C2003/5449, Transcript of Proceedings [2003] AIRCTrans 4071 (16 September 2003)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT HARRISON

C2003/5449

APPLICATION FOR AN ORDER TO STOP
OR PREVENT INDUSTRIAL ACTION

Application under section 127(2) of the Act
by Armaguard Australia Pty Limited for an
order to stop or prevent industrial action

SYDNEY

2.40 PM, FRIDAY, 29 AUGUST 2003

THESE PROCEEDINGS WERE CONDUCTED BY VIDEO CONFERENCE IN SYDNEY

PN1

THE SENIOR DEPUTY PRESIDENT: I'll take appearances first here in Sydney.

PN2

MR A. McILROY: Your Honour, I appear for the applicant.

PN3

THE SENIOR DEPUTY PRESIDENT: I'll now take appearances in Canberra.

PN4

MR P. SEAL: Your Honour, I appear on behalf of the Transport Workers Union and with me I have the delegates, MR G. MALONE and MS L. BAKER.

PN5

THE SENIOR DEPUTY PRESIDENT: Mr McIlroy?

PN6

MR McILROY: Your Honour, I object to Mr Malone's presence in the court room. We'll be calling him as a witness as he is available today and we understand that the other delegate is there to instruct so we'd make that application that he vacate the hearing.

PN7

THE SENIOR DEPUTY PRESIDENT: Yes. What do you say about that, Mr Seal?

PN8

MR SEAL: Your Honour, I'm not aware of any subpoena or order on Mr Malone to call him as a witness for anything. We didn't intend to call him. If the company is saying they're calling him, then they have a process to go through.

PN9

THE SENIOR DEPUTY PRESIDENT: Well, what do you want to do though in relation to the application at this stage that he removes himself from the court room? I must say for myself, I had preferred to perhaps get an idea as to what the action and if it's still current that has led to this 127. Maybe we might deal with that first, Mr McIlroy and then you can return to any application you make. We're all on limited time this afternoon but it just seemed to me that there was one or two possibilities - well, maybe three but one possibility was that this action relates to matters that were the subject of proceedings before me in recent times in relation to a section 99 issued by both of you concerning the question of the deducting of amounts of money from wages of employees. I don't know how I can give that issue a short description - the income protection scheme issue.

PN10

Now, I had rather thought, at least my view about that matter had been expressed on 19 August. I need to know whether the section 127 before me today relates to ongoing issues concerning income protection or whether it relates to something referred to in ground 10 of the grounds in support of section 127, that is additional matters raised earlier relating to the conversion of casual employees to part time employees and related letters of offer that has been the subject, I am told, of a section 99 dispute notification by the TWU in C2003/2771 a dispute assigned to Commissioner Tolley.

PN11

Now, I might start with you, Mr McIlroy, at least as to what you understand to be the reason for the industrial action and the form it's taking.

PN12

MR McILROY: Yes, your Honour. The industrial action by way of a cessation of work from the commencement of shift yesterday morning and referred to at paragraph 13 of the application is continuing today. That is characterised as indefinite strike action and whilst a matter of submission is we say is not protected, the two matters that you refer to are germane, as we understand it, to the taking of industrial action by the TWU and employees. We say though that they are underlying matters and the substantive matter is, with respect, the industrial action taking place and that's what the application is directed to.

PN13

The short answer to your question, your Honour, is, and the evidence will show, that the industrial action is related to those two matters.

PN14

THE SENIOR DEPUTY PRESIDENT: Now, is it at least for the purposes of me getting an idea of what has led to this application you make, is it adequate to describe it as an issue about the change of status of certain employees? I think it was previously referred to as casual to part time or permanent part time, something like that?

PN15

MR McILROY: That is an issue and as your Honour has noted, that is the subject matter of C2003/2771.

PN16

THE SENIOR DEPUTY PRESIDENT: Yes. I take it that because that was lodged just recently, that of course hasn't got a hearing date yet to your knowledge?

PN17

MR McILROY: No, your Honour, but it's a key point in the sequence of events and what happens subsequent that we will make out.

PN18

THE SENIOR DEPUTY PRESIDENT: Yes. Now, the only other thing I want to know is, assuming for the time being that there are employees covered the enterprise bargaining agreement whose status is casual and are being changed to permanent part time, is that a matter that's covered by the enterprise bargaining agreement?

