BP2003/966, Transcript of Proceedings [2003] AIRCTrans 3148 (22 July 2003)

AUSCRIPT PTY LTD
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Level 7, ANZ House 13 Grenfell St ADELAIDE SA 5000
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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT O'CALLAGHAN

BP2003/966
C2003/1816
C2003/1818

APPLICATION FOR TERMINATION
OF BARGAINING PERIOD

Application under section 170MW of the Act by
Safe Fire Electrical Pty Limited for an order to
suspend or terminate bargaining periods with CEPU
in BP2003/904 and BP2002/4827

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

and

SAFE FIRE ELECTRICAL PTY LIMITED

Notification pursuant to section 99 of the Act
of a dispute re alleged threat to dismiss employees
for engaging in protected industrial action

APPLICATION TO STOP OR PREVENT
INDUSTRIAL ACTION

Application under section 127(2) by Safe Fire
Electrical Pty Limited for an order to stop or prevent
industrial action by the CEPU, the union's delegates,
officers and organisers and by the employees of
Safe Fire Electrical Pty Limited

ADELAIDE

8.20 AM, WEDNESDAY, 9 JULY 2003

PN1

MR B. KLITSCHER: I appear on behalf of Safe Fire Electrical and, sir, with me is MR RON GOLDFINCH, Director of the Company.

PN2

MR W. DEAKIN: I appear on behalf of the CEPU Electrical Division. With me I have JASON WILDER.

PN3

THE SENIOR DEPUTY PRESIDENT: Now, this morning I have listed three separate applications. The application made pursuant to section 99 by the CEPU was made before I received the section 127 and section 170MW applications. The section 127 application and the section 170MW applications have been listed first and at this stage I propose to hear them first. I do that because the Act establishes in section 127 an obligation on the Commission to hear and determine a section 127 application as soon as it can practicably do so. Suffice to say though that in the event that there are issues that need to be considered relevant to the section 99 application, I trust that you will raise those with me, Mr Deakin, in the course of your submissions.

PN4

The reality is that I have a relatively limited time frame available this morning so that if we cannot conclude these matters this morning by 10 o'clock, we will need to re-list the matters. I have time available later today should that be necessary. On that basis, Mr Klitscher, you may proceed.

PN5

MR KLITSCHER: Thank you, sir. Sir, at the outset I have been advised by my client that two employees, indeed they are apprentices, Mr Trent Haines and Mr Aaron Hopkins, are in attendance in the Commission this morning. We seek that they be excused and be allowed to go back on the job. They are employed under a contract of training and as such should not be brought up in these matters.

PN6

THE SENIOR DEPUTY PRESIDENT: Mr Deakin?

PN7

MR DEAKIN: Sir, I would disagree with the representative for the employer, sir, because the reason one of the apprentices is here this morning is because he was one of the people that has been receiving abuse, intimidation and harassment.

PN8

MR KLITSCHER: I object to that, sir. It is an allegation.

PN9

THE SENIOR DEPUTY PRESIDENT: Very well. On that disputed basis I am not going to insist that any of the two employees leave the court room at this stage. That might be something that comes out of the proceedings but at this stage I will note the parties are in dispute over that question and we will need to establish or you will need to establish, Mr Klitscher, a basis, a solid foundation upon which I can exclude personnel.

PN10

MR KLITSCHER: Well, they are employed under a contract and training and are in breach of their contract at the moment by not being on the job.

PN11

THE SENIOR DEPUTY PRESIDENT: Yes, I understand there may well be an argument in that regard.

PN12

MR KLITSCHER: Sir, I want to take you through a history of enterprise bargaining between my client and the union and it is probably pertinent at this stage to hand up to you a copy of an agreement that was struck between the company and its employees and indeed, sir, certified by your good self in October of last year. The agreement was in place for a limited period of time. In fact it operated from 27 September 2002 until 31 January 2003. So I will hand that up.

PN13

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Klitscher, I won't mark this document as it appears to be a Commission document.

PN14

MR KLITSCHER: Sir, on 24 July 2002 the CEPU Electrical Division served a notice on the employer giving notice of authorisation to engage in industrial action. Sir, that notice cited a bargaining period notice BP2002/363 on 24 July.

PN15

THE SENIOR DEPUTY PRESIDENT: Do you have a copy of that notice, Mr Klitscher?

PN16

MR KLITSCHER: I do. The notice, sir - - -

PN17

THE SENIOR DEPUTY PRESIDENT: I will mark this document.

EXHIBIT #S1 FORM R41 NOTICE OF GIVING OF AUTHORISATION TO ENGAGE IN INDUSTRIAL ACTION FROM CEPU DATED 24/07/2002

PN18

MR KLITSCHER: Thank you, sir. Sir, that notice outlined the nature of the industrial action, protected industrial action, and they are listed there: the use of personal mobile phones, taking calls from the company on private phones, the carrying of company equipment, etcetera, etcetera. On 25 July my client received a facsimile from the CEPU and outlined the reasons, I suppose you could call it that, of the protected action. Funnily enough the content of the letter sent by fax talks about the proposed protected industrial action, even though there had been official notification that industrial action would take place and I hand that up.

EXHIBIT #S2 FACSIMILE ADVICE FROM CEPU TO SAFE FIRE AND ELECTRICAL DATED 25/07/2002

PN19

MR KLITSCHER: Sir, then on 5 September 2002 the CEPU lodged a bargaining period notice in the Industrial Relations Commission. The reference number is BP2002/4827 and it is the form R40. I would like to hand that up.

EXHIBIT #S3 NOTICE OF INITIATION OF BARGAINING PERIOD FROM CEPU DATED 05/09/2002

PN20

MR KLITSCHER: Sir, then on 24 September 2002 the CEPU issued a notice of intended industrial action quoting the bargaining period 2002/4827 saying that protected industrial action commenced on 15 October until the 16th and would result in a 24 hour stoppage of work. Sir, between the date of the bargaining period being lodged being 5 September 2002 to the notice of intended industrial action, some 20 days later, there was little or no dialogue between the union and the company.

PN21

THE SENIOR DEPUTY PRESIDENT: Presumably at or about that time the employees voted on the LK agreement that was certified on 3 October.

PN22

MR KLITSCHER: Correct. I would like to hand that one up.

EXHIBIT #S4 NOTICE OF INTENDED INDUSTRIAL ACTION FROM CEPU DATED 24/09/2002

PN23

MR KLITSCHER: Sir, then on 15 October 2002 another notice was issued by the CEPU of the giving of authorisation to engage in industrial action. That was dated 15 October. I hand that one up.

EXHIBIT #S5 NOTICE OF INTENDED INDUSTRIAL ACTION DATED 15/10/2002

PN24

MR KLITSCHER: Sir, on 31 January 2003 another notice was lodged by the CEPU of the giving of authorisation to engage in industrial action. This was dated 31 January and it quoted BP2002/4827, despite there having been an agreement between the employer and the employees, albeit expired at that date.

