BP2003/6819, Transcript of Proceedings [2003] AIRCTrans 4939 (6 November 2003)

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TRANSCRIPT OF PROCEEDINGS


O/N 10652

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER BLAIR

BP2003/6819

APPLICATION FOR SUSPENSION OR
TERMINATION OF BARGAINING PERIOD

Application under section 170MW of the Act
by Kennon (A Division of Nylex Industrial
Products Pty Limited) to suspend or
terminate the bargaining period in
BP2003/6250

MELBOURNE

1.37 PM, THURSDAY, 23 OCTOBER 2003

PN1

MR A. McNABB: I seek leave to appear on behalf of the applicant.

PN2

MR M. ADDISON: Commissioner, I am not sure whether the matter that I am involved in has been called or not. I did have a message from Mr Levin last night with regard to an application. If it hasn't been called, I will leave.

PN3

THE COMMISSIONER: Would you like it to be called on, Mr Addison?

PN4

MR ADDISON: Not particularly, Commissioner, but - - -

PN5

THE COMMISSIONER: It may come under the heading of Other.

PN6

MR ADDISON: Indeed. I understand an application has been made. I understand the application has been received by my office this morning. I actually haven't seen it. I have turned up as a matter of courtesy more than anything else.

PN7

THE COMMISSIONER: There are two 170MI notifications and I am not quite sure why - one deals with Nylex Industrial Products Pty Limited trading as Kennon and the other one is Kennon. I am not quite sure whether there is a subtle difference there.

PN8

MR ADDISON: Is the application against TCFU or against AMWU and TCFU?

PN9

THE COMMISSIONER: No - the notice of initiation of a bargaining period - the only difference seems to be that one is addressed to the Chief Executive Officer of Nylex Industrial Products Pty Limited trading as Kennon and the other one is addressed to the Chief Executive Officer, Kennon.

PN10

MR ADDISON: I am just trying to ascertain, Commissioner - - -

PN11

THE COMMISSIONER: I am not quite sure - - -

PN12

MR ADDISON: - - - whether it is the AMWUs bargaining period you have there - - -

PN13

THE COMMISSIONER: Yes, they are both AMWU.

PN14

MR ADDISON: Well, in that case, I appear on behalf of the AMWU, together with MR C. SPINDLER and the shop stewards from the site and I oppose leave.

PN15

THE COMMISSIONER: Right. I didn't ask the question but I suppose you have foreshadowed what your position will be.

PN16

MR A. BANDT: I seek leave to appear for the TCFUA. Appearing with me is MS M. O'NEIL.

PN17

THE COMMISSIONER: Mr Bandt, do you object to Mr McNabb?

PN18

MR BANDT: Not if he doesn't object to me.

PN19

THE COMMISSIONER: Okay. Do you object to Mr Bandt, Mr McNabb?

PN20

MR McNABB: No, Commissioner, I do not.

PN21

THE COMMISSIONER: Thank you. Now, Mr Addison has objected to you, Mr McNabb. I assume, Mr Addison, you don't object to Mr Bandt.

PN22

MR ADDISON: In the circumstances, Commissioner, I will withdraw my objection.

PN23

THE COMMISSIONER: Thank you very much. Leave is granted to both. Mr McNabb.

SHORT ADJOURNMENT [1.39pm]

RESUMED [2.03pm]

PN24

THE COMMISSIONER: Thank you. Do you want to deal with the substantive application, Mr McNabb?

PN25

MR McNABB: Yes, please. Commissioner, have you received an outline of contentions?

PN26

THE COMMISSIONER: Yes, I have, thank you.

PN27

MR McNABB: It is a brief document. It refers to the authorities that will be relied upon if necessary. The evidence in support of the application is in the form of a witness statement from Mr Kerr, Mr Dymock and Mr Pensabene. Now, in relation to Mr Pensabene, unfortunately, his mother died this morning and he is unable to give oral evidence, but his witness statement has been prepared and served. I am not sure whether - has it been signed?

