C2003/6241, Transcript of Proceedings [2003] AIRCTrans 4973 (11 November 2003)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER DANGERFIELD

C2003/6241

APPLICATION TO STOP OR PREVENT
INDUSTRIAL ACTION

Application under section 127(2) by
Serco Australia Pty Ltd for orders
to stop or prevent industrial action
(s.127) and conduct a ballot (s.135)

ADELAIDE

2.15 PM, TUESDAY, 28 OCTOBER 2003

PN1

MR DUGGAN: I appear for the applicant, Serco, in relation to this matter. I seek leave to appear.

PN2

MR A.M. GALLACHER: I appear with MR L.E. BELL, representing the Transport Workers' Union of Australia and if I may, Commissioner, I seek leave to oppose Mr Duggan's hearing here today, or at least his appearance here today. He is legally qualified, it brings nothing to the resolution of the dispute and in my view - probably my view very clearly, that the employer is not acting in the spirit of the Act by sending in a lawyer with at least three orders, one of which has just been delivered to me a few moments ago.

PN3

THE COMMISSIONER: Mr Duggan.

PN4

MR DUGGAN: Well, with respect, sir, the orders seek to prevent the industrial action from taking place, rather than precipitating industrial action, so to suggest that having a lawyer involved is necessarily contributing to the industrial action is not correct. Sir, can I indicate that this matter has been brought on at fairly short notice. Mr Baxter, who is the Human Resource Director within Serco is currently overseas and is unable to attend, so if I was unable to represent the company, well, it would fall upon Mr Pritchard, who is here with me today and in the circumstances the company submits that that would be unfair.

PN5

Sir, also, the industrial action that is proposed to take place by the respondent and its members will also have a significant effect on Serco and it is on that basis also that the company has involved legal representation at this stage. Sir, I should say that the application that I make is only for the purposes of the hearing today.

PN6

THE COMMISSIONER: This is under section 42 of the Act?

PN7

MR DUGGAN: Yes, sir.

PN8

THE COMMISSIONER: I consider that under section 42(3)(b) of the Act there are grounds in these circumstances, Mr Gallacher, to allow the appearance of Mr Duggan, having regard to the subject matter of the proceedings and, particularly, the circumstances that he has mentioned in regard to Mr Baxter I think and for these proceedings only, I'm satisfied and I will grant Mr Duggan leave to appear.

PN9

MR GALLACHER: Thank you, Commissioner. If I may just indulge a bit further. In light of that the Transport Workers' Union would seek leave to be legally represented and have this hearing adjourned.

PN10

THE COMMISSIONER: Adjourned to when, Mr Gallacher?

PN11

MR GALLACHER: Until we can get some legal representation, and I'm not sure that that will be today.

PN12

THE COMMISSIONER: What would that mean in regard to the action proposed for tomorrow?

PN13

MR GALLACHER: My view is the action proposed for tomorrow is duly constituted under the Act and we have obeyed all of the notice requirements and that it is legally protected industrial action. I have been served here with three separate bits of paper, one in the last five minutes, and if you see fit to allow the employer to be legally represented, then I think it is only fair that we should be able to source our own legal representation.

PN14

THE COMMISSIONER: I would be perfectly happy for you to be legally represented if you could arrange that within the next hour, but we must deal with this matter now, in view of the fact that it relates to action planned for tomorrow and it would be irresponsible of the Commission to adjourn the matter to a date to be fixed when this application relates to action that is to take place tomorrow.

PN15

MR GALLACHER: Well, I can simply put our position again, Commissioner. We are an entity which is bound by the Workplace Relations Act. We are very, very cognisant of our responsibilities under that Act. We have been served with what I believe is an unreasonable amount of paperwork in a very short notice period and if we cannot source legal representation within the hour then, you know, if you want to reconstitute the matter, so be it, but I will try and get some legal representation.

PN16

THE COMMISSIONER: Well, I mean, I need to put that restriction on you. I think you understand the situation that to adjourn this simply to a date to be fixed and allow the action to take place tomorrow would effectively be to dismiss the employer's application without even having heard it. I mean, that is the situation. If you are in a position where you could get some representation it would have to be within the hour because this matter has to proceed and be determined one way or the other this afternoon.

PN17

MR GALLACHER: Well, we are certainly not able to get our principal legal representation within an hour, so you know I will just say this that, should the matter proceed without us being represented all our rights will be reserved to what action we take in the future.