EXHIBIT #S6 NOTICE OF GIVING OF AUTHORISATION TO ENGAGE IN INDUSTRIAL ACTION AGAINST SAFE FIRE AND ELECTRICAL DATED 31/01/2003

PN25

MR KLITSCHER: Sir, on 14 February 2003 yet another notice of giving of authorisation to engage in industrial action under BP2002/4827, just that intended industrial action commence on 25 February through to 31 March. I hand those up.

EXHIBIT #S7 NOTICE OF GIVING OF AUTHORISATION TO ENGAGE IN INDUSTRIAL ACTION DATED 14/02/2003

PN26

MR KLITSCHER: Sir, again on 25 March 2003 another notice giving authorisation to engage in industrial action was lodged by the CEPU once again under BP 2002/4827 and I will hand that up.

EXHIBIT #S8 NOTICE OF GIVING OF AUTHORISATION TO ENGAGE IN INDUSTRIAL ACTION ON THE PART OF THE CEPU AGAINST SAFE FIRE AND ELECTRICAL DATED 25/03/2003

PN27

MR KLITSCHER: Sir, on 8 April the CEPU then lodged a notice of initiation of a bargaining period, form R40, and that is reference number BP2003/904.

EXHIBIT #S9 NOTICE OF INITIATION OF BARGAINING PERIOD FILED PURSUANT TO RULE 58 AGAINST SAFE FIRE AND ELECTRICAL BY CEPU DATED 08/04/2003

PN28

MR KLITSCHER: Sir, on the same date, 8 April 2003, the CEPU lodged a notice of giving of authorisation to engage in industrial action. That notification was based on the BP2003/904.

EXHIBIT #S10 NOTICE OF GIVING OF AUTHORISATION TO ENGAGE IN INDUSTRIAL ACTION DATED 08/04/2003

PN29

MR KLITSCHER: Sir, on 29 April 2003 the CEPU lodged another notice of the giving of authorisation to engage in industrial action. This one, however, used the BP2002/4827. That is covered by a facsimile from the CEPU to Safe Fire and Electrical.

EXHIBIT #S11 NOTICE OF THE GIVING OF AUTHORISATION TO ENGAGE IN INDUSTRIAL ACTION DATED 29/04/2003

PN30

MR KLITSCHER: Sir, on 21 May 2003 the CEPU faxed my client calling for a meeting between it and a number of other companies for the purposes of developing an EBA for the fire protection industry. I would like to hand that up.

EXHIBIT #S12 FACSIMILE ADVICE FROM CEPU TO SAFE FIRE AND ELECTRICAL AND OTHER COMPANIES DATED 21/05/2003

PN31

MR KLITSCHER: Sir, you will note in that particular fax the meeting was planned for 23 May 2003.

PN32

THE SENIOR DEPUTY PRESIDENT: Yes.

PN33

MR KLITSCHER: Sir, on 22 May Safe Fire and Electrical replied to the fax of the previous day from the CEPU and I would like to hand that up.

EXHIBIT #S13 FACSIMILE ADVICE FROM SAFE FIRE AND ELECTRICAL TO THE CEPU DATED 22/05/2003

PN34

MR KLITSCHER: Sir, then on 1 June the CEPU lodged a notice of giving of authorisation to engage in industrial action underpinned by BP2002/4827. That called for a mass meeting at 7.30 am on Friday, 6 June. I will hand that up.

PN35

THE SENIOR DEPUTY PRESIDENT: Just before you do, Mr Klitscher, so that I follow the chronological sequence, do I take it then that the meeting of 23 May did not proceed?

PN36

MR KLITSCHER: It did proceed.

PN37

THE SENIOR DEPUTY PRESIDENT: It did proceed?

PN38

MR KLITSCHER: Sorry, I - it did proceed.

PN39

THE SENIOR DEPUTY PRESIDENT: There's no record of that meeting that you are going to give me?

PN40

MR KLITSCHER: We are not in possessions of any record.

PN41

THE SENIOR DEPUTY PRESIDENT: Thank you.

EXHIBIT #S14 NOTICE OF GIVING OF AUTHORISATION TO ENGAGE IN INDUSTRIAL ACTION ON THE PART OF THE CEPU AGAINST SAFE FIRE AND ELECTRICAL DATED 01/06/2003

PN42

MR KLITSCHER: Sir, on 6 June 2003 another notice was lodged by the CEPU giving authorisation to engage in industrial action under BP2002/4827. We are getting towards the end of these exhibits, your Honour.

EXHIBIT #S15 NOTICE OF GIVING OF AUTHORISATION TO ENGAGE IN INDUSTRIAL ACTION ON THE PART OF THE CEPU AGAINST SAFE FIRE AND ELECTRICAL DATED 06/06/2003

PN43

MR KLITSCHER: Sir, on 30 June 2003 another notice of giving of authorisation to engage in industrial action was lodged by the CEPU under BP2002/4827, the immediate industrial action to take place on Tuesday, 8 July running through to 30 September 2003.

EXHIBIT #S16 NOTICE OF GIVING OF AUTHORISATION TO ENGAGE IN INDUSTRIAL ACTION BY CEPU AGAINST SAFE FIRE AND ELECTRICAL DATED 30/06/2003

PN44

MR KLITSCHER: Sir, as I said when I handed up that exhibit, the BP number on there is number 4827 of 2002, despite the 2003/904 having been issued by the union. So that notice which was served on 30 June was received by my client on 2 July 2003. The first industrial action that took place on Wednesday, 2 July 2003, the nature of this industrial action to the employees who have a mix of their own private phones and company phones, the private phones all calls are paid by - reimbursed by the company. The employees have refused to answer calls on the mobile phones whilst on the job, they have refused to take calls to go to another job, etcetera.

PN45

THE SENIOR DEPUTY PRESIDENT: You say that action commenced on 2 July?

PN46

MR KLITSCHER: It did indeed.

PN47

THE SENIOR DEPUTY PRESIDENT: Do you understand that action to be the action identified in S16?

PN48

MR KLITSCHER: Well, I guess my friend is going to have to answer that but I will come to that reference later, your Honour. I just want to keep going through the chronological list of events so that we can paint the picture.

PN49

THE SENIOR DEPUTY PRESIDENT: Yes, by all means.

PN50

MR KLITSCHER: On Thursday, 3 July, the bans continued, the employees still refused to answer the phones. On Friday, 4 July, one of the supervisors went on site and then telephoned my client, Mr Goldfinch, in which turn Mr Goldfinch then was able to talk to the employees or at least one of the employees. At that juncture my client expressed his concern to the employee that the action that they were taking, in his view, was illegal on advice he had received and they should cease taking the action and explained the reasons why his belief was that the action was illegal or certainly not protected action.

PN51

THE SENIOR DEPUTY PRESIDENT: Which employee was that, Mr Klitscher?

PN52

MR KLITSCHER: Can I ask Mr Goldfinch - - -

PN53

THE SENIOR DEPUTY PRESIDENT: Yes, well, perhaps he can tell you and you can pass it on to me.

PN54

MR KLITSCHER: It was Mr Panese. During that conversation my client advised the employee, Mr Panese, that he would have to take whatever legal action was appropriate if they refused to lift their bans. Sir, I do have to say to you that on 1 July, going back 3 days before that - prior to that conversation, a meeting took place between the employer and his employees. There was no union official in attendance.