PN28

THE COMMISSIONER: No, not the one I have.

PN29

MR McNABB: Well, my instructing solicitor has dealt with Mr Pensabene in relation to the preparation of the document and this is the final form that he approved. So if the fact that Mr Pensabene had adopted that evidence is in dispute, simply as a technical matter, I can have my instructing solicitor confirm that he spoke with Mr Pensabene and Mr Pensabene can confirm that this was the statement that he was relying on and that it was true and correct. The application is made to terminate the bargaining period rather than suspend it. You will see from the evidence of Mr Kerr that there are three matters outstanding in negotiations between the parties. They are a no extra claims proposed by the company for the transmission - this is under paragraph 6 of his statement - - -

PN30

THE COMMISSIONER: Yes, I have that.

PN31

MR McNABB: Transmission of business clause and a relocation clause proposed. Now, these matters have been the subject of a great deal of discussion between the parties. There has been a conciliation conference held in relation to these and there is basically a position where there is no agreement and the fear is that there will be no agreement until the Commission intervenes and either goes through a further conciliation process or makes an order under section 170MX.

PN32

THE COMMISSIONER: Have the parties resolved their differences on financial outcomes?

PN33

MR McNABB: Yes.

PN34

THE COMMISSIONER: Have they?

PN35

MR McNABB: Yes.

PN36

THE COMMISSIONER: Are we in the same position that we were the other night, are we? Sorry, Mr McNabb. The position that we were in the other night is the company said there were three outstanding issues until we got down to talking about the financial outcomes and there was very clearly no agreement on that at all.

PN37

MR McNABB: Well, since that time, it is my instructions that there has been an agreement reached in relation to the financial matters and the outstanding issues between the parties are the wordings of these particular clauses, which are fairly significant.

PN38

THE COMMISSIONER: No, I appreciate that. Could I just hear from Mr Bandt for a minute?

PN39

MR BANDT: Well, Commissioner, on that point, my instructions are that there are more than three matters that are still outstanding and still to be discussed. There has been discussions over the last few days about those matters. The union went into - without wanting to give away too much about the negotiations, the union went into a meeting thinking that there were only three matters outstanding, those three matters that were raised. We were told that there were another two that were put on the table about financial matters and protection of entitlements.

PN40

There has been discussions and some progress has been made, we think, perhaps about all five issues but certainly about two of the five issues. But we wouldn't have thought we were in a position to say that it is narrowed down to three only.

PN41

THE COMMISSIONER: Have you agreed on a wages outcome?

PN42

MR BANDT: No.

PN43

THE COMMISSIONER: Where do you say that they have? Were you in the same room?

PN44

MR McNABB: I am not sure. I wasn't there, but - - -

PN45

THE COMMISSIONER: No, I don't mean you, Mr McNabb.

PN46

MR McNABB: My instructions are that the financial amount involved in relation to the relocation - - -

PN47

THE COMMISSIONER: That is the relocation allowance?

PN48

MR McNABB: Yes. Was agreed and it was agreed on the basis that - once again, you get the provisional type of agreement - I hope I am not talking out of turn - - -

PN49

THE COMMISSIONER: It is agreed on this if you agree on that.

PN50

MR McNABB: Well, yes, we will agree that if you agree this and we will recommend this to our members if you agree on these other matters. So the dollar amount in relation to the relocation expense or cost, however you characterise it, is agreed but what is not agreed is the trigger mechanism for the payment of it. Now, we say that those three matters are outstanding, that the way it is sitting, there has really been no indication that there is any hope of resolution and that it is not appropriate in those circumstances that this be a situation of rolling stoppages or ongoing action of the kind contemplated, which will create real damage, and the better approach is to agree that we can't agree and then have it resolved in the mechanism that is there to do exactly that.

PN51

I am instructed that it may be appropriate, Commissioner, to go off record for a short time to see whether that could be explored before we get into the full battle mode of this application, just to see exactly what the position is between the parties.

