were not going to. They was adamant that they weren't going to let us in. The workers started to work out of the meeting to come and talk to us, then the management turned them around and ordered them back into the workshop stating that: we pay for this meeting you will go back into that meeting. They went back into the meeting. Mr Hodby came out and a couple of attempts that we tried to do to have a quick word with the workers, management would not allow us to have a position to notify them what is going on.

PN31

They then locked the doors and locked us outside. Would not let us participate in to the negotiations even though we were their nominated representatives. During that period of time the - some workers attempted to get up and walk out and come to talk with the unions but Mr Michael Wright, he is one of the managers in the contracting area, locked the door and stood in front of it and would not let them out. So we had a situation where the people were forced into this meeting without their representatives and they were asking for their representatives to be present to inform them what the changes were and why they were being made.

PN32

That is when we attempted to notify the Commission to seek assistance in this matter. The employees had been denied their rights under the Act to have their union present at these negotiations on the issue. Having said that, just prior to the meeting, Mr Hodby came out and I spoke to him and I've said to him that he was in breach of the Act because we should be allowed in there, we have been asked to attend the meeting to - Mr Hodby had said: well, we have the rights to do what we are doing and because we are not asking the people to vote, it is our meeting, we are paying for it, you are not allowed to be here.

PN33

I've got to say to you, sir, I would like to pass something up. Having said that, and he gave the commitment that there would not be any voting on the issue, Mr Hodby went out - I would like to present up to the Commission, Senior Deputy President a notice that was handed out by Mr Greg Hodby to all the workers where he gives the commitment that it would not be any vote on the matter.

PN34

THE SENIOR DEPUTY PRESIDENT: Have you given a copy of this document to Mr Duggan?

PN35

MR DEAKIN: Yes.

PN36

MR DUGGAN: Yes, thank you, Commissioner.

PN37

THE SENIOR DEPUTY PRESIDENT: I will mark the document as CEPU1.

EXHIBIT #CEPU1 UNDATED BALLOT

PN38

MR DEAKIN: As you can see, sir, on it is Nilsen Electrical (SA) Pty Limited Contracting Division and the question that was put to them: would you like Nilsen to formalise the enterprise agreement with South Australia 2003-2005 draft 21.5.03. Yes. There's a box there with a tick, yes, and there's a box there with a tick, no. If that is not a vote, I will go cooee. Now, the guys come out of that meeting and they were totally confused. They said, we were not asked to vote and we are not voting, but I have said to them, sir: well, you have, you have just been asked to vote, to formalise the document that has been presented in front of you. So we have a situation - - -

PN39

THE SENIOR DEPUTY PRESIDENT: Mr Deakin, can I interrupt you once again in my endeavours to come to grips with something that you are obviously expert in, do you say that your members were given this ballot paper that I have marked CEPU1 - - -

PN40

MR DEAKIN: Yes, sir, at the meeting.

PN41

THE SENIOR DEPUTY PRESIDENT: - - - at the meeting?

PN42

MR DEAKIN: Yes, sir. Where there were - there's other issues surrounding that, but yes, they were given that paper to vote on. When I asked them - when I informed them that they have just voted on that document, they said, "No, we haven't." And I said, "yes, you have. Nilsen has just put a paper in front of you which some of you have ticked and some have not, whether or not to formalise the enterprise agreement that had been put in front of you to vote upon. You voted - some of them had voted "yes" some had not even ticked it off. There was total confusion coming out of the meeting.

PN43

So, sir, we would seek that that vote would be null and void because of the situation that the workers found themselves in in there on the voting of the document. The workers were then notified of the outcome of the vote - I haven't got enough copies to go round on this one, I'm sorry. I thought I would have but - what the meeting was told when the meeting had finished some had organised - there was meetings of employees at Nilsen Electrical re the EBA. There were 52 present at the meeting, 32 voted "yes", 20 voted "no". At other places and Moomba - Millicent and Moomba, 17 voted "yes". We don't know how those votes were carried, we don't know what it was on, some people did not vote.