PN18

THE COMMISSIONER: That is fine but in view of that then we should proceed. Mr Duggan.

PN19

MR DUGGAN: Thank you, sir. Sir, initially, I propose to take the Commission briefly through the background in relation to this matter to set some context as to where we are at this point in time. Sir, the company, Serco, believes it is important to note that the original reason why this matter has come before the Commission is via an application from the respondent, TWU, requesting a conciliation hearing between itself and the company, and I understand that that application was made in early July and is indeed on the Commission file.

PN20

Sir, subsequent to that a decision was made by the Industrial Commission to suspend the bargaining notice in respect of the Serco matter and that was suspended pursuant to section 170MW(8) and, sir, that occurred in late August of 2003, and on that occasion the matter was adjourned to a conference for further conciliation. The subsequent day on 29 August 2003, further conciliation took place and some orders were made. Sir, those orders were distributed to the parties and were dated 2 September 2003.

PN21

In respect of those orders, without going through those orders in detail, sir, you might recall that the effect of those orders was to require the parties to go away and, in essence, formulate documentation that was in short to set out their positions. Sir, subsequent to those orders on 2 September 2003, both parties put together documentation which, in short as has been indicated, reflected their positions in respect of where the negotiations were for the purposes of negotiating an agreement.

PN22

Sir, subsequent to that the parties came back before the Commission again and some orders were made on 19 September 2004 [sic]. Sir, these orders could be described as procedural orders dealing with the way in which the matter was to be dealt with going forward. The first of those orders was that:

PN23

The company considers options for a new agreement to be put to its employees taking into consideration the suggestion made to it by the Commission and focussing in particular on those areas identified by the Commission that is likely to be critical for the matters to be resolved by agreement.

PN24

Secondly:

PN25

The company put any proposal for a new agreement in writing and advise the union and the Commission in detail by no later than the close of business on Friday 26 September 2003.

PN26

The third order was that:

PN27

The union's negotiation committee considers any such proposal -

PN28

In relation to the above paragraph that I just read out:

PN29

- and formulates a response in terms of its reaction to any new proposed agreement, either being put to the employees at a fresh ballot, or at least forming the basis for further directions.

PN30

Fourth:

PN31

The union advise the company and the Commission for its response -

PN32

In relation to the above paragraph as soon as possible:

PN33

In any event, no later than Friday 3 October 2003.

PN34

Fifth:

PN35

Both parties were to refrain from taking any industrial action of any nature while the processes in relation to the above paragraphs were being undertaken.

PN36

Sir, there was some delay in relation to the formulation of the new agreement from the company's perspective but you will recall, sir, that that eventually did indeed take place and the parties again came back before the Commission in relation to that agreement and that hearing has recently taken place. Subsequent to that hearing, sir, you have provided a statement to the parties dated 22 October 2003.

PN37

Sir, if I can take a step back in relation to the earlier hearing that we were before the Commission in relation to, it was the union's indication, as the company understood it, that it was taking a neutral stance in relation to the agreement that had been prepared by the company for the purposes of a vote by the employees in respect of the enterprise agreement.

PN38

Sir, from the company's perspective it was our understanding that from there what would take place would be that the union would communicate with its members in relation to the agreement and, eventually, that the agreement would be put to a vote, so certainly that was our understanding in relation to what was going to happen from here. As I have indicated we understood the union's position from the last hearing that they would be neutral and we also understood - though it wasn't said - that there would be discussions with the members about what their attitude is towards the agreement, obviously, with a view to having a vote at some stage.

PN39

Now, sir, since that time we have received - the company has received notification of proposed industrial action to take place tomorrow, and we have also received - we have also obtained copies of communication that we understand the union has had with its members. Sir, I wish to seek to tender that documentation at this particular point in time.

PN40

THE COMMISSIONER: Perhaps I just might mark this, just for identification purposes as A1. This is a - well, perhaps you can explain it, Mr Duggan?

PN41

MR DUGGAN: Sir, I understand it is a communication from the respondent to its members. It is issue number 13, dated 27 October 2003.

PN42

THE COMMISSIONER: Okay.

EXHIBIT #A1 COMMUNICATION FROM RESPONDENT TO ITS MEMBERS - ISSUE NUMBER 13 DATED 27/10/2003

PN43

MR DUGGAN: Sir, I was wondering if the Commission might like to briefly have a look at that particular communication?

PN44

MR GALLACHER: ..... boss got his copy, didn't he?

PN45

THE COMMISSIONER: Yes.

