C2003/1817, Transcript of Proceedings [2003] AIRCTrans 3121 (21 July 2003)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT O'CALLAGHAN

C2003/1817

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

and

WORMALD FIRE SYSTEMS - A DIVISION OF TYCO AUSTRALIA PROPRIETARY LIMITED

Notification pursuant to section 99 of the Act
of an industrial dispute re failure to give employees
a reasonable opportunity to decide whether they want
to make the agreement

ADELAIDE

11.34 AM, TUESDAY, 8 JULY 2003

PN1

MR W. DEAKIN: I appear on behalf of the CEPU Electrical Division.

PN2

MS F. HUGHES: I appear on behalf of Wormald. Your Honour, I'm appearing under instruction from MR PHIL DARBY, the company's industrial relations manager who is unable to make today's proceedings due to commitments elsewhere. Your Honour, with me to my left I have MR KYM WATSON, account manager for Wormald, MR ALAN SNEWIN, elected employee representative and MR MARK DUNSHORE, manager of Tyco Fire and Safety of which Wormald is a trading company. If your Honour pleases.

PN3

THE SENIOR DEPUTY PRESIDENT: Thank you, Ms Hughes. Mr Deakin, to what do I owe the pleasure of your company this morning?

PN4

MR DEAKIN: Well, sir we are in process, on behalf of our members at Wormalds, in trying to create an enterprise agreement for the company. Sir, the actions of the company in the last few weeks has raised major concerns over I believe some intimidation, harassment and not acting in the best manner under the terms and conditions under the Act. I say this in a number of ways, sir.

PN5

Harassment and intimidation can go in different formats and what has happened recently, we have had a number of situations where in the last few weeks we've had complaints from our members working in Wormalds. The first being that we pulled in the testers and the guy from the electrical contracting side of it into a mass meeting in to the union office. We had a situation arising from those meetings that we would then service notice on the company of our intentions and our log of claims.

PN6

From the first meeting then, the company went out and targeted the testers which is the most vulnerable group of the lot. So they are not trades people, most of them are not trades people and feel very concerned that if they in any way take any form of industrial action or pursue this EBA, they could be sacked. We told them at our last meeting, they came to our last meeting just over a week ago, they raised those issues that they believe - some of them believe that if they join in with everybody else into the enterprise agreement that they could be sacked by company later on down the track.

PN7

We finally put that to rest. We put those concerns to one side. We said we have got protective action wherever we go, you will be protected.

PN8

THE SENIOR DEPUTY PRESIDENT: When you say targeted, what do you mean, Mr Deakin?

PN9

MR DEAKIN: Say again, sir?

PN10

THE SENIOR DEPUTY PRESIDENT: When you say targeted, a group of employees, what do you mean?

PN11

MR DEAKIN: Segregated them from the rest of the workforce.

PN12

THE SENIOR DEPUTY PRESIDENT: Physically segregated them?

PN13

MR DEAKIN: They are a division - they are a section within the company which are at the moment all under the one agreement. What they have done is concentrated on sending out documents directly to those people themselves, go and talk to them as individuals, presenting documents in front of them, saying we wanted to offer you a separate agreement rather than the agreement for the rest of the company. They are the most vulnerable people of the lot.

PN14

They are the most concerned about their employment, simply because they are not of a trade background. Most of them have no trade to fall back on so they are the most concerned group amongst them. We put that concern to rest, that it would be as a group. When we finished our last meeting, it was agreed by all parties in the company that they would go down for one agreement. Then the company again went out and - within a day of that meeting, we had the company go out and once again go around to the testers, talking to them about doing a separate agreement.

PN15

They even talked about emergency testers which were electricians that were working in that area. They asked the company: what the heck are you doing? Why are you doing this? They said to them: well, you are not being part of this vote. This has got nothing to do with you. We are not going to ask you to vote on this document. You are not going to be parties of this document and you won't have a vote. Later on, if you choose to be want to be part of this agreement, we will let you.

PN16

So we see that as a real devious way of trying to control the outcome of a vote of the whole of the company which now means that the company is trying to take one section, segregate it from the rest, get them to come along to looking at a company document, leave the others high and dry, cause confusion and worry amongst the other people and them offer them another document. In other words, it is to try and control the outcome of any approach that the guys have gone in in the company.