PN55

THE SENIOR DEPUTY PRESIDENT: This was 3 July?

PN56

MR KLITSCHER: 1 July.

PN57

THE SENIOR DEPUTY PRESIDENT: 1 July.

PN58

MR KLITSCHER: There was no union official present. The employees expressed their desire to get the union in to negotiate on their behalf which was acceptable to the company, of course. Having said that, on Wednesday, 2 July, they changed their minds and decided to take the industrial action. Apart from that one meeting that was held between a number of fire protection companies and the union the company has not had any approach from the union officials in respect to the myriad of bargaining period notices and the notices of giving of authorisation to engage in industrial action.

PN59

Sir, when we talk about negotiations for an enterprise agreement and the protections for both sides that go along with that when there's a bargaining period in place, of course before any protected action may be taken it is essential that there be negotiations between the parties. If this does not occur and despite compliance with all the requirements, and I'm not suggesting that all the requirements have been complied with by the union, any industrial action will not be protected. We say it is not enough to engage in superficial negotiations. Indeed section 170MP of the Act requires that before engaging in industrial action an employer, employee and/or the union intending to engage in such action must have genuinely tried to reach agreement with the other and if the Commission has made an order in relation to negotiations they have to comply with that order.

PN60

Sir, I guess as to the matters to be taken into account in determining whether the parties have been genuinely trying to reach agreement we should have a look at AIG v AFMEPKIU and Others in print T1982, Munro J on 16 October 2002. We say that decision really lays down the tests and the guidelines.

PN61

THE SENIOR DEPUTY PRESIDENT: What print number was that again?

PN62

MR KLITSCHER: Print T1982.

PN63

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN64

MR KLITSCHER: Sir, if we go to the last notice of intention to take protected action which was on the date of 30 June 2002 in S16 which my client received on 2 July and assuming that there is a valid bargaining period in place and we say the reference number BP2002/4827 on that notice is not a valid bargaining period notice, the party intending to take the protected action must give the other party 3 clear working days' written notice of intention to do so. We say that that notice must meet certain requirements of the Act and the failure to do so will render the action taken unprotected.

PN65

Further, any action engaged must be for the purposes of supporting or advancing claims in respect of the proposed agreement. Sir, we say that that notice dated 30 June is not a valid notice. We say that the bargaining period sighted on that notice is not a valid bargaining period. They basically say that the industrial action taken by the employees, commenced to be taken by the employees, is indeed unprotected action. We seek from you this morning orders that that protected action or that action stop.

PN66

In respect to the application under section 170MW, if we can resolve the industrial action satisfactorily here today my instructions are that we ask the matter under section 170MW to be adjourned pending an equitable and proper outcome of the proposed negotiations between the parties. I want to make it very clear to the Commission that my client wants to negotiate. He wants to reach agreement between himself and the employees. He acknowledges that the employees wish to have the union involved and is more than willing to sit down with the union and have meetings and negotiations to seek an outcome.

PN67

By what we are seeing we say, sir, is not only a hint of pattern bargaining in all of this but we say that the issuing of notices, both bargaining periods and industrial action, is totally rampant, ill-conceived and illogical. There have been no negotiations between the union and the company and we say that there's no provision in the Act once a bargaining period has been lodged by the union for the employer to respond to that. The union having lodged various bargaining period notices has not then followed up by seeking negotiations and meetings with the employer, in this case Safe Fire Electrical.

PN68

THE SENIOR DEPUTY PRESIDENT: Mr Klitscher, so that I can understand what it is you are putting to me, can I put it in my words and give you the opportunity to tell me whether I properly understood it. It appears to me that you are saying that you want the section 127 order to be given but that notwithstanding the lodgment of the section 170MW application to terminate the 2003 bargaining period you are proposing that that application may in effect be deferred to allow discussions to occur which would appear to have inherent in it the possibility that industrial action could be taken in a protected sense pursuant to that 2003 bargaining period.

PN69

MR KLITSCHER: Well, if that is the case, sir - - -

PN70

THE SENIOR DEPUTY PRESIDENT: I'm just trying to clarify what it is you are telling me.

PN71

MR KLITSCHER: We certainly want to give it every chance to succeed, to get an agreement up. My client wants to get on with his business. He wants employees to get on with their work and if that means making an agreement so be it, happy to do that. Let us sit down and make the agreement. Let us not have all this nonsense of issuing of notices and employees, we say, taking action which places them at risk legally. Let us do it properly. Let us sit down and let us use the provisions of the Workplace Relations Act in relation to enterprise bargaining for what it was meant for, have some meaningful negotiations to reach agreement. I mean, it is not impossible. There has already been one agreement reached so it is not an impossible task.

PN72

THE SENIOR DEPUTY PRESIDENT: The dilemma that I'm grappling with is that if the section 127 order is granted in the terms of the application it would appear on my read of it to limit the CEPU and its members' capacity to take protected industrial action pursuant to the 2003 bargaining period. Now, have I correctly understood that?

PN73

MR KLITSCHER: Limit their power?

PN74

THE SENIOR DEPUTY PRESIDENT: Well, it is an - the order that is sought pursuant to section 127 seeks to apply for a period of 12 months and it purports to require that the current industrial action cease. It purports to in effect limit the delegates, officers and organisers of the CEPU from inciting or encouraging any employees of Safe Fire and Electrical to fail or refuse to attend for work and/or to perform work as required, being industrial action for any purpose arising out of or in relation to any dispute or claim to make an agreement under provision 2 or 3 of part VIB of the Act.

PN75

MR KLITSCHER: Yes.

PN76

THE SENIOR DEPUTY PRESIDENT: Now, the issue that I'm endeavouring to appreciate properly is in effect the employer's view about the possibility of protected industrial action that might be taken as the Act appears to provide or envisage it could be taken under the 2003 bargaining period notice in the event that discussions that you have indicated you would like to have don't resolve in a satisfactory outcome. I'm just endeavouring to understand what the employer's position is in relation to that possibility. I'm not recommending it but I'm endeavouring to appreciate the employer's position on it.

PN77

MR KLITSCHER: I thank the Commission for its indulgence. Sir, my instructions are that the dilemma as outlined by yourself is recognised by the employer and my instructions are that we pursue the section 170MW notice. He is not confident they are going to - that the company and the employees and the union are going to reach agreement unless certain things happen, in which case if we pursue the section 170MW application - we are pursuing that, then I guess the section 127 application might be better dealt with afterwards.

PN78

THE SENIOR DEPUTY PRESIDENT: That is the Commission's normal approach, Mr Klitscher, that the issue of the termination of a bargaining period is generally dealt with prior to consideration of section 127.

PN79

MR KLITSCHER: Sure, okay. Well, I will continue my submissions on that basis. Sir, we say in support of our application to end the bargaining period, we say there's been no demonstration by the union and latterly by the employees of the company to bargain in good faith. Sir, as I've already pointed out, the elements to be present in reaching an agreement under the bargaining period is for both parties to sit down and go through the issues and try and resolve them and hopefully, at the end of the day, reach agreement.

