C2003/5737, Transcript of Proceedings [2003] AIRCTrans 4652 (22 October 2003)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT HARRISON

C2003/5737

SYDNEY OPERA HOUSE TRUST

and

MEDIA, ENTERTAINMENT AND ARTS ALLIANCE

Notification pursuant to Section 99 of the Act
of a dispute re review of clause 6.11.3 of award

SYDNEY

10.09 AM, TUESDAY, 7 OCTOBER 2003

PN1

THE SENIOR DEPUTY PRESIDENT: May I have appearances in this matter.

PN2

MR J. DEGABRIELE: If the Commission pleases, for the Sydney Opera House, and with me MR A. LAWRENCE and MR D. GALLEN, again from the Sydney Opera House.

PN3

MS M. HRYCE: I appear for the Media, Entertainment and Arts Alliance, and my colleagues are MR N. DAVISON, MR T. AUSTIN and MR S. GRAYLIE.

PN4

THE SENIOR DEPUTY PRESIDENT: Mr Degabriele.

PN5

MR DEGABRIELE: Deputy President, the matter before you was a reference from ourselves as a dispute in that the House, the Sydney Opera House and the Media, Entertainment and Arts Alliance have been attempting to negotiate a review of the recording and broadcasting allowance for some time, and we'll show in evidence that that's been in excess of nine months and in reality almost three years.

PN6

A new payment for the recording and broadcast allowance which brings it back to the industry standard, or establishes it within the industry standard and also removes the burden on the administration to damage the recording and broadcast allowance and also removes the disincentive to our presenters to recording at the House. It's a complex issue and as such we'd like to place a number of exhibits on the record and to give the Commission the background to the matter so that the Commission can assist us in coming to some resolution on this matter.

PN7

I think both parties would appreciate the Commission's assistance in either guiding us towards a resolution that we can all accept or in taking note of the Commission's recommendation at the end if that's how the matter unfolds.

PN8

THE SENIOR DEPUTY PRESIDENT: Maybe if I could jump forward before having the detail as to what has been going on over the last months or years, this comes to me under section 99 of the Act, does it - well not, does it, it does.

PN9

MR DEGABRIELE: Yes.

PN10

THE SENIOR DEPUTY PRESIDENT: I just would like to know what role the Commission might be undertaking or asked to undertake, so in order to do that I might ask you now to provide me with relevant extracts from the EBA, even though I'm sure you would have been coming to them in due course but I'd like to better understand the EBA envisaged for the Commission, which of course isn't section 99, it's a section 170LW matter, but I need to understand that, then also understand what under section 99 it is said the Commission could do.

PN11

MR DEGABRIELE: I can certainly help the Commission with an extract of the current clause.

PN12

THE SENIOR DEPUTY PRESIDENT: That's the 6.11.3 clause, the clause in issue.

PN13

MR DEGABRIELE: That's correct. I don't have the full agreement here to present up, I'm afraid.

PN14

THE SENIOR DEPUTY PRESIDENT: We haven't been able to get it either.

PN15

MR DEGABRIELE: I can make it available to the Commission.

PN16

THE SENIOR DEPUTY PRESIDENT: All right, but it's been around for some time, I take it.

PN17

MR DEGABRIELE: 2000 is the last enterprise agreement.

PN18

THE SENIOR DEPUTY PRESIDENT: Is it still within its life?

PN19

MR DEGABRIELE: It was extended by variation at 2000 from an agreement in 2002. We extended in May of 2003 before Politis DP. We do have a spare copy.

PN20

THE SENIOR DEPUTY PRESIDENT: Let me have a look at that.

PN21

MR DEGABRIELE: I'll also present an extract of that relevant allowance clause. Because this is an enterprise agreement and the parties have been attempting to negotiate this matter, what the parties are really seeking from the Commission is the assistance and your guidance to possibly develop a solution that both parties could accept. We realise we're not putting the Commission in a position to arbitrate this matter at this stage. If it does come to that, that will be subject to separate proceedings, I would imagine. So it would be a matter of seeking the Commission's assistance in some private arbitration, ultimately.

PN22

THE SENIOR DEPUTY PRESIDENT: We'll come back to all of those matters.