PN44

So the actual vote itself we would say was null and void and the way it was carried out the pressure put on the people, the locking of the doors and the denial of the employer for the union to be present. The negotiating party to be present. The reason behind this is because the company has inserted two clauses, one actually breached section 170BA and the other one, section 170LU which is equal remuneration for equal work value. That is a big bone of contention and the other one is, sir, is that the company has now agreed to all purpose hourly rate of a certain amount. They are not saying that is just for hours worked.

PN45

We have documentation that this what I'm saying, sir, this is probably we will need more time to present a proper case on this. Where the employees have presented to the unions and for a mass meeting prior to these meetings held on Friday, they presented us with an offer at a mass meeting which Nilsen's employees were part of, and the company has now reneged on that offer. They want to say that the agreement would not apply to workers on projects that started before the certification of this document.

PN46

Well, that would mean for some of the workers in Nilsen's that for the next 18 months they will not pick up a pay increase under the enterprise agreement which - and that is only one of the projects. Now, that was never part of the deal, it was never agreed to. It is in breach of 170LU.

PN47

THE SENIOR DEPUTY PRESIDENT: I'm sorry, what was the other section that you claimed was relevant?

PN48

MR DEAKIN: Equal remunerations, that is 170BA.

PN49

THE SENIOR DEPUTY PRESIDENT: BA?

PN50

MR DEAKIN: Yes, sir.

PN51

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN52

MR DEAKIN: It is 170BB, equal remuneration for equal work value. SO it is that and 170LU, which 170LU, where the company is now trying to apply it and I'm surprised that NEKA has not informed them that it is impossible to do it, because if you look at 170LU(8) despite section - and I will read out:

PN53

Despite section 170LT the Commission must refuse to certify an agreement if the agreement applies only to a part of a single business that is neither of the following, a geographically distinct part of the single business or a distinct operation, or organisational unit within the single business.

PN54

And it goes on. Sir, what we have here is that the company wants to include Mount Gambier into the enterprise agreement which is what 500 kilometres away and have those people vote and we don't know how they voted and on the other hand there are people in electrical contracting here working along side other workers but on a different site will not be parties to the agreement. They will pick up wages and conditions under the existing agreement or they will pick up certain conditions under the new agreement, but the wage rates they will not, which we find is in breach of the intention of section 170LU.

PN55

That is a position that was put forward by two companies after the agreement that day of - the offer of agreement which was the basis on which all industrial action ceased. So we have two major changes that the companies have done and we say they have bargained in bad faith and I have got to say to the Senior Deputy President right at this moment, notices are going out to most of the companies today to seek a mass meeting of all workers for Friday morning to put to them the changes that the two companies are tyring to attempt to change after the agreed proposal that was put forward.

PN56

To help you out on this, sir, I would like just to present to you a copy of that proposed outcome, that agreed position which we took to the mass meeting and which was agreed to by the members, which was a major reduction I may add, to our log of claims. So this meeting, if you look at it, sir, it says: The Fares and Travel.

PN57

THE SENIOR DEPUTY PRESIDENT: Mr Deakin, do you want me to admit this document?

PN58

MR DEAKIN: Yes, I think so, sir.

PN59

THE SENIOR DEPUTY PRESIDENT: Have you got a copy for Mr Duggan?

PN60

MR DEAKIN: Yes.

PN61

MR DUGGAN: Yes, I have, thank you.

PN62

THE SENIOR DEPUTY PRESIDENT: I will mark this as CEPU2 noting that it is an email from Mr Moore to the CEPU.

EXHIBIT #CEPU2 EMAIL FROM MR MOORE TO THE CEPU DATED 06/05/2003

PN63

MR DEAKIN: If I may read that out to you, sir? It is the email and it is to - from Mr Larry Moore to Bob, Wilf and Jason, that is Bob Gerrarty, State Secretary, Wilf Deakin and Jason Wilder:

PN64

Please find attached a file with the rates as agreed. I have discussed the agreed outcomes ...(reads)... Please give me a call if you need any further clarification. Best regards, Larry Moore, Chief Executive Officer.