PN80

Since the agreement which was certified by this Commission in October and run through to the end of January, since that time there has been no show of genuine bargaining on behalf of the union. The union has not, other than the one meeting with the industry, has not attempted to meet with the employer in relation to its bargaining period notice that it lodged. Obviously it is seeking an agreement. We say that that can hardly be genuine. Indeed, sir, we say it is pattern bargaining, which is not viewed well by this Commission in respect of pattern bargaining.

PN81

It is clear what the union is trying to do; it is trying to rope all the companies in the industry into having the same agreement. In fact, even to the extent that when the very first bargaining was noticed, it was noticed with the comment "Sign this or there'll be trouble". That is not genuine bargaining.

PN82

THE SENIOR DEPUTY PRESIDENT: I do need to make the wry observation that pattern bargaining appears to be a practice that both employers and union engage in from time to time.

PN83

MR KLITSCHER: Well, it certainly may be, but the essential elements of those instances where agreements have been approved by the Commission has been done because the parties at a higher level have reached agreement that that is the way they want the industrial relations regime on a particular project. We are not talking about that in this matter; we are talking about a company that has been deluged with notices which we say are not relevant any more. It has allowed its members to take industrial action which we say is unprotected. There is no intention been made clear by the union to my client that it wishes to genuinely reach an agreement.

PN84

THE SENIOR DEPUTY PRESIDENT: Mr Klitscher, is there an agreement proposal that has been provided by the union to Safe Fire and Electrical?

PN85

MR KLITSCHER: Only that which is in the notices which I've handed up to you this morning.

PN86

THE SENIOR DEPUTY PRESIDENT: And has the employer put an agreement proposal on the table in draft form?

PN87

MR KLITSCHER: No.

PN88

THE SENIOR DEPUTY PRESIDENT: Can I take it that, given that meeting of 1 July 2003 between management and Safe Fire and Electrical and its employees and the fact that the 2002 agreement was a section 170LK agreement, that there is no section 170LK proposal on the table?

PN89

MR KLITSCHER: There is not.

PN90

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN91

MR KLITSCHER: Sir, that is really my submissions in support of the section 170MW application. To precis it, it really means there has been no genuine bargaining; there is no prospect of genuine bargaining in what we've seen coming from the CPU and its members and on that basis we say that there ought not to be a bargaining period in place. And I'm not saying that the company is unwilling to sit down and negotiate. It certainly is but it wants that to happen without the coercion, without the threats that have been a hallmark of this affair, if you like, since about July last year.

PN92

THE SENIOR DEPUTY PRESIDENT: Yes, one last question, Mr Klitscher and at this stage I need to indicate I'm simply restricting my consideration to the section 170MW application. If the employer's position is that it does genuinely seek an agreement with its employees and/or with the union and the bargaining period, that is the 2003 bargaining period is terminated, then what do you say to me about the extent to which the employer recognises that might well prejudice or impact on the negotiating capacity of the employees?

PN93

MR KLITSCHER: Of course, there does not have to be a bargaining period in place for an agreement to be reached. That is an option used by either party if they wish to do so, but there's no requirement in the Act for a bargaining period to be in place to negotiate an enterprise agreement. Indeed, I've had extensive exposure to enterprise agreements, certified enterprise agreements in the Federal sphere of which about 70 per cent are negotiated without a bargaining period so the success rate is pretty high.

PN94

THE SENIOR DEPUTY PRESIDENT: Yes. Thank you, Mr Klitscher. Mr Deakin?

PN95

MR DEAKIN: Sir, every time I seem to come to the Industrial Commission I always feel as though I've got horns growing out of my head and the wings are starting to show on the employers.

PN96

MR KLITSCHER: If the Commission pleases, I didn't make any personal remarks about that, for the record.

PN97

MR DEAKIN: Well, you did make some personal remarks as far as we are concerned and I will go through them later on.

PN98

THE SENIOR DEPUTY PRESIDENT: Mr Deakin, if it helps at all - - -

PN99

MR DEAKIN: The chronological order of the - - -

PN100

THE SENIOR DEPUTY PRESIDENT: If it helps you at all, Mr Deakin, I don't see any horns today.

PN101

MR DEAKIN: Yes, thank you sir. If you look at the - I was going to present the same submissions to you, sir and I don't think it is necessary because you have got them in front of you now, all the notices - - -

PN102

THE SENIOR DEPUTY PRESIDENT: The same submissions as those that Mr Klitscher presented?

PN103

MR DEAKIN: Yes sir, the notices of - - -

PN104

THE SENIOR DEPUTY PRESIDENT: The same conclusions, Mr Deakin?

PN105

MR DEAKIN: Not quite, not quite. It is the same paperwork and chronological order of our Notice of Protected Action. All through this you can see sir, even going back to the first one in July last year and that was the submission 1 put forward by the employer, there's always been an attempt to seek an agreement with the employer. What happened was in September we then took an industry campaign on board and the Safe Fire Electrical guys were parties to it because we've made so many telephone calls to Mr Ron Goldfinch about sitting down with them and negotiating a document. It came to a point where he wouldn't even answer our telephone calls. We tried to pass that message on to the guys because they were saying to us "What's happening with our agreement?".

PN106

THE SENIOR DEPUTY PRESIDENT: Mr Deakin, as of 27 September 2002, Safe Fire and Electrical were party to an agreement certified in the Commission.

PN107

MR DEAKIN: Yes sir. Going on to that one, sir, this is what was happening as far as trying to get negotiations going with Mr Ron Goldfinch. We were talking with our guys in the company, the employees of the company, going into an industry campaign. Mr Ron Goldfinch refused to talk with the union and spoke to the workers, unbeknown to us, to go down the track of a 170LK. We were still serving notices because we were serving at the same time 70 other companies or 69 other companies about going into an industry agreement.

PN108

Unbeknownst to us that Mr Ron Goldfinch, who is now sitting here saying he wanted to meet with - he was prepared to meet with us, he refused to meet with us, sat down with the guys, talked about section number 170LK. What happened there is that we didn't demand that these guys take pattern industrial action because we just notified all the companies to start negotiations.

PN109

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Deakin.

PN110

MR DEAKIN: It was only when we started to serve our notices again in the February that - and it was on the initial number of 2847 is that the guys came up to us who had now finished their short-term enterprise agreement, came up to us and instructed us that they had been talking to the boss. The boss is threatening to sack - sorry, in February - threatening to sack them if they take industrial action because the action is unprotected. And we said no, it isn't, now knowing that they had already signed and been into a 170LK.

PN111

In the March we were talking with the guys and they said: well we did a 170LK with the company, and on that basis we said: well okay, well look the action is unprotected, don't be part of the industrial action, you can't take part in it. We instructed them not to and we've got the people here this morning to be witness to that, sir, if we need to. We then served in the April the new protected action, the new bargaining period which was - and that was on 8 April and also the industrial action, protected action that was going to be on the same day that wouldn't be taken as from 23 April.