PN46

MR DUGGAN: Sir, I can indicate from the company's perspective that that has been supplied by one of our employees to us.

PN47

MR GALLACHER: Just tell us, next time we will send you one direct, not a problem.

PN48

MR DUGGAN: We understand that the correspondence has been communicated to members of the TWU and I will allow my friend to indicate to you at an appropriate time as to whether or not that is the case. Sir, can I take you to some of the pertinent points that the company says in relation to the particular notice. Sir, it refers to the stop work meeting that is proposed to take place tomorrow between 9.30 and 2.30. Sir, the first point is that in the second paragraph it refers to:

PN49

The necessity for this meeting is self-evident. The company has refused our claim.

PN50

Now, sir, in respect of that particular point our understanding from the last hearing when we were before the Commission was that the purpose of the meeting that was to take place, at which the TWU was to address its members, was to communicate to its members the agreement that had in fact been proposed by the employer, Serco, and it wasn't our understanding that there would be discussion about the rejection, or otherwise, of the claim that had been made by the TWU.

PN51

Sir, that is we would say part of the history that has occurred in relation to this particular matter, but our understanding of the purpose was that what would be explained would be the employer's proposal that had been put on the table. Sir, it goes on to say - and this is in bold and underlined:

PN52

This is your chance to have your say and determine the outcome of the claim.

PN53

Now, sir, certainly, that is our understanding of what the proposed vote in relation to the employer's agreement was going to be, but it seems from the notice itself that the context is: let us take industrial action now before there is ever a vote in relation to a particular agreement that has been proposed by the employer. Third, sir, in relation to the paragraph two down from that, there is a comment there:

PN54

If you are concerned about the loss of time the company was asked and, indeed, the Commission recommended the company seriously consider paid meetings to consider the issues and answer the members/employees questions.

PN55

Well, what is not said about that and what is of concern to us is that our understanding was in the context of these meetings was, again, that they would be communication of what the employer's position actually was and what was proposed to be put to the vote and not for the purposes of necessarily discussions about the union's position and, indeed, criticising the company for refusing its claim.

PN56

Clearly, the purpose was to discuss the actual claim itself that had been put by the employer. Sir, you will recall that the union had indicated that they had a neutral position. Now, this clearly is not consistent with adopting a neutral position in relation to the agreement. Sir, we are not saying that the union has to adopt a neutral position at all, but that is the position that the union has in fact adopted. Now, that seems to be inconsistent with this notice and the proposed industrial action which is to take place tomorrow.

PN57

The three points that the applicant, Serco, wishes to make are in relation to paragraphs 13, 14 and 15 of the application for an order under section 127 of the Act. Sir, in relation to the first point which is addressed at paragraph 13, as I said a moment ago, there was some recommendations of the Commission that were made on 19 September 2003. Sir, those recommendations embodied that there would be no industrial action that was to take place during the course of the processes described in those particular recommendations.

PN58

Sir, so far as we are concerned we are still in the process of working through the process outlined in those particular recommendations, namely, we are still waiting for the union to come back to us and indicate what its position is in relation to the agreement and, indeed, we are waiting on a vote in respect of the particular agreement itself.

PN59

Sir, in relation to the notice that has been tendered, A1, it does indeed refer to a ballot being conducted by the Australian Electoral Commission so, clearly, that was in the mind of the TWU as well, the respondent, that what would be happening would be that there would be some sort of a vote undertaken under the auspices of the Australian Electoral Commission.

PN60

THE COMMISSIONER: Sorry, which one are you looking at there?

PN61

MR DUGGAN: The A1 notice refers to the Australian Electoral Commission.

PN62

THE COMMISSIONER: Yes, sorry, yes.

PN63

MR DUGGAN: It talks about:

PN64

The company and the Industrial Relations Commission will be writing to you and a ballot will be conducted by the Australian Electoral Commission.

PN65

So certainly that was where the TWU saw that the matter was heading.

PN66

THE COMMISSIONER: If I just go to my recommendations of 19 September. You are saying that recommendation 5 of those recommendations has not been adhered to?

PN67

MR DUGGAN: Correct.

PN68

THE COMMISSIONER: I mean, I think the union's position, as I understand it, as reported the last time we were before the Commission that it does have a - it will neither recommend, nor not recommend.

PN69

MR DUGGAN: Correct.

PN70

THE COMMISSIONER: That was my understanding of what the union's position was.

PN71

MR DUGGAN: Yes.

PN72

THE COMMISSIONER: So that being the