PN52

THE COMMISSIONER: Sure. Okay. Thanks.

PN53

MR McNABB: If the Commission pleases.

PN54

THE COMMISSIONER: Do you agree with that, Mr Bandt? It might help the Commission, I must say.

PN55

MR BANDT: Commissioner, one of the submissions that I was going to make in opening submissions was that this is an inappropriate application, given the status of negotiations between the parties at the moment. We would have proposed ourselves that we engage the Commission's assistance with respect to the substantive matters in dispute before proceeding further with the 170MW application. It is just clearly inappropriate at this time and ill-founded.

PN56

MR McNABB: There is a strike - - -

PN57

MR BANDT: Might I add - sorry - in that respect, Commissioner, that we have here with us today the State Secretary of the union. One of the matters that has caused the union some frustration during the course of negotiations over the last week or two weeks is not being sure whether we are sitting across the table from the real decision maker. There has been a number of occasions in which either matters have had to be taken back to someone else or a provisional agreement seems to be on its way and then someone else comes and attends the negotiations and it is clear that the direction we were heading the day before is now no longer the direction we are heading in.

PN58

So whilst I think it would be - we come here prepared with the relevant people; the relevant delegates are here, the State Secretary is here. In previous situations involving this group of companies, they have had to go to the top. Ultimately, the negotiations were successful when - I think it was a Mr Casey at the time, a Mr Glenn Casey - I am not sure what position he holds, but someone who has senior authority within the group was able to come in and resolve once and for all.

PN59

So whilst we would be certainly happy to go into negotiations and it is our preferred position, we would hope we would be doing it with all the people around the table who have got the authority to actually sign off on a deal so we don't find ourselves in the position that the union has found itself in in the last couple of weeks and in previous negotiations.

PN60

THE COMMISSIONER: As the Commission understands it, Mr Levin, that the Commission has had direct involvement with over at least three other agreements involving divisions of the Nylex group, has been the person with the authority to enter into negotiations. Obviously, like the union, subject to ratification by their members, Mr Levin at times simply has to get the sign-off by someone superior or senior to himself, understanding that Mr Levin is a solicitor working for PricewaterhouseCoopers, but he has been the main negotiator.

PN61

MR BANDT: Commissioner, my understanding is that he hasn't been present in some recent negotiations.

PN62

THE COMMISSIONER: Well, he is here today.

PN63

MR BANDT: Commissioner, what has been told to our delegates and what has been told to us is that Mr Casey is the relevant person to whom referral has to be made and our previous experience has been that a deal gets done when he is involved. So, whilst we accept that it is up to the company to choose how they want to negotiate and who they want to put to us, we are keen to ensure that we don't end up in a similar situation where we have arguments about wording, agreements maybe being made and not being made and so on. We want to reach an agreement once and for all.

PN64

THE COMMISSIONER: Well, as I said, the union is in no different position to that of the company. They have Mr Levin as their negotiator, subject to signing off maybe of someone senior. The union can't sign off on an agreement anyway. They take it back to their members for ratification. It is the same process. So we will go into conference.

PN65

MR McNABB: Before we do that, sorry - - -

PN66

THE COMMISSIONER: Yes, Mr McNabb.

PN67

MR McNABB: - - - finish at 3. The strike is scheduled for tomorrow, If that can be borne in mind in this matter. If the order is going to have any meaning, it is going to have to be made and communicated before 3 o'clock, effectively, Commissioner. It may be a problem but - - -

PN68

THE COMMISSIONER: It might be. You have got to convince the Commission that it is appropriate to issue it.

PN69

MR McNABB: Yes. Sorry, I didn't - that was silent part of that statement.

PN70

THE COMMISSIONER: Sure. I accept that.

PN71

MR McNABB: Thank you.

PN72

THE COMMISSIONER: We will go into conference, thanks.

NO FURTHER PROCEEDINGS RECORDED