PN112

In other words, sir, we made sure that these people did not take any industrial action whatsoever until that time period was in that they could be part of the industry agreement. In the mean time we had still tried to make contact with Mr Ron Goldfinch about sitting down and talking with us. It was like trying to contact somebody on the moon because our telephone calls were not being returned. What happened then on 29 April, and I think that is when the mistake has happened - sorry, the next one was on - yes, 29 April when we served them another notice.

PN113

That is when it came off the computer and they picked the wrong bargaining period number but I put to the Commission that there is a bargaining period in, a notice of bargaining period in. There is a notice of protected action. Sir, the only thing there was a mistake on the number. We have complied with the Act in every other way. We have attempted with the company to sit down and negotiate with them. They have not responded whatsoever and this could be shown in the fact that he went out of his way to do a 170LK with his employees to exclude the union.

PN114

He is now here trying to tell us that he has been prepared to sit down and negotiate with the union all the way through. He turned up to the meeting on 23 May when we talked about - - -

PN115

THE SENIOR DEPUTY PRESIDENT: Well, Mr Deakin, perhaps I need to stop you there. The 170LK agreement was certified by myself on 27 September 2002.

PN116

MR DEAKIN: Yes.

PN117

THE SENIOR DEPUTY PRESIDENT: Are you advising me that the union was denied access to its members in that regard?

PN118

MR DEAKIN: Yes, sir. We were not aware of it.

PN119

THE SENIOR DEPUTY PRESIDENT: Are you advising me that any of the employees sought that the union be involved in the discussions but that request was denied?

PN120

MR DEAKIN: I'm not quite sure what went on, sir. I really don't know. We were negotiating or attempting to negotiate with the company up to that point in time. What was going on at that point in time in May, a number of companies are out there trying to keep their employees out of the industrial campaign. They was offering them a 3 per cent agreement for a short term to keep them out of the industrial campaign so that when the industrial campaign is over then everybody would jump in on the same rates.

PN121

This was what was transpiring out there. It was only later on in the day, because we weren't having direct contract with the guys in there, that they then informed us that they had done an agreement for a short term up until about the January I think it was or the March, I'm not quite sure. So never once did they actually take industrial action while they had the EBA in place but we were not informed by the company that they intended or by the employees who are sitting here this morning, sir, that they done a 170LK. We were oblivious of it.

PN122

So when we did become aware of it, and that is when the first notice of industrial action we was talking about was in the March, Mr Ron Goldfinch approached these guys and said: if you take industrial action you're sacked because it's not protected and we'll get our lawyers on to sue you. The guys came to us with major concerns about this threat was being thrown at them. We then went back and asked them a question: why, because the protected action has been in since September. And they said: well we went and did a 170LK. We said to them: do you not understand what you've just done, a 170LK? Why weren't we involved?

PN123

They said: well the employer just said it's just for a short term, we will give you the rates that you are asking, we don't want any panic and pain so we just thought we'd do the right thing because you would not have that agreement in place before January. So they thought the union wouldn't have had an agreement in place for at least 1 January. So they were prepared to go into a short-term agreement until the union had achieved that and then would come under the industry agreement. We then had to inform them it just does not work that simple because now it has been pointed out to us you have got no protected action.

PN124

We immediately pulled them out before they took part in any industrial action. We notified that they couldn't be part of any industrial action until we had actually served a new notice and we told them that the employer was right because of what you have done. We then served - and that is how we came about serving a new notice of bargaining period and a new protected action, simply because the company was still refusing to talk to us. We asked the guys, informed the guys - - -

PN125

THE SENIOR DEPUTY PRESIDENT: So that I've got the sequence right, this would be the document I called S9, that is the notice of initiation of bargaining period dated 8 April 2003?

PN126

MR DEAKIN: Yes, sir. So that is the one we did and that is the reason we did it and we also then put the protected action in. We tried to make contact with Ron Goldfinch.

PN127

THE SENIOR DEPUTY PRESIDENT: Well, just before you go any further, in terms of your chronology of events, having served the notice of initiation of bargaining period on 8 April at what point were the union's claims detailed to the employer?

PN128

MR DEAKIN: It was on - the claims of the employer, that part - yes. That was on that notice, sir, the notice of initiating a bargaining period, a minimum of $27.50 per hour, $20 a day fares and travel, income protection through Protect $60 a week severance scheme, 36 hour week, car-parking fees while working in the city limits, industry standard project conditions allowances. So we notified them that the was claim. We've attempted through the employees and ourselves to contact Mr Ron Goldfinch to set up and sit down and talk to us about an industry agreement.

PN129

The only time he has ever responded to us is when we called all the employees in to an industry meeting to talk about an industry standard agreement. When we talk about industry agreement it means a framework agreement. In some cases it is a patent agreement but in many cases it is a framework agreement. That is the only time has he ever responded to anything that we did whatsoever and then from after 8 April, the next lot of notices that went out - - -

PN130

THE SENIOR DEPUTY PRESIDENT: That was the May meeting?

PN131

MR DEAKIN: Yes, sir. He attended that meeting to our surprise but never anything before or after that. We then went from there and then the mistake was made when pulling the notices off the computer that there was a mistake made on picking up the wrong number. Sir, we would say that we are still working within the bargaining period. We were still doing or attempting to do - well not attempting but actually working within the intent of the notices as if we had the right number. It is a technicality rather than a deliberate attempt to avoid complying with the Act.

PN132

That is the only thing that the union is guilty of at the moment and it is just a minor mistake as far as we are concerned or we believe, I should say, because the bargaining period had been issued. It is just put on the wrong number. The actions taken by the employer all through this has been really poor. One, they've never attempted to talk to us. Just back a little bit, having served that notice on 29 April with the wrong number, we are now in July and never once, never once all through that time has this company or Business SA raised the issue that there is an error on our application, on the number for the protected action and the notice of bargaining - well on the protected action since the bargaining period was served.

PN133

So for the company to stand here all high and mighty to say that the action is not protected, we would disagree with that, sir. We would strongly disagree with that simply because there is a bargaining period here.

PN134

THE SENIOR DEPUTY PRESIDENT: Mr Deakin, you have said on a number of occasions that the union has attempted to discuss its claims with the employer.

PN135

MR DEAKIN: Yes.

PN136

THE SENIOR DEPUTY PRESIDENT: How have those attempts been made?

PN137

MR DEAKIN: By telephone, sir. The work-force has notified the company that they want to talk about the enterprise agreement you have got to go through the union. Any discussions we have about the enterprise agreement, you have got to go through the union. The employees are now made aware the mistake they made last time and the confusion it has caused and are determined to say, well, this time we are not going to go down that track and every discussion that they have had concerning the industrial action, the employees themselves have said, well, go and talk with the union and the employer has never once tried to contact us.

PN138

Now, when you talk about trying to raise an agreement, it takes two parties. We believe if you, sir, was of the opinion that industrial action should be lifted, it would take away any power that the guys have to reach what they believe a fair outcome on an enterprise agreement simply because of the actions of the employer up until today and it goes without saying it is not what he says and talks about he is prepared to do it is what he has done in the past and he has refused to answer our telephone calls. We have left messages for him. He will not even respond.