PN17

I've got say, sir, in the last week we've had some major - we've had calls from lots of areas concerned of the approach that the company is now taking, considering that in the past they have always been part of the same enterprise agreement. They see this as a deliberate attempt by the company to control a vote.

PN18

THE SENIOR DEPUTY PRESIDENT: What do your members see the company as pursuing, Mr Deakin? Is it a 170LJ agreement or a 170LK agreement?

PN19

MR DEAKIN: Well, that is why we are not sure at the moment.

PN20

THE SENIOR DEPUTY PRESIDENT: I see.

PN21

MR DEAKIN: I mean, we are saying it is a 170LJ - yes, LJ and we don't know because - - -

PN22

THE SENIOR DEPUTY PRESIDENT: You understand you are negotiating 170LJ agreement with the company?

PN23

MR DEAKIN: Well, that is right, sir, and what we are finding now is that the company has not come to the unions to talk about anything. What they are trying to do is segregate the guys away from the union, segregate them amongst themselves to then put out offers to the most vulnerable part of the workforce and to - like I say, as in pressure or harass because of the ability that they have over this workforce, I would say it is a form of harassment and intimidation to get them to break away from the rest so they can control the outcome of the votes.

PN24

That is where we are up to this morning. I've been asked this morning, I was called upon by the members to look at what is happening here. We've notified some of them that we would be putting the matter to the Commission because I want it on record that we've got concerns of the attitude that has been taken and the methods that have been proposed by the company to high-jack and control the outcome of the enterprise agreement.

PN25

Now, as of late yesterday I was informed by one of our members that the company has now proposed to put on offer to the contracting people which is what I would say is once again trying to overcome what is going to happen in this Commission this morning, is to try and put something else on record that they are doing all the right things. We don't believe they are. We believe they are being really devious in their approach this time to, like I said, control the vote, especially when all the employees right now are on the same agreement.

PN26

They have never been questioned before about setting up different sections within the agreement. The wage rates can actually be on the same agreement but they have done nothing about that, they have just tried to actually segregate the areas. The settle them into a separate section and that, we are saying, when you look at the numbers it is a bit worrying for the rest of the workers that this is being attempted because we are not talking small numbers there. There are approximately 30 odd people and I think probably 17 are in the testers, 4 with electrical breakdown, the rest not. We see that as a deliberate attempt, and unashamedly a deliberate attempt, to try and control the outcome. That is what we say.

PN27

THE SENIOR DEPUTY PRESIDENT: Mr Deakin, what do you want me to do?

PN28

MR DEAKIN: Sir, I am aware of the fact that you cannot make any orders simply because you don't have the agreement in front of you. What I intend to do, sir, is have it on record so that if the documents are presented in front of you that we would make it again at that point in time. We want to make the Commission aware of the sort of tactic that has gone on at the workplace in getting agreement into place. We would want to be making sure that the company will be aware that we would be opposing any certification of any agreement, whether it be union or non-union agreement with that sort of tactic being perpetrated on the workforce.

PN29

THE SENIOR DEPUTY PRESIDENT: Yes, is there a bargaining period in place, Mr Deakin?

PN30

MR DEAKIN: Pardon, sir?

PN31

THE SENIOR DEPUTY PRESIDENT: Is there a bargaining period in place?

PN32

MR DEAKIN: Yes, there is, sir. The industrial action is about to commence. We've got a report back meeting on Tuesday morning of next week of the workforce to see what we need be doing. I believe this was in response to the notice that was sent out, the type of actions that would be taking place.

PN33

THE SENIOR DEPUTY PRESIDENT: Yes, thank you, Mr Deakin? Ms Hughes?

PN34

MS HUGHES: Your Honour, needless to say we - - -

PN35

THE SENIOR DEPUTY PRESIDENT: Perhaps before you address me, I'm a little at a loss as to what it is you are responding to. I take it Mr Deakin is intent firstly simply on putting things on the record.

PN36

MS HUGHES: Yes, your Honour.

PN37

THE SENIOR DEPUTY PRESIDENT: To that extent, he may well have achieved the objective to today's proceedings but I am in your hands in terms of if you want to say something to me.