PN23

MR DEGABRIELE: If I can start by presenting a background to how we've arrived here.

PN24

THE SENIOR DEPUTY PRESIDENT: Has this been before any other member?

PN25

MR DEGABRIELE: No.

PN26

THE SENIOR DEPUTY PRESIDENT: Not Senior Deputy President Politis at any time?

PN27

MR DEGABRIELE: No. I'm unaware of this matter being before the Commission. The only matter I'm aware of regarding the recording and broadcast allowance was back in 1982. If I can just present a copy of the 2002 variation.

PN28

THE SENIOR DEPUTY PRESIDENT: Did you get a sealed and signed copy of the variation made by Senior Deputy President Politis?

PN29

MR DEGABRIELE: Yes.

PN30

THE SENIOR DEPUTY PRESIDENT: And it's in accordance with what you've just handed to me, is it?

PN31

MR DEGABRIELE: Yes.

PN32

THE SENIOR DEPUTY PRESIDENT: I'll locate the, I suppose I can call it the official variation, and that will not need to be marked, it being a Commission document, but in any event I can see generally what was achieved by this variation.

PN33

MR DEGABRIELE: Essentially what was achieved by this variation is the extension of the 2000 variation for an extra 12 months whilst the parties gave themselves time to negotiate a number of matters before moving into a full negotiation of a new enterprise agreement. The matter that we are dealing with is in the agreed variation terms, clause 6, and it is on the second page, clause 6.7, a review of the existing EBA 2000, recording and broadcast allowance; clause 6.11.3, to ensure it's industry best practice. That's all of the 2002 variation that we need concern ourselves with: the fact that the parties did put it there and have exercised their abilities to try and review that practice.

PN34

We've done so for almost nine months and there has been a number of meetings which eventually culminated in a ballot of the members affected. The people who are affected at the Sydney Opera House by this allowance are the technical theatre staff and the parties had negotiated three options to be put to the members; to all the employees in fact. I'll hand up a copy of that ballot paper and the accompanying letter.

PN35

What you have in front of you is a letter from the CEO which was individually sent to each employee within that area. The next page is a copy of the ballot voting record, that's been signed off by members of the House, the union and delegate, who were present. Then you also have a copy of the voting sheet which outlines three options that were presented.

PN36

Those three options were Option 1, a classification specific buy out where an option was being placed before the members that instead of receiving an allowance at the time, a recording was done that they would receive an allowance each and every week ranging from 2 per cent to 1 per cent and that we also paid a one-off bonus for people who had a high history of being paid the allowance. Option 2 is an equal buy out proposal, the word buy out has probably been inappropriately used, it wasn't meant to be a one-off payment, it's a continuous payment, there's Option 2 is a 1-1/2 per cent allowance for all hours worked and a one-off bonus.

PN37

Option 3 was a standard payment of $80.30 for each event that was recorded or broadcast at the House and again, a one-off bonus. For completeness sake we actually put in an Option 4 which was to refer this matter to the Commission. There were 145 people balloted, they were all the employees who are on the Sydney Opera House's payroll in the classifications associated with this allowance. For the record, the vote was five people voted for Option 1, 10 people voted for Option 2, one person voted for Option 3 and 28 people voted for Option 4 which was to come here to the Commission which we are doing today.

PN38

So in fact something like 44 individuals of the 145 actually voted, which is why both parties are happy to present themselves here today in that despite our best efforts, we don't seem to be putting forward a resolution for either side to accept and to vary the current agreement or practice.

PN39

THE SENIOR DEPUTY PRESIDENT: Tell me this, these options, at least options 1 2 3 were options that were arrived at after negotiation with the MEAA with none of them being particularly pushed by one side or the other as your preferred option but being the three options the two of you had come up with.

PN40

MR DEGABRIELE: There's certainly a negotiated position on each of those options.

PN41

THE SENIOR DEPUTY PRESIDENT: Yes.

PN42

MR DEGABRIELE: They were not a Utopia position from either side.

PN43

THE SENIOR DEPUTY PRESIDENT: No, but both of you knew what an acceptance of one of the other option would mean in terms of the practical implementation?

PN44

MR DEGABRIELE: Yes.