PN139

He has never once attempted to resolve these industrial actions, to sit down and negotiate an outcome. We have the employees here this morning and they can confirm everything we are saying. Never once, and as I said before, he has only ever attempted to turn up to one meeting that we had and that was when we talked about an industry agreement. Now, he is talking about the unions patent bargaining and I will say patent bargaining is not illegal, it is an industry minimum standard that we want to set. We do have framework agreements where the main points and the points of our log of claims is the basis but we do have variations to those for the different companies, for different areas.

PN140

So we would say, sir, that the case being put forward by the employer is a sure attempt to try and put the employees on the back foot by picking up one minor, I would say, we believe, one minor detail of the protected action. It has been registered in the Industrial Commission and we've gone through all the right processes. It was only brought to our attention quite recently, especially once we put the proper notice of protected action in and bargaining period and then from there on it seemed to - we picked up the wrong number again on the notices but that was never brought to attention, never.

PN141

Even all the other times that we sat down and we've gone now nearly 3 months and here we are just raising it today. Why wasn't it raised on the first protected action that came through? They are looking for ways around avoiding sitting down and talking with the union and taking away any power that the workers have to come to a good outcome in the negotiations. So we would oppose any lifting of our protected action simply because of the employee's actions. We can stand here all day and say how good we are or how bad we are but it is only the proof is in the pudding is what has gone on in the past.

PN142

THE SENIOR DEPUTY PRESIDENT: Well, I will give you a chance to say how good or bad you are to a greater extent now, Mr Deakin.

PN143

MR DEAKIN: I've got a bit of - - -

PN144

THE SENIOR DEPUTY PRESIDENT: Can I refer you to exhibit S16? Do you have that one?

PN145

MR DEAKIN: Yes, sir.

PN146

THE SENIOR DEPUTY PRESIDENT: That was a notice of intention, a notice of the giving of authorisation to engage in industrial action.

PN147

MR DEAKIN: Yes.

PN148

THE SENIOR DEPUTY PRESIDENT: It refers to section 170MR(1). It is dated 30 June 2003. The employer says it was received on 2 July 2003. It talks of bans being in place from the normal starting time on 8 July 2003. Leaving entirely aside for one moment the fact that the notice reference is BP2002/4827, can you tell me whether the bans that were foreshadowed in that notice were implemented?

PN149

MR DEAKIN: Implemented?

PN150

THE SENIOR DEPUTY PRESIDENT: Yes. Did they come into effect?

PN151

MR DEAKIN: On 8 July?

PN152

THE SENIOR DEPUTY PRESIDENT: No, no, I'm simply asking at this stage that you look at the document S16, about three-quarter of the way down the first page are the words "the following bans will apply."

PN153

MR DEAKIN: Yes.

PN154

THE SENIOR DEPUTY PRESIDENT: Underneath that line there are a series of dot points. They commence with the words "no paperwork including CIC forms" and they conclude on the second page with the words "no country work." Somewhere in the middle of that document are the words "no use of company mobile phones and no use of personal mobile phones for company business."

PN155

MR DEAKIN: Those are the bans, yes, sir.

PN156

THE SENIOR DEPUTY PRESIDENT: Did any of those bans come into effect?

PN157

MR DEAKIN: Yes, sir.

PN158

THE SENIOR DEPUTY PRESIDENT: Which ones came into effect?

PN159

MR DEAKIN: All from 8 July.

PN160

THE SENIOR DEPUTY PRESIDENT: I'm sorry, all of those issues?

PN161

MR DEAKIN: Yes.

PN162

THE SENIOR DEPUTY PRESIDENT: And they came into effect on 8 July?

PN163

MR DEAKIN: Yes, sir.

PN164

THE SENIOR DEPUTY PRESIDENT: They didn't come into effect before 8 July?

PN165

MR DEAKIN: Not that I'm aware of, no. Yes, yes, we did. Sorry, sir, we did because on the previous notice those same bans were already in place. If you go back to S15, all those bans were already in place. What we've done, attempted to do, sir, is not stop or start anything. It is just we wanted to add to those existing bans and limitations the stop-work notices. The report-back meetings of Monday 14 July, Monday 14 August.

PN166

THE SENIOR DEPUTY PRESIDENT: I'm sorry, this is a report-back meeting the union had with its members.

PN167

MR DEAKIN: Yes, sir. What we did was reiterate those existing bans and limitations that we already had in place and added to them the notices of stoppages will occur from, and the report-back meetings that was on submission 16 by the employer.

PN168

THE SENIOR DEPUTY PRESIDENT: In which case can I ask you to look at S15 and can you tell me whether or when all or any of the bans listed in that document came into effect?

PN169

MR DEAKIN: From the date - we would have to go back to the next one to see if there's any difference in them, sir, because - - -

PN170

THE SENIOR DEPUTY PRESIDENT: Well, I'm focused on advice from you about when bans came into effect. I'm not focused at this stage on the documents. I'm asking when the bans that you have indicated will apply in S15 from the normal starting time on 13 June 2003 came into effect.

PN171

MR DEAKIN: On that notice, from 13 June.

PN172

THE SENIOR DEPUTY PRESIDENT: Perhaps we are not understanding each other properly. You are referring to the notice. I'm asking you when in reality those bans came into effect. When did people stop installing or removing temporary wiring?

PN173

MR DEAKIN: About 2 July, sir. The actual guys - the notice was in on that period but they didn't start taking part until July.

PN174

THE SENIOR DEPUTY PRESIDENT: I see, thank you. Yes, thank you, Mr Deakin.

PN175

MR DEAKIN: Thank you, sir.

PN176

THE SENIOR DEPUTY PRESIDENT: Is there any other evidence you want to present to me relative to the section 170MW application?

PN177

MR DEAKIN: No, sir, because we were going to present to you the same notices that the employer has put forward to you but I strongly put to - - -

PN178

THE SENIOR DEPUTY PRESIDENT: Well, I'm absolutely in your hands at this point. I can indicate to you that from what I've heard so far it is likely that I will need to take this matter away and think about it and I'm inviting you to give me any other evidence relevant to the section 170MW application that you consider to be appropriate.

PN179

MR DEAKIN: Inappropriate?

PN180

THE SENIOR DEPUTY PRESIDENT: Appropriate.

PN181

MR DEAKIN: There's only one - no, sir. I mean the evidence presented is that the only thing that the employees have done or the only mistake that has been made is the error on the number on the notice of protected action. Everybody has worked within that period within the action. We've been making sure of that. We've been very careful not to step outside that protected action. So it really comes down to one issue, whether the mistake on the numbers would be serious enough to be seen to be - to warrant lifting of our protected action. We ourselves would believe it wouldn't be simply because we did notify and we have served on the Commission the new bargaining period, new protected action and then nobody has picked it up until now that that is the number.

PN182

I present to you, sir, we have definitely tried on many occasions to talk with the company and he has refused. He has not refused verbally because he has never returned our calls. He has made it quite clear by his actions in the past of seeking a 170LK that he didn't want the union involved.