PN38

MS HUGHES: Yes, your Honour. We certainly like to categorically refute the allegations that have been made by the ETU. Your Honour, we have been in negotiations with a joint consultative committee since approximately late March or thereabouts of this year. We've had numerous meetings with various management representatives and representatives of the employees in each of the three of our departments, if I can put it that way, have nominated to represent their industrial interests.

PN39

Your Honour, we break our business unit up into three distinct areas. One is our testing department, secondly is our emergency services department and thirdly is our contracting department. They quite clearly are separate areas for the purposes of running the business. They have separate profit and loss responsibilities and they have separate management and clerical structures supporting each of those businesses. So quite clearly under the Act, your Honour, yes, we have had one agreement in the past.

PN40

This agreement, the employees actually approached the company to say: well, we don't actually want to participate in the industrial action which is due to commence today. What can we do? We put forward that one of the proposals would be that if the employees wish to, we could pursue the agreement as that we had it sitting on the table through the joint consultative committee as a non-union section 170LK agreement. In particular, your Honour, we would like to put on the record that the company has complied with section 170LK(2), the notice of intent to make an agreement.

PN41

Your Honour, we have issued copies of the proposed agreement to each and every person in both the FST or the testing department and the emergency services department, the agreement as we will be hopefully seeking to have it certified before the Commission in due course. Together with that document, we also gave the employees a letter. One of the components of that letter, was notice that we are giving the employees 14 days notice of our intent to make that agreement and that it would be the intention of the company to have the agreement certified under section under section 170LK of the Act before the Commission.

PN42

THE SENIOR DEPUTY PRESIDENT: When was that letter sent out, Ms Hughes?

PN43

MS HUGHES: I beg your pardon, your Honour?

PN44

THE SENIOR DEPUTY PRESIDENT: When was that letter sent out?

PN45

MS HUGHES: Late last week.

PN46

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN47

MS HUGHES: Your Honour, we would also say that we have complied fully with section 170LK(3) of the agreement being employees having access to the agreement. As I said earlier, each and every employee was not only handed a copy of the proposed agreement and they are slightly different agreements but substantially the same between the testing employees and the emergency services employees. The letter that we issued also advises the employees that if they seek further copies where they can go and get access to those further copies.

PN48

We also say that we've complied fully with section 170LK(4) of the Act in that the letter quite clearly has advised the employees that should they require or request a representative of an organisation who has the right to intercede in their industrial interests, such as a union, that they have the right to have those people of that organisation meet and confer with the company for the purposes of trying to pursue an agreement. As at the time of this hearing, your Honour, it is fair to say that we have not received any such requests, certainly through the company, and in speaking to the employee delegate, Mr Snewin, I believe that he is also unaware of any such approach as to have the union represent anyone at this point in time.

PN49

Your Honour, obviously we are quite aware of our requirements under the Act and we understand that if the union or other organisation is so entitled is asked by any of our employees to represent them, then of course we will meet and confer and see where we go to from here. At this point in time, your Honour, we are in to our 14 day cooling off period. The employees have also been taken through the agreement in some detail and have had the opportunity to ask any questions such that some actually came back and put forward some other suggestions as to what they would like to have in the agreement which meant that we changed the document and then went through the reissuing of the process and also reissued the letters as we had amended the document, your Honour.

PN50

Your Honour, if the valid majority of employees at the expiration of the 14 day cooling off period for both the testing department and the emergency services department do agree to accept the offer put before them, then yes, we will be seeking certification before the Commission. If your Honour pleases.

PN51

THE SENIOR DEPUTY PRESIDENT: Thank you, Ms Hughes. Mr Deakin?

PN52

MR DEAKIN: Well, that the first bit of knowledge I've got about the company now going the track of a 170LK for one section of its company. I wanted to ask, is the company expecting the union to go down to 170LJ for the rest of the company? I'm a bit concerned from what I've heard - - -

PN53

THE SENIOR DEPUTY PRESIDENT: Mr Deakin, Ms Hughes is probably marginally more than 1 metre away from you. You don't need to actually ask her that question through me. If you want to ask her that question, I will adjourn this matter for a brief time and you can ask her. There's no great magic associated with doing this exercise through the Commission because the Act prescribes a process and I would have to say on the basis of what Ms Hughes has told me so far, it is difficult for me to identify any significant breach of the quite detailed process set out in section 170LK.

PN54

If the union and the employer want to have a discussion about another group of employees, feel free to do so but you need not do so through this forum.