PN19

MR McILROY: No, it's not a matter covered by the enterprise bargaining agreement.

PN20

THE SENIOR DEPUTY PRESIDENT: All right. Well, Mr Seal, maybe I can at least hear you in relation to what your members have instructed you is the - well, I'm assuming that there is industrial action and there has been since commencement of shift yesterday and it continues so maybe you can address that and confirm it or otherwise and then let me know your instructions as to the reason why that action has been taken.

PN21

MR SEAL: Yes, your Honour, there is industrial action taking place. Unlike Mr McIlroy, we don't accept that it's illegal industrial action. We do accept it's not protected industrial action but we don't accept it's illegal industrial action. However, the main issue, whilst the subject of an urgent notification that the TWU put forward on 27 August to the Commission and in that we did indicate that it was our understanding that industrial action was threatened, as yet, your Honour, we still don't have a hearing date for that but yes, the change of employment status and the company's actions in relation to six casuals who were made permanent part time and then at least four of them were reverted back to casual, is the subject matter, I understand, of the dispute.

PN22

There are other elements such as the non payment of the back monies in relation to the income protection, but they are secondary to the nature of this particular dispute.

PN23

THE SENIOR DEPUTY PRESIDENT: I think income protection has gone as far as it can before me and that matter and matters consequential upon what, if anything, another member of the Commission is prepared to do with the enterprise bargaining agreement, what you've just mentioned might be a consequential matter should proceed there. Mr Seal, what do you say is the view I would take of the fact that you've lodged the section 99 and then you remain on dispute or maybe you lodged the section 99, then went out on dispute, then took industrial action? What do you think I should - gloss I should put on that other than not a happy one?

PN24

MR SEAL: Well, your Honour, the intention of the union was in fact to lodge an urgent notification which we did do. We did say that the industrial relations on the site were at such a volatile level that industrial action could occur at any stage and subsequently did occur. Now, I think that in order to assess the Commission's attitude towards that industrial action, they should look at what actually led to the industrial action because I think that has a major bearing on whether, in fact, this industrial action, even though it's not protected industrial action is legitimate industrial action and not illegal industrial action.

PN25

THE SENIOR DEPUTY PRESIDENT: The immediate problem I have, Mr Seal, is this. I have limited time to hear the matter before me only. The section 99 you lodged on 27 August has been assigned to Commissioner Tolley. I didn't get an opportunity before coming into court to ascertain whether he had in mind already a time for listing that. That's something I would have preferred to have known but I just wasn't able to ascertain that. In any event, it just seems to me that if the reason for the disputation now is the changing of status and changing back, you've got a 99 in.

PN26

I'll speak to Commissioner Tolley about assigning that his earliest time and in the event he can't do so, I will find another member of the panel who can hear it earlier, but as a general rule, and I know it's only a general rule, be it an employer or an employee, if they lodge a notification and then themselves don't cease action or for example, in the case of employers, I often say to them, don't lodge a notification and then go ahead with roster changes or something like that. When you lodge the application, you put on hold what's giving rise to the threatened action. Well, it cuts both ways and I'm just wondering why, whether pretty quickly, even without launching into the 127, I don't talk to you, Mr Seal, about the action ceasing at least until a hearing before a member of the panel.

PN27

MR SEAL: I guess, your Honour, if saner heads prevail, this matter would never have come to this stage. There's a problem with management and the relationship in the work site. It could be termed bastardisation what's actually happened to these guys. Saner people would have never let it come to this stage. I can only ask the members their attitude towards that and - - -

PN28

THE SENIOR DEPUTY PRESIDENT: I understand and I've had you all in the same court room several times now over, at least recent times so something is obviously wrong but having said that, I think the immediate thing I should do is make an inquiry as to when your section 99 can be heard. I must say, I don't want myself to almost, the Commission become the third party, namely, you won't withdraw the action until we jump. I don't like being put in that position, but I don't interpret that's what you're saying to me, Mr Seal.

PN29

MR SEAL: Your Honour, it's not.