PN183

THE SENIOR DEPUTY PRESIDENT: Yes. We've been there and addressed that. I need to tell you at the outset as you would be well aware from other matters before me, Mr Deakin, my practice is sometimes to the chagrin of the parties to ask various questions of them before approving a section 170LK agreement. This agreement would not have been approved if there was an inkling that the employer had not complied with the quite strict prerequisites set out in section 170LK. One of those prerequisites is such that if an employee seeks the involvement of a union then the employer needs to extend to the union the opportunity to meet and confer relevant to the proposed agreement. I repeat again are you suggesting to me that an employee made that request and was denied that opportunity?

PN184

MR DEAKIN: Yes, sir.

PN185

THE SENIOR DEPUTY PRESIDENT: Well, then you will need to produce - - -

PN186

MR DEAKIN: On many occasions, sir.

PN187

THE SENIOR DEPUTY PRESIDENT: You will need to produce some evidence if I'm to take that into account, Mr Deakin.

PN188

MR DEAKIN: Well, we can put the people in the witness box.

PN189

THE SENIOR DEPUTY PRESIDENT: What you do is your business. I am simply indicating to you that you are making an allegation and I simply don't have any information before me to support it.

PN190

MR DEAKIN: I would seek to put some of the employees into the witness box, sir, to cross-examine them.

PN191

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Deakin.

PN192

MR DEAKIN: It will be short.

PN193

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Deakin. You call who it is you want to call.

<JOHN SAYERS, SWORN [9.45am]

<EXAMINATION-IN-CHIEF BY MR DEAKIN

PN194

MR DEAKIN: John, Mr Sayers, have you at any point in time notified your employer Mr Ron Goldfinch that you wished to have the union present or party to an enterprise agreement?---Well, this one and the last one.

PN195

Pardon?---For this one, yes, this one, yes.

PN196

You have?---Yes.

PN197

And on many occasions?---We don't really get to speak to Ron. We can't even - we can't even get to call him. He's always too busy or we can't make a call with him but we tell Dave. We always see our supervisor on site. Every time he comes to tell us we tell him: speak to the union.

PN198

Well, it has been suggested this morning that the union has not in any way attempted to contact Mr Ron Goldfinch. We have contacted you on a number of occasions to even talk with the employer about an enterprise agreement. Has the employer ever suggested before that they were prepared to sit down and negotiate with the union?---No.

PN199

Has he ever said that he is prepared to sit down and negotiate with the union?---Recently he said that he was, yes. When we had a meeting he said that - he said: if that's the way you want to go, then that's going to take however many weeks. At the last meeting I thought - when was the meeting?

PN200

So when was the first time he said that he was prepared to sit down and negotiate an agreement with the union?---I don't know the date. Tuesday.

PN201

Say again?---Last Tuesday I think it was.

PN202

Last Tuesday was the first time?---Yes, the first time.

**** JOHN SAYERS XN MR DEAKIN

PN203

And he said he was prepared to sit down and negotiate with the union?---Yes, after saying: you've got a brick wall, a brick wall built.

PN204

Can you say that again?---He said that we had put up a brick wall between them. Like that's the only - that we'd have to bring that down if we negotiate. Like we'd built up a barrier between like him and us and that's why we can't - we couldn't really - we can't contact him. If we ring and call him, we can't call him either, he won't answer our calls.

PN205

He wouldn't answer your calls?---He wouldn't answer our calls, no. We can't - but we can't get in touch with him. We ring the office and Ron's not in.

PN206

Yes, but it was only last Tuesday?---Last Tuesday, yes, last Tuesday.

PN207

That he said he was prepared to sit down - - -?---He said that he was willing to talk, yes.

PN208

- - - and negotiate a document with - - -?---He tried, he tried to say that we had - he told us our options or the union and we told him the union - - -

PN209

What was the discussion on what your options were?---We could talk to him, do like another deal like we did before but we lost out big time I thought on this one because we didn't know what we were doing and - - -

PN210

So what he was suggesting that you could go down another 170LK?---Yes, could do another one of them, yes, yes.

PN211

Right. Did he notify you what the effects on your - like went down to taking a 170LK. Did he explain to you what the requirements are for you to go down the track of taking a 170LK?---The requirements? We talked to him. They'd get it legalised or something like that. They would see it for 14 days and then the 14 days after if we haven't got anything we can come back - come to the Commission.

**** JOHN SAYERS XN MR DEAKIN

PN212

Did he explain to you that it would be an agreement between you, just you and the company?---Yes, that - it was, yes, on the file.

PN213

Excluding the union?---Yes, that was kind of the option. It was either with the union or without so if you do it with - if you're talking to him, talking without the union, that means it's just you and him talking. If, yes, if you want to go to the union it's going to take longer, that was that kind of thing, yes.

PN214

What do you mean if it goes - if you go discussion with the union, the agreement with the union is going to take longer?---He said it would take longer to do, a lot to get, to work it out.

PN215

To work it out?---Yes, to work whatever out, whatever needed to be worked out would take long. That was with him was the quick way.

PN216

So was that the sort of same discussion that you had on previous 170LK ..... that you did?---Well, that was one thing, yes, that it could go with the union or with him so we went with him, so talked to him, yes.

PN217

So you went with the employer last time?---Yes, for speed, like to get the money because we were getting low pay so we weren't really thinking too far ahead.

PN218

Well, you have heard this morning by sitting here in the Court that the employer has only been prepared to sit down and negotiate an agreement with the union. That is the case that has been made this morning. Would you see that the same?---No, I don't see that, no.

PN219

No?---No. Well, you can't call him. How can you call him?

**** JOHN SAYERS XN MR DEAKIN

PN220

Pardon?---If we can't call him, how can you call him?

PN221

Pardon?---If we can't talk to him, how can you talk to him?

PN222

Okay, I'm finished your Honour.

PN223

THE SENIOR DEPUTY PRESIDENT: Mr Klitscher?

<CROSS-EXAMINATION BY MR KLITSCHER

PN224

MR KLITSCHER: Sir, could the witness be shown the Commission document. I don't think you entered it as an exhibit, your Honour, the section 170LK agreement number AG1881834, print PR 923326. Mr Sayers, do you recognise that document, apart from the covering sheet?---Yes.

PN225

Did you and other employees negotiate that with the employer?---Yes, that's right, yes.

PN226

Did you, during those negotiations ask to be represented by the union?---No.

PN227

I have no further questions.

PN228

THE SENIOR DEPUTY PRESIDENT: Mr Deakin?

<RE-EXAMINATION BY MR DEAKIN

**** JOHN SAYERS RXN MR DEAKIN

PN229

MR DEAKIN: Was you notified that you had the right to be represented by the union?---We were told that we could, but it was kind of like - the way I saw it was you talked to - it was just really basically two. You talked to you - either get the union to do it or we talk to - or we talk to Ron - or talk to the boss. We chose this time to talk to - they guys chose to talk to the boss so everyone sat down and talked to the boss so I don't really see that there was a half-way, way in it because we got told that it was - it was this or nothing with the union and - - -

PN230

It was that or nothing?---Yes, I thought. No, it was with the - like you said that you guys had your deal and that was it and with us it could negotiate. Like he said if we got you in that we'd have to have your deal and there was no point in even talking to him. We might as well just have the union. Did that make sense?