PN45

THE SENIOR DEPUTY PRESIDENT: Why would the Commission do anything else other than say, Well that is the best outcome. Why would the Commission not acknowledge that that was the outcome of extensive negotiations between the two of you as to the options? Why would the Commission do other than endorse those as being the potential ways of resolving this matter and the workforce will just have to consider which of those options they wish to adopt and - - -

PN46

MR DEGABRIELE: If that's the view of the Commission - - -

PN47

THE SENIOR DEPUTY PRESIDENT: Well I just asking. I'm just at this stage wondering why it would be that the two of you after all the efforts you've put into it and coming up with these three none of them being ideal, but at least being three credible, well thought out and able administratively to be implemented options. Why would the Commission be able to come up with another that would be any more acceptable? Indeed currently I'm wondering how that could even be so.

PN48

MR DEGABRIELE: If we're able to satisfy the Commission that one of those options is or two options or three options is logical to the Commission and the Commission would be saying to the members then maybe they should reconsider then we'd be happy to take that back.

PN49

THE SENIOR DEPUTY PRESIDENT: I don't even know that that's what I had in mind. What I had in mind is, why wouldn't the outcome of this be that you don't get option 4 any more? You get three options, see what the vote of that might reflect including something a little more, a higher turn out than 44 out of 145 which reflects something, I don't know what it is but it's certainly a low vote at the very least.

PN50

MR DEGABRIELE: We're at a loss ourselves and I guess both sides are at that position that we've failed to be able to either put a position to the members and the employees of the House that is attractive to them or we haven't spent enough time convincing them of either side of the argument or they're just seeking the neutral umpire to at least give them some guidance. We're not sure what exactly is the reason for that vote but that's what we've got before us and I know we're using the facilities of the Commission maybe not suitably to arbitrate a decision or give us an absolute decision but your guidance might help us convince the employees that what's been put before them is an appropriate outcome.

PN51

THE SENIOR DEPUTY PRESIDENT: All right. Just before you go any further because clearly if the matter has to proceed any further there's a lot of background that I need to know but in relation to matters like this when the options to be put to the workforce are those that have come out of extensive negotiations held between the employer and the relevant representative union, I must say that I start immediately from thinking, well why would I come up with a better option? Why would I come up with any other option and why would it be better and more likely to be acceptable to a majority of the workforce. See even your three options didn't even get close to a small minority. Well no, they did get small minorities. Ms Hryce, what's the position of the union in this matter?

PN52

MS HRYCE: Senior Deputy President Harrison, I suppose when we look where we are now in terms of, and one can analyse voting situations and the outcome of a vote. Where we got to in terms of these options were - we've been negotiating reviewing this clause as per what we agreed to do in the 2000 agreement since 2001. We've had 17 meetings alone in 2003. Those negotiations have not been terribly positive in any shape or form. They have been polite at some times.

PN53

It is fair to say that the union was not satisfied and it's Sydney Opera House members who have worked very much on the team for the review of this clause. Indeed there was no final resolution where everyone was happy with these clauses or indeed these options. Basically this went to a vote in an attempt I suppose to say we have to have a deadline to finish negotiations. This is the most negotiated clause I think in the history of any agreement I've had anything to do with in time and energy affecting less than a quarter of the people working at the Opera House.

PN54

However, it moved to a secret ballot, it moved to us trying to complete our negotiations because the C.E.O of the Opera House refused to commence negotiations for our next agreement as per our decision. We rolled over the 2000 agreement and we agreed to attempt and we agreed to attempt an undertaking finish the work that we'd put in that agreement. We served claim on the C.E.O. of the organisation in July and also provided a list of proposed negotiating dates to the E.T.A. the C.E.O.'s response was, "We will not negotiate until this issue is dealt with". So - - -

PN55

THE SENIOR DEPUTY PRESIDENT: Well, it's coming up in tomorrow month isn't it?

PN56

MS HRYCE: So we have indeed have started.

PN57

THE SENIOR DEPUTY PRESIDENT: Yes I understand.