PN65

If you go to the last page you will find agreed positions with the ETU on 5 May 2003. You will see on the third column - fourth column down:

PN66

All purpose productivity allowance going from $1.50 on 1 May 2003. $1.55 on 1 May 2004, $2.25 on 1 May 2005.

PN67

And it says:

PN68

Note: It is clearly recognised that the rate applicable on the 1st of the 5th 2005 is inclusive of the full introduction of the 36 hour week and that the ordinary weekly rate of pay on the 1st shall be $900 and that rate shall apply for all purposes of the award.

PN69

Quite clear, quite precise because we have never argued in all of our discussions and all our fighting around a table that that rate was all purpose. What we had just prior to the meeting that Mr Moore was referring to, is that we sat down at that meeting and just as an off chance he said: you know that $1.50 going up to $2.16 - the $2.25 it is for all hours worked. I said: no, it is all purpose.

PN70

When we got to the meeting on last Monday with Mr Greg Hodby, the manager from Nilsens, who was one of the main negotiators for the working party for all the other companies, who at that point in time raised those two issues. One, the inclusion of an area where the agreement wouldn't apply, the new rates wouldn't apply and this new position on the all purpose hourly rate. That is when - - -

PN71

THE SENIOR DEPUTY PRESIDENT: So what was the first issue that you say was changed?

PN72

MR DEAKIN: It is the issue Mr Greg Hodby raised an issue where the new EBA rates would not apply on certain projects that were tendered for prior to - - -

PN73

THE SENIOR DEPUTY PRESIDENT: I see, thank you.

PN74

MR DEAKIN: - - - the certification of the agreement. Our objections to that is because the log of claims that we gave Mr Greg Hodby and Nilsens in particular, we put our log of claims to them in November 2001 and over a period of seven or eight months, Nilsens and the others refused to talk with the union on those log of claims. And in fact at further discussions we had with Nilsens they said that they had allowed for the expected wage increases, that they had already allowed for it anyhow. And probably that they were the only camp there that had, and that was a discussion coming from Mr Hodby and Mr Dave Lindner.

PN75

What we had was coming straight out the blue, was this new position which we said: you can't do that, it is breach of the Act. They said: well, we are not signing any document now that does not have those two things in it. Our position was they bargained in bad faith and in fact that - and we believe not only have they bargained in bad faith that the way they handled the voting on Monday - sorry, on Friday afternoon, was disgusting. Disgusting to say the least in it would be under the Act in our opinion would be seen as intimidation or coercion.

PN76

Their representatives was denied a right to be there to talk about the new inclusions that they had tried to put into the document which is now going to cause us a major fight within the electrical contracting industry simply because - Nilsens was one of the major negotiators - elected major negotiators for the team of companies who actually stood by and refused to negotiate on the ETU document but had the wrong document that the ETU had agreed to. So what we come up with was a compromised position on the documents and some of the clauses which at the end of the day we had no problem with, except for the agreed part here.

PN77

The situation now exists, sir, is that we have companies who we have contacted since we were heard about this meeting with Nilsens and said as your intention to not to sign that document. Their position was and we don't want to say in front of Mr Moore who these companies are, because I will give you a reason in a few minutes. They said to us: we agree with the document, we have agreed with the all purpose rate, we have agreed on all the other issues of fares and travel, redundancy, income protection, the wage rates, all purpose and the 36 hour week, we have got no problem with it. That is what we all agreed on, but we will not and cannot be the first company to sign this agreement.

PN78

We have said: well, that is going to cause you some problems, because if you are saying that you are not going to sign this document simply because of some other company, well then you have got a problem and we will not at this point in time present that name of that company, sir, but if this gets into a real fight in the Commission or out on a building site, then these company names will be brought forward. All through this, the union has tried - really has tried to comply with every party.