PN55

MS HUGHES: Your Honour, if I may interrupt for a moment. During the course of my preamble I was referring specifically to the testing and to the emergency services department. We have been approached by our contracting employees as to whether or not they would like to - if the company would consider entering into an agreement direct with those employees. We hadn't done so to date because we really didn't think that it was going to get off the ground.

PN56

At this stage it was the testers and the emergency services employees who had indicated a willingness to go down this path. However, if the contracting employees wish to pursue a non-union agreement, then we are more than happy to comply with their request. Conversely if those employees wish to have the union represent their industrial interests, then again we will meet and confer, your Honour.

PN57

THE SENIOR DEPUTY PRESIDENT: Yes, thank you, Ms Hughes. I feel a bit like a telephone line, Mr Deakin, but there you have the answer to your question.

PN58

MR DEAKIN: Well, sir, I would disagree with what I just heard there, is that our guys have been saying that the company's approached them to go down to the agreement, not the other way around. I've got a bit of concern is that the way the company now is whitewashing the sequence of events that has taken place. So I put it on record, as far as I'm concerned right now, we've got enough on record to say that we would be opposing some of the stuff that comes through the Industrial Commission.

PN59

We would be going back to call a meeting of our people to actually identify what has been said here this morning and I will be taking a copy of the transcripts, sir, to the members so they can seen what has been said. Then we will be checking with a copy of that transcript so see if that is actually the situation. For the people to go down to 170LK, I would assure you, sir, that just shows you the pressure that has been brought to bear upon these workers who I said to you before is the most vulnerable of the whole lot.

PN60

It is amazing me right now that I hear being mentioned in front of your Honour the fact that they are now including the emergency testers where before those emergency testers were told quite categorically: you are not going to be part of this agreement, but if you do want to be part of the - and you won't have a vote, and if you do, right, we will let you be part of it later on. That is the sort of pressure that has been brought to bear upon the guys and obviously those emergency testers so they feel as though they have been left out in the cold and with nowhere to go.

PN61

They also now, as I've heard this morning, want to be part of that agreement. I would say that the copy of the transcript will be going out to some of the people in the company just to show what has been said, sir. I've done what I wanted to do this morning, is to put it on transcript and to hear the part so that this will go out to the people, so they can hear what has been said this morning or they can read what has been said this morning.

PN62

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Deakin. It is probably appropriate that I indicate that I think there are some messages for both parties in terms of the information provided to me this morning. As I've somewhat flippantly remarked, the primary message ought to be one that such that you don't have to be in a courtroom to have discussions. You can actually talk about these things on a face to face basis outside of a courtroom. Secondly, it is now clear to me that the employer has proposed a section 170LK agreement with respect to at least to a part of its workforce.

PN63

The onus then is on the employees to determine whether or not in accordance with section 170LK(5), those employees seek to enlist the assistance of either your union, Mr Deakin, or indeed any other union. if they do so, then there is a capacity built into section 170LK for the union to be given an opportunity to participate and to meet and confer in discussions toward that proposed agreement. If the section 170LK agreement is ultimately approved by a valid majority of employees and the union has members or a member or more in that work area, it can as I see seek to become bound to or a party to the agreement in accordance with section 170M of the Act.

PN64

There is no prohibition, as I see it, on the employer seeking separate agreements with different parts of its workforce. The extent to which those agreements have been validly sought to apply to those different parts of the workforce may be a matter of debate when the application for certification is made. Equally the extent to which the agreements comply with the requirements of the Act in terms of section 170LK or indeed section 170LJ is entirely a matter at this stage for the parties to consider.

PN65

It becomes a matter for the Commission to consider if and when an application for certification is made. Given that a bargaining period applies, given that it appears that the parties have the capacity at least to sit down and talk about these issues and that the Act envisages the potential for that bargaining period to be utilised by either party, I don't propose to take this matter any further today other than to suggest to the parties that since you are all here in the one room, it might be smart to actually use this opportunity to commence some discussions.

PN66

Sooner or later you will probably, that is on the law of averages, come up with a truce. It depends how much pain you want to go through between now and when you finally arrive at that truce. That is something that only the parties can determine. I will adjourn the matter accordingly.

ADJOURNED ACCORDINGLY [11.59am]