PN58

MS HRYCE: We have had, following the vote the C.E.O. was convinced that we had fulfilled our hour requirements under clause under clause 16.11.3.7 which was to review the clause. Three issues that concerned me during the course of the negotiations entirely. Part of them go to, this is the issue itself, the clause and the whole issue of recordings is an incredibly one at the Sydney Opera House for our members. This particular entitlement to an allowance and the provisions in how to approach recording at the Sydney Opera House had been developed and arose out of a dispute in 1980s and it is still very emotive. It is an area where people are very impassioned about what they consider is appropriate and not in this area. This is about, to our members this is about work in addition to what they were engaged to do at the Sydney Opera House. This is recording of live performance. They were engaged under the agreement, under the award to undertake work on live performance. The affect of recordings on their work can be quite enormous and different and there are varying views which have developed historical approaches as to why it continues to be important but for different reasons.

PN59

MS HRYCE: I was the negotiator in the 2000 agreement but I wasn't there in the eighties for the original RBA dispute. We agreed to this clause, to review this clause in those negotiations because we had a team of people. The EBA negotiations were at a stalemate and they were at a stop because we'd sent a team of negotiators off to look at the clause. A number of the issues that concerned us with the clause was lack of clarity of when the allowance was paid when it wasn't, and how to deal with recordings broadly. Also the negotiating teams from both the House and the union, would bear in mind for whole new technologies and the impact on recordings at the House and what may happen in the future.

PN60

We felt at time because all other issues in the negotiations were agreed to that we wanted to get the agreement put to bed to present it to the Commission and to move forward. So we agreed that we would during the course of this agreement review the clause, and review the clause to see if we could move towards best practice in recording, that was very much in light of the fact that the union in negotiations brought performers in live theatre were seeking to do that, so we wanted to look at the outcome of those negotiations and see if we could blend them and also in particular the new technology issues. What are we going to do about "R"? Is the House interested in web casting? What is going to happen? So our clause itself indeed didn't address these things, it was very unclear as to whether what bits of the clause indeed were attracted or not depending on what was happening at the time.

PN61

Our concern I suppose it has been very frustrating and indeed for both sides. We have been very committed indeed to attempt to improve the clause insofar as we have spent many many hours reviewing the clause to make it clear when the provisions would be triggered and not, everyone has worked very hard on that. Procedurally that monitoring panel, certainly the representatives of the union on this issue, have worked very hard to produce procedural guidelines to assist and work with the Sydney Opera House on this so they, in turn, can make it very clear or work better with their hirers in terms of the requirements of recording in the House.

PN62

There have been two key difficulties I've seen in terms of these negotiations indeed from 2001 and in 2003 are two issues. Firstly, the Sydney Opera House determined they would withdraw from the RBA Monitoring Panel which requirements are set out in clause 61136. That panel was key and pivotal to addressing any difficulties arising under the RBA, and to improve and develop the procedural issues so they can determine very quickly how to deal with an issue of a recording.

PN63

I might just say Senior Deputy President, that prior to this 2000 agreement there was a similar clause in the 1996 agreement, but industrially what used to happen there without making commitments to these issues often the union would be called upon to come to the House in respect of the recording because our members were not informed of the recording and there would often industrial disputes, they would stop work and there would be very difficult critical negotiations, one after the other because it was a view that our members weren't informed about the recording, they weren't prepared to undertake the work on it and there were difficulties. The commitment to this panel was a commitment to make sure this did not happen.

PN64

THE SENIOR DEPUTY PRESIDENT: Just pause there for a moment. Now I understand who the two TTS Alliance delegates will be, they're the two technical theatre staff, the group of persons specifically impacted upon. The manager theatre technical services is a Sydney Opera House employee?

PN65

MS HRYCE: Yes the management representative.

PN66

THE SENIOR DEPUTY PRESIDENT: And the representation from the event and venue management department, who's that?

PN67

MS HRYCE: That's Sydney Opera House.

PN68

THE SENIOR DEPUTY PRESIDENT: Well I don't understand what the submission is when you said the Opera House determined to withdraw from the panel?

PN69

MS HRYCE: During this year they have refused to place anyone on the panel. They have refused to contribute to the panel. They no longer have members, they have not had members from the panel this year.

PN70

THE SENIOR DEPUTY PRESIDENT: That may or may not be in breach of the agreement.