PN79

THE SENIOR DEPUTY PRESIDENT: Mr Deakin, what form of agreement are you seeking with the employers? Are you seeking an agreement pursuant to - what form of agreement are you seeking with the employers? Are you seeking an agreement pursuant to section 170LJ? Is it a section 170LS proposal?

PN80

MR DEAKIN: LJ.

PN81

THE SENIOR DEPUTY PRESIDENT: It is an LJ proposal?

PN82

MR DEAKIN: Yes.

PN83

THE SENIOR DEPUTY PRESIDENT: Now, if I understand what you are telling me, I presume that the union has not signed the agreement as yet?

PN84

MR DEAKIN: No, sir, it is just because certain - it was agreed to, the major sticking points were actually the issues on CEPU 2, the submission put forward to you, sir, and that is the wage rates and whatever. The other outstanding issues - - -

PN85

THE SENIOR DEPUTY PRESIDENT: Well, what I'm wresting with, Mr Deakin, is that the Act provides for a, if you like, a form of legitimate industrial warfare.

PN86

MR DEAKIN: Sir.

PN87

THE SENIOR DEPUTY PRESIDENT: I don't know whether the union has a bargaining period in place?

PN88

MR DEAKIN: We do.

PN89

THE SENIOR DEPUTY PRESIDENT: I don't know whether the union has foreshadowed further industrial action pursuant to that bargaining period? But the Act makes it fairly clear that the union has certain rights to take industrial action and the employer has certain rights to take industrial action.

PN90

MR DEAKIN: That is right, sir.

PN91

THE SENIOR DEPUTY PRESIDENT: The issue that I am grappling with goes to what is it that you would be seeking from the Commission in terms of an involvement in this particular process?

PN92

MR DEAKIN: In the short term sir, we would seek that the vote that was carried or put forward at the meeting by Nilsens on Friday, was null and void and that we believe that - because at the moment the companies will be notified as of today - - -

PN93

THE SENIOR DEPUTY PRESIDENT: But let us - can we just take that a step further. If the employer argues that the vote put to the employees was such that it warrants an agreement reached, then if the agreement that is to be pursued is a section 170LJ agreement and your union does not sign the agreement, there is a potential difficulty in terms of the achievements of certification of that particular agreement.

PN94

MR DEAKIN: Yes, sir.

PN95

THE SENIOR DEPUTY PRESIDENT: If the employer argues that the agreement reached with its employees is such that it warrants a section 170LK agreement, then the employer has the task of demonstrating to the Commission that the various pre-requisites set out in section 170LK have been met. And on that basis I'm still wrestling with how this is anything other than an ongoing chapter or battle in a series - as part of a series of skirmishes between the employer and the union.

PN96

I have listened carefully, I have noted that there appears to be a desire on the part of both the union and - whilst I have not heard them yet, the National Electrical Contractors Association, to arrive at a common form of agreement. But I must say I'm resting with the extent to which the Commission is able to get involved in under the Act, that negotiation process.

PN97

MR DUGGAN: Sir, it might be appropriate for me at this particular point in time to indicate something about Friday. My friend has indicated that in relation to the so-called vote on Friday, that it was the employees understanding that it was not a vote on the agreement as such. Can I indicate that that is certainly the position and that Nilsens will not be putting forward any agreement for certification by the Commission arising out of any so-called vote on Friday, if that is of any assistance to the Commission.

PN98

THE SENIOR DEPUTY PRESIDENT: Mr Deakin, what should I make of that tangled web that has been woven now?

PN99

MR DEAKIN: Well, that entangled web, sir, is the way Nilsens have always worked in the past. What he says there is to formalise the enterprise agreement. Now that was the - to formalise the agreement that was presented in front of the guys on Friday with these two amended positions in it. This is what I'm saying about that meeting. That meeting people came out of there confused as to what their rights were. And the action that we was taken on Friday was to seek access to that meeting and if not get access to the meeting, that any outcome from that meeting should be null and void.