PN231

Could you repeat that again? "There's no need to - there's no use talking to him"?---Yes, if he said that talking to him we could, like discuss some options but if we had, if we asked for your help, like, you know, if you came in to look at it, that you'd push your deal. Push, like the way - yeah. So then there would be no point in talking to him at all anyway, if you understand my - - -

PN232

Yes. Okay sir. I'm finished with Mr Sayers sir.

PN233

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Sayers, you are released from the witness box, thank you.

<THE WITNESS WITHDREW [9.53am]

PN234

THE SENIOR DEPUTY PRESIDENT: Mr Deakin, I don't know whether you want to call other evidence. Do you want to call other witnesses?

PN235

MR DEAKIN: Well, because of the seriousness of the matter, sir, I think we should because - - -

PN236

THE SENIOR DEPUTY PRESIDENT: I'm afraid I'm out of time for the present time. I would propose to reconvene this hearing at 12.30 today. I'm estimating I've got at least an hour at that stage, Mr Deakin. If I've read my diary incorrectly then my office will be in contact with you shortly.

PN237

MR DEAKIN: Okay sir.

PN238

THE SENIOR DEPUTY PRESIDENT: Now, that is a period of about 2½ hours, people. It is clear to me at this stage that there is the potential for both parties to have misunderstood or misapplied or made significant errors in the application of the Workplace Relations Act. If the matter proceeds, as I've already indicated, it is likely that I will need to reserve a decision on the section 170MW application. With respect to both the employer and the union, I don't believe that is in fact the main game. The main game revolves around whether or not the employer and the employees, with or without the union, is able to achieve an agreement that benefits both the employer and the employees.

PN239

Central to the issues that you have been debating is a perceived problem associated with being able to eyeball each other and sit down and talk about some issues. There is something quite unique about today and that is that you are all in the one room together. You could conceivably sit down and talk about some of these same issues whilst you are waiting for me to resolve or to determine some other agreements where parties have been able to do just that. I can't reserve this room for you; other people have it. If, however, you want to use the Commission's facilities so as to have a meeting in a room in the Commission, I'm very happy to arrange that.

PN240

You could go away, alternatively, and prepare your various arguments for later on this afternoon or you could try to sit down and see how far you can get in the intervening couple of hours. I make that comment without having reached any conclusion relative to the application at all, but I think it appropriate that I put both parties on notice that the application of a commonsense solution to this problem might involve discussing an agreement and the terms of that agreement. I will adjourn the matter until 12.30 today.

SHORT ADJOURNMENT [10.56am]

RESUMED [12.40pm]

PN241

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Klitscher?

PN242

MR KLITSCHER: Your Honour, thank you for that suggestion and we've used the time fruitfully, we hope, since we adjourned these matters. We have now set down a timetable and are ready to negotiate and set down dates to achieve that and some other undertakings from both parties which has resulted in the employees agreeing to lift their bans and cease their industrial action so that that is the result of those discussions.

PN243

THE SENIOR DEPUTY PRESIDENT: We have wonderfully magical rooms in the Commission, Mr Klitscher.

PN244

MR KLITSCHER: Well we wondered about that but we know your reluctance to give away any secrets so won't press you as to what ingredients you feed into the air conditioning system. On that basis the applications relating to the - perhaps I will start again. The applications relating BP2003/3966 170MW and also C2003/1818, section 127(2), we ask that those matters be adjourned to allow the parties to continue negotiations and my friend will talk about his notification in due course.

PN245

THE SENIOR DEPUTY PRESIDENT: Yes. Mr Klitscher, I'm prepared to adjourn the application made pursuant to section 170MW. I am not prepared to agree to an indefinite adjournment of the section 127 application. The reason for that is section 127 obligates the Commission to deal with these matters with some expediency and I am loathe to make an adjournment of, or allow for an adjournment of the section 127 application in an environment where the circumstances surrounding the matter are subject to significant potential for change but the section 127 could then be called again at short notice in a changed environment.

PN246

I would agree to an adjournment of the section 127 but for only a very limited period of time. My preference would be to have the section 127 withdrawn on the basis that the union is well and truly on notice that it could face a renewed application depending on the changed circumstances. I will agree to a short adjournment of you ask for one but I am not prepared to agree to an open ended adjournment.

PN247

MR KLITSCHER: Thank the Commission for that. I guess all our discussions were predicated on the basis that we would get an adjournment so I take the Commission's point in view of the 127 application and would probably seek an adjournment, if possible, for about 4 weeks. I'm not sure what length of time you are thinking about.

PN248

THE SENIOR DEPUTY PRESIDENT: Yes, I have in mind a time frame of 1 week.

PN249

MR KLITSCHER: One week.

PN250

THE SENIOR DEPUTY PRESIDENT: And if I'm not advised accordingly or the contrary the extent that the section 127 is to be called on again I would propose to close the file at the end of that week but in the event there is any uncertainty, Mr Deakin should be well advised now to take note of the potential for a new application to be made pursuant to section 127.

PN251

MR KLITSCHER: Yes, we would seek that in light of your position and we would be happy to go along with that.

PN252

THE SENIOR DEPUTY PRESIDENT: Very well, thank you.

PN253

MR KLITSCHER: If it possible for the 170MW - to adjourn that.

PN254

THE SENIOR DEPUTY PRESIDENT: Yes, I'm prepared to leave the section 170MW application open for a little longer. If I haven't heard from the parties within the next 4 weeks then I would propose to close that file, thank you. Mr Deakin.

PN255

MR DEAKIN: Sir, we concur with Mr Klitscher. We also seek the deferment of our section 99 in the same spirit as the parties been in the spread of the meetings that have taken place this morning.

PN256

THE SENIOR DEPUTY PRESIDENT: Would a full week adjournment with the advance warning now that if I haven't heard from the parties in terms of a request to reactivate that section 99 I would close the file at the end of that period?

PN257

MR DEAKIN: Yes sir, we would agree to that.

PN258

THE SENIOR DEPUTY PRESIDENT: Very well, I shall do that. Mr Deakin, one other issue that I will raise with you - I raise it with you simply because you are the last one to address me. If the parties come asunder at all, in terms of their discussions, and you want to have a last ditch attempt in the Commission without a Commission member being present because of the magical nature of our rooms, please feel free to ask me to do that.

PN259

MR DEAKIN: Thank you sir.

PN260

THE SENIOR DEPUTY PRESIDENT: I will adjourn the matter on that basis.

ADJOURNED ACCORDINGLY [12.45pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #S1 FORM R41 NOTICE OF GIVING OF AUTHORISATION TO ENGAGE IN INDUSTRIAL ACTION FROM CEPU DATED 24/07/2002 PN18
EXHIBIT #S2 FACSIMILE ADVICE FROM CEPU TO SAFE FIRE AND ELECTRICAL DATED 25/07/2002 PN19
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EXHIBIT #S14 NOTICE OF GIVING OF AUTHORISATION TO ENGAGE IN INDUSTRIAL ACTION ON THE PART OF THE CEPU AGAINST SAFE FIRE AND ELECTRICAL DATED 01/06/2003 PN42
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