PN71

MS HRYCE: That's correct. We attempted to address that during the course of these negotiations as well.

PN72

THE SENIOR DEPUTY PRESIDENT: Yes I assume that for the new agreement that would be a matter that would be in issue because withdrawing from the panel if that's what they've done contrary to the agreement during its life, they no doubt have foreshadowed what they intend for the next EBA but I now understand.

PN73

Can I get back to this, these three options, options one, two and three, when they were put to the workforce were they accompanied by any description of how the specific option would work or, are we talking about a group of employees who know this back to front?

PN74

MS HRYCE: Senior Deputy President, indeed there were a number of meetings held with interest with members and our delegate Suzie Ballis whose here with us today, also prepared some documentation to provide to our members and there are a large number of meetings and discussions about this issue.

PN75

THE SENIOR DEPUTY PRESIDENT: All right, okay.

PN76

MS HRYCE: Just briefly the second concern in terms of the negotiation, so effectively these options were the best we could do in a situation where the CEO said, we will not move towards negotiations for the next EBA and we needed to do that, we needed to move forward for the benefit of all our members at the House.

PN77

The second issue that concerned us was a total lack of interest in undertaking this review together, in looking at issues of technological change or technological issues. This is what we committed to do in the EBA negotiations in 2000, and the Sydney Opera House have sought not to engage on this issue in this review. Indeed the overall concern of the union and its members is that where we attempt to improve, sort out or make suggestions to clarify and resolve some of the problems surrounding recordings at the House, this whole issue was highjacked by the Sydney Opera House and focused entirely on the quantum of the allowance itself. This seemed to be as time went on in these negotiations the only issue that was a concern really to the Sydney Opera House. They wanted to reduce the allowance down to our members.

PN78

All these issues that we thought were important to address, particularly struggling into the future were no longer issues that it would seem Sydney Opera House wanted to engage in. Finally even worse than that, on 23 April the Sydney Opera House said that they would put on the table a position in terms of what they were going to offer, how they were deal with or put a proposal on the table for our members about the quantum and how they wanted that changed, the entitlement or the allowance changed. Given that was the major focus it took until 4 August whilst we were continued to negotiate if you can call it that without the Sydney Opera House being frank and honest about what they wanted to put to our members in terms of either a reduction, a buy out or alternative way of dealing with the allowance.

PN79

So I think what's before you is, I'll just finally say that in terms of seeking industry best practice on this issue we are still committed to do so, but we do not believe in our research there is an industry best practice situation at the moment in Australia, indeed we don't think there has been anywhere else in the world and we have some simple documents to submit to you today in respect of that.

PN80

THE SENIOR DEPUTY PRESIDENT: We won't go that far today.

PN81

MS HRYCE: Finally the low voting reflects the fact that people were disappointed in the options, they were disappointed in being pushed to make a decision and indeed the negotiating team, including myself, was disappointed that this was the best we could do but none of that looked ideal or ideal to recommend to our members.

PN82

Having said that there is a variety when you look at the voting pattern, even though small, this is reflected in the quantum of the allowance it's quite different compared to what type of job that you do at the Sydney Opera House. People undertaking lighting are very active in terms of their involvement in recording, they are often paid more. It's connected to their classification. So there are slightly different views depending on what you actually get in any year in terms of entitlement.

PN83

THE SENIOR DEPUTY PRESIDENT: I understand. Now earlier when I had asked about the information provided to employees in relation to understanding the options and no doubt considering what they mean for each individual, I had overlooked a rather detailed document that had accompanied the secret ballot and I see that I have that now. So that goes some way to assisting me with that inquiry. All right, well I would have thought we would probably go into conference fairly soon. Anyone have any difficulty with that?

PN84

MR DEGABRIELE: Certainly we anticipate going into private conference and certainly later it would be probably valuable for the Commission to hear the completion of the submissions so that you've got the history formally for yourself.

PN85

THE SENIOR DEPUTY PRESIDENT: Yes, well perhaps we'll have a discussion in conference about that as well as some other matters.

PN86

Commission now adjourns into conference.

SHORT ADJOURNMENT [10.42am]

NO FURTHER PROCEEDINGS RECORDED

PN87