PN100

Simply because in the manner which it was done in. We believe it was a form of harassment, intimidation to get a position. Now, the position that has come out, they are saying now at that meeting they did not ask the guys to sign on that agreement, they didn't. But what they have asked the guys is to formalise that agreement that was placed in front of them to present back to them in a couple of weeks time to vote on. What they have voted on is a process to vote on the document which to me, is misleading in itself and because they denied the union and their representatives access to that meeting, that vote cannot be considered fair.

PN101

What we are saying on that grounds, that that vote should not be allowed to remain in place, should not have any - carry any weight at all.

PN102

THE SENIOR DEPUTY PRESIDENT: Yes, thank you, Mr Deakin. It might be best if I hear from the employer now as I try to make some sense out of this wanderous state of affairs. Mr Duggan?

PN103

MR DUGGAN: Sir, bearing in the mind the quickness with which this matter has come on, I haven't had the opportunity to get formal instructions from my client and can I indicate that he is unavailable to attend today due to a board meeting and did seek that the matter be adjourned if need be. I haven't progressed with that because I thought it was appropriate that we hear what Mr Deakin had to say this morning and I don't see any reason to press for an adjournment at this stage. But if there is a need for detailed instructions, I would ask that another time be set so that we can get more detailed instructions in relation to the issue.

PN104

Can I say though that certainly so far as my instructions were concerned, there is no vote on the agreement as such that took place on Friday. From the employers perspective, there were discussions that have involved the union and have taken place between the employer and the union in relation to a proposed enterprise bargaining agreement. The purpose of Friday was to explain to employees where that process was rather than to vote on any agreement as such. Now, the employer will not - - -

PN105

THE SENIOR DEPUTY PRESIDENT: So what do you say I should make of CEPU 1, Mr Duggan?

PN106

MR DUGGAN: CEPU 1, is the document entitled Nilsen Electric SA Proprietary Limited Contracting Division.

PN107

THE SENIOR DEPUTY PRESIDENT: Yes, it is the undated ballot paper.

PN108

MR DUGGAN: Sir, as I'm instructed that was not a proposal to vote on the agreement as such. I would concede that the words are a little bit unclear as to what that actually means. So far as - - -

PN109

THE SENIOR DEPUTY PRESIDENT: I think the words are remarkably clear. I wish all ballots were quite so clear.

PN110

MR DUGGAN: Well, it seems to me clear from what Mr Deakin has said that the employees did not understand that they were voting on the agreement itself and certainly from the employers perspective, that was not the intention of the vote on Friday and indeed my instructions are clear that nothing that arose from Friday is going to cause the employer to put forward any agreement for certification and I've made that clear to the Commission already. So far as the vote that was undertaken, my instructions are that that was a vote in relation to continuing discussions and allowing those continuing discussions to take place. Sir, it was a - - -

PN111

THE SENIOR DEPUTY PRESIDENT: But that is not what this ballot paper says. It is blatantly the opposite to what this ballot paper says if I've read the ballot paper correctly.

PN112

MR DUGGAN: Sir, it seems to be opposite to what the ballot paper says, but it seems clear from what Mr Deakin has said about the employees understanding and indeed what the employer informed the employees about what they were voting upon, that there was no intention that there be a vote on the agreement as such and certainly from the employers instructions it is clear that the preference is to have the union involved in the ultimate enterprise bargaining agreement. So it would be necessary for the employer to reach agreement with the union to put forward any enterprise bargaining agreement before the Commission.

PN113

Now, clearly from what Mr Deakin has said today, the union does have some objections to the particular form of that particular agreement. So we are clearly not in a position to put forward any agreement at this particular point in time. And the employer has not sought to go down the path of 170LK agreement at this particular point in time either. So whilst the words might seem reasonably clear that what the employer was seeking to do was to have an agreement voted on. that certainly was not the intention. From what Mr Deakin has said today about the employees understanding of what the vote was about, it is not that it was a vote on the agreement itself.

PN114

THE SENIOR DEPUTY PRESIDENT: And what is the employers position relevant to future meetings and to the capacity of the CEPU to participate in those future meetings?