PN30

THE SENIOR DEPUTY PRESIDENT: What I'd like to do, despite the fact I've started all this by saying we haven't got a lot of time, I'd nonetheless now like to adjourn for a few minutes just to ascertain some information I had hoped to before I came in so my apologies for that. Maybe we'll adjourn for 10 minutes. Now, you might in Canberra put your mute button on or ask someone from the registry there to help you if you intend to have a discussion amongst yourselves, otherwise you should leave the court room.

PN31

MR SEAL: Thank you, your Honour.

PN32

THE SENIOR DEPUTY PRESIDENT: The Commission now adjourns.

SHORT ADJOURNMENT [2.53pm]

RESUMES [3.05pm]

PN33

THE SENIOR DEPUTY PRESIDENT: Mr Seal, I'd like you to get some instructions from your members about immediately withdrawing the industrial action and for no new action to be reimposed until there is a hearing before the Commission of your section 99 and I'd like you to get those instructions on the understanding that that matter has been assigned to Commissioner Larkin and will be listed Monday. Do you want another short break?

PN34

MR SEAL: No, your Honour, on the basis of what you've just told me, I already have the instructions. The instructions are that the call out or break down workers are available immediately after this hearing. There are a number of people who are not available because of the fact that they're not here, they're not contactable. There are a number of people that may not in fact be in a fit state to go back to work but from the next rostered shift, everybody will in fact be returned to work.

PN35

THE SENIOR DEPUTY PRESIDENT: Other than the call out or break down staff, what would have been the next normal rostered shift or does it rather depend on what their classification is?

PN36

MR SEAL: My understanding, your Honour, is it's Monday would have been the next rostered shift at 6.30 am. The others, the call out from the breakdowns work when they're required.

PN37

THE SENIOR DEPUTY PRESIDENT: Yes. On your instructions, would there have been any other rostered shift commencing at any time after, for example, 4 pm this afternoon?

PN38

MR SEAL: No, your Honour.

PN39

THE SENIOR DEPUTY PRESIDENT: Mr McIlroy, at least on the rostered shifts issue, is that consistent with your instructions?

PN40

MR McILROY: Yes, an undertaking for a resumption of work at the first opportunity is sufficient. We accept that undertaking.

PN41

THE SENIOR DEPUTY PRESIDENT: That's the call out and break downs.

PN42

MR McILROY: Yes, your Honour.

PN43

THE SENIOR DEPUTY PRESIDENT: Yes, I understand.

PN44

MR McILROY: Second to that is the normal commencement time on Monday and I'd also on that basis, that undertaking extends, we accept from the union and from the employees at least as represented by those present today. The second matter we'd seek that on that basis this section 127 application is stood over generally with liberty to apply.

PN45

THE SENIOR DEPUTY PRESIDENT: Yes. I take it you don't oppose the fate of the section 127, Mr Seal?

PN46

MR SEAL: No, your Honour. Your Honour, there is one stipulation if I may which is probably systemic of the problem in Canberra as it is. The workers have in fact been informed this afternoon by the ACTs manager that if they do turn up for work he won't be paying them. I know Mr McIlroy will say that if they work they'll get paid. I just need to put that on the record or at least have that recorded that he has in fact said that. Thank you, your Honour.

PN47

MR McILROY: I make no comment, your Honour.

PN48

THE SENIOR DEPUTY PRESIDENT: Well, maybe both Mr McIlroy and I won't make a comment about it. It's being recorded. There's a transcript being taken here, Mr Seal. Now, immediately upon my adjourning, I have alerted Commissioner Larkin's chambers about this but I will give her the one page document that we have here in Sydney and I've called the file up from Melbourne, but I don't think there's probably much more on the file than the notification. If for any reason either Mr Seal or Mr McIlroy you have a difficulty at some stage on Monday, tell the Commissioner because I know she's probably in the process now of looking at a time for you, but in any event, perhaps it's better I just say any issues relating to the hearings of that matter should be directed to Commissioner Larkin's chambers.

PN49

MR McILROY: Thank you, your Honour.

PN50

THE SENIOR DEPUTY PRESIDENT: I'm going to adjourn now and I doubt I'll see any of you for three weeks. Good afternoon.

PN51

MR McILROY: Good afternoon, your Honour.

ADJOURNED UNTIL MONDAY, 1 SEPTEMBER 2003 [3.10pm]