PN115

MR DUGGAN: Well, sir, the employers position is that a number of meetings, some of which have been described by Mr Deakin have taken place between the employer and the union. The employer is not seeking to prevent the union from continuing to have negotiations with the employer and we would welcome those discussions taking place. The employer did however feel in respect of the meeting that took place on Friday, that it was a right that it did have to go to the employees and to explain them where the process was at at this particular point in time. Now, there is nothing in these - - -

PN116

THE SENIOR DEPUTY PRESIDENT: On the face of it, it does not appear to have done a remarkably good job given the confusion over the intent of CEPU 1.

PN117

MR DUGGAN: Well, with respect, sir, that is simply the union's interpretation. The employees - - -

PN118

THE SENIOR DEPUTY PRESIDENT: Well, it is my interpretation too, because I'm having awful difficulty reading CEPU 1 as anything other than a ballot paper that purports to ask whether the persons voting would like Nilsen to formalise the enterprise agreement 2003/2005 draft 21 May 2003, with a "yes" or "no" option.

PN119

MR DUGGAN: Well, sir, with respect, it may be causing confusion to yourself and it may be causing confusion to the union. But from what Mr Deakin has said, it seemed clear to the employees who were at the meeting and they were the employees who were there and heard what the employer had to say, but it was not a vote on the agreement, and sir, that is the position of the employer.

PN120

THE SENIOR DEPUTY PRESIDENT: But what do you say it was a vote on?

PN121

MR DUGGAN: Sir, as I indicated it was a vote in relation to allowing the continuing discussions in relation to the agreement to continue.

PN122

THE SENIOR DEPUTY PRESIDENT: And what is the employers position relative to the involvement of the CEPU in any future meetings between Nilsen Management and Nilsen employees?

PN123

MR DUGGAN: Well, sir, I've addressed the issue of meetings between the union and the employer and I confirm that the employer welcomes further meetings. Sir, in relation to meetings between the employer and its employees, the employer considers that on occasions the employer will have the right to direct its employees at a meeting without the presence of the union. Similarly the employer believes that the union has that right as well and believes that it has exercised that right in the past.

PN124

THE SENIOR DEPUTY PRESIDENT: I see, yes, thank you, Mr Duggan.

PN125

MR DUGGAN: Sir, if I can just clarify one point - - -

PN126

THE SENIOR DEPUTY PRESIDENT: Certainly.

PN127

MR DUGGAN: - - - about that issue? Sir, can I just clarify in relation to that last point that I made, before an agreement would be put to a vote it would be expected that both the employer and the union would be able to address all employees in relation to that particular agreement.

PN128

THE SENIOR DEPUTY PRESIDENT: Yes, thank you, Mr Duggan.

PN129

MR DUGGAN: Thank you, sir.

PN130

THE SENIOR DEPUTY PRESIDENT: Mr Deakin, is there anything further you want to say to me at this stage of the proceedings?

PN131

MR DEAKIN: Yes, sir. I would disagree with Mr Duggan's interpretation of that how to vote presented in front of the workers. Sir, the wording is quite clear: to formalise the enterprise agreement. It does not refer to continue to negotiate. If it was to continue to negotiate, it should say that. This piece of papers says: to formalise the enterprise agreement, and the agreement is the South Australian Agreement 2003/2005. We can only take that to believe that the document that was placed in front of the guys was going to be the document that they were going to be called upon to vote upon at a later date.

PN132

Mr Duggan is correct, in that Mr Hodby quite clearly said to him, they are not asked to vote on the document. And yet they put a piece of paper in front of them which clearly states: to formalise that document, which the next step would be to vote on that document. So I would oppose what Mr Duggan is saying. In the past, sir, we have had a strong negotiations, the employees would meet with the unions and the unions would meet with the members but the last enterprise agreement that we had with Nilsens because we were on slightly better terms.

PN133

We had joint meetings when it came down to actually vote on the document. And what I have got to say to you, is at that - last time on the certification of the existing document, the union pointed out to the members of some difficulties and some things that they should be aware of on the document and Nilsens turned around and accused us of trying to sabotage the agreement. That was not the case, we have a responsibility to point out all the good points and the bad points of any documentation as presented to them to vote upon.

PN134

I think this time around, they excluded the unions so the situation wouldn't happen again this time. We would be seeking somewhere down the track before on the voting, actually voting on the document itself that those meetings would be a joint meeting so that the employees and our members would see that both parties were actually supporting that document.

PN135

THE SENIOR DEPUTY PRESIDENT: Thank you. Just bear with me for one moment please, Mr Deakin. I will try to marshall some of my thoughts in this matter.

PN136

MR DEAKIN: Sir.

PN137

THE SENIOR DEPUTY PRESIDENT: Yes, I'm saying just bear with me for a moment, I will try to marshall some of my thoughts.

PN138

MR DEAKIN: Okay, sir, thank you.

PN139

THE SENIOR DEPUTY PRESIDENT: Mr Deakin, I am very conscious that at the outset of this morning's proceedings you foreshadowed the possibility that the CEPU may seek to vary the application so as to change the section under which the application was brought to a section 170LW application. I haven't heard from you in that regard and I am award of your rights to be heard in that regard. What I wanted to do was to outline a possible position for you so that you might consider that.

PN140

It seems to me, as I have indicated to the parties, that the Act provides for legitimate industrial action as either party seek to progress a certified agreement and that the role of the Commission in controlling or regulating that legitimate industrial action is an inherently limited role. It is equally clear to me on the basis of what I have heard this morning that Nilsens and the CEPU are seeking a section 170LJ certified agreement and that a section 170LK proposal is not currently on the table. Nor indeed, as I understand Mr Duggan's position, is it being countenanced for the foreseeable future.

PN141

The negotiations toward this agreement clearly involve a bargaining period and protected industrial action under the Act. Section 170LJ agreement could be reached as a matter of principle between a union and an employer and then endorsed by a vote of employees. Alternatively a section 170LJ agreement is able to be reached on the basis that the vote of employees precedes a union signature on the particular agreement. The Act does not necessarily dictate which of those two comes first. The Act makes it equally clear and in absolute terms that whilst the parties may have approached this issue from the perspective of an industry-wide arrangement, the focus of agreement-making is directed at the enterprise.

PN142

There is no obligation on Nilsens nor indeed on any other employer or group of employees to necessarily establish an industry-wide or industry-consistent position. On that basis Nilsens have confirmed that the agreement proposal will prior to being voted upon by employees be the subject of an opportunity for the CEPU to address and meet with its members. The CEPU have the opportunity under the Act to pursue further industrial action or to seek to return to this Commission either under the existing application or under another application under another part of the Act.

PN143

Should you wish to pursue another application under another part of the Act I can only suggest to you that it might be appropriate for the CEPU to obtain further expert legal advice on the opportunities open to you. It appears to me to be logical in this situation for the CEPU and Nilsens to say: we've had a hiccup in our negotiation process, we've come asunder, but for both parties to recognise that if they are ultimately to reach an agreement and ultimately to break free of the protected industrial action environment which is encompassed within the concept of a bargaining period, then they would sooner or later have to reach an agreement.

PN144

It is equally incumbent on both groups to realise that it is unlikely that the Commission will reach that agreement for them - not impossible but unlikely. It occurs to me that it would then be logical for the CEPU and Nilsens to sit down and to outline a programme for future negotiations and discussions with that programme including an opportunity for the CEPU to meet with its members prior to any vote being taken. Now, if at any point, as I've indicated earlier, the CEPU believe that the process that is being proposed is inconsistent with the obligations of the Act, then there is an opportunity to return to the Commission.

PN145

I have enormous difficulty conceiving how pursuant to section 99 I could declare a vote the status of which and the reliance of which and the purpose of which I am unclear to be null and void. It seems to me we have moved on from that particular issue to say: let both parties recognise that they are still in a negotiating position; there is a commitment given on the record this morning that there will be an opportunity given to the CEPU; there is absolutely no prohibition on the CEPU returning to this Commission to argue that the process of negotiation that is being followed by Nilsens is contrary to the Act insofar as it is denying the CEPU an opportunity to participate in meetings. I'm not being called upon to arbitrate on that question this morning and I have some doubt that this application will allow me to do so.

PN146

What I propose to do and I put to you for your reaction is to issue a statement later today that effectively outlines the position that I have tried to articulate now and to leave the matter resting there so that if you sought to pursue this application over the next few weeks you could do so but you would need to recognise the inherent limitations associated or potentially associated with the application. Alternatively, there might be a need for a further application but the ideal position would be that both parties sit down and do in fact negotiate that programme for future discussions.

PN147

I am putting that proposition to you at this stage so you can have a think about it before you tell me whether or not you want to proceed with the application this morning and if so whether you seek to argue that the application ought to be amended so as to be reliant upon section 170LW rather than a section 99 application. Do you want to have a few moments to think about that position and possibly to talk with Mr Wilder in that respect?

PN148

MR DEAKIN: Yes, sir.

PN149

THE SENIOR DEPUTY PRESIDENT: Very well, I will adjourn the matter for 5 minutes and then resume. I do need to indicate that I have another matter in half-an-hour, so that I promise we won't be going for too much longer this morning.

PN150

MR DEAKIN: If the position is, if it would help the situation this morning, if we could get it - - -

PN151

THE SENIOR DEPUTY PRESIDENT: Perhaps before you answer, I'm very happy for you to have a talk with Mr Wilder before you declare any position relative to this morning. So I will adjourn the matter for 5 minutes to allow that to occur.

SHORT ADJOURNMENT [9.35am]

RESUMED [9.48am]

PN152

THE SENIOR DEPUTY PRESIDENT: Mr Deakin?

PN153

MR DEAKIN: Sir, on the application for the section 170LW we reserve our position on that one, sir, but we will be seeking under the section a recommendation from yourself.

PN154

THE SENIOR DEPUTY PRESIDENT: Yes, well, as I've indicated, I intend to provide a statement to the parties consistent with that I provided earlier and I will endeavour to do so today. Mr Duggan, is there anything further from your perspective in this matter?

PN155

MR DUGGAN: No, sir. There were going to be some documents I was going to seek to tender in relation to the 170LK position but I don't think it is appropriate in the circumstances.

PN156

THE SENIOR DEPUTY PRESIDENT: LK.

PN157

MR DUGGAN: Well, the original basis for the application was alleged failure to allow the union to meet and confer pursuant to section 170LK(5) and a failure by the company to abide by section 170LK(4). Sir, I don't see the union position as the pressing issues to those particular sections.

PN158

THE SENIOR DEPUTY PRESIDENT: No. You have confirmed to me the company is not currently seeking nor intending to seek a section 170LK agreement?

PN159

MR DUGGAN: No, not at this particular point in time, sir.

PN160

THE SENIOR DEPUTY PRESIDENT: Yes. Now, Mr Duggan, it is probably appropriate that I invite you to comment on the extent to which your client sees any problem with the approach that I suggested to the parties, namely that both parties sit down and do in fact outline their programme for the future discussions including meetings with the employees, perhaps the circumstances under which those meetings might be held and indeed it would probably be logical for the parties to agree on how they will conduct any ballot should there ever be a conceivable opportunity of doing so.

PN161

MR DUGGAN: Sir, we would welcome that opportunity, yes.

PN162

THE SENIOR DEPUTY PRESIDENT: All right. Very well, I will adjourn the matter on that basis and I will provide my statement to the parties as soon as I can at some stage, hopefully today.

ADJOURNED ACCORDINGLY [9.52am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #CEPU1 UNDATED BALLOT PN38
EXHIBIT #CEPU2 EMAIL FROM MR MOORE TO THE CEPU DATED 06/05/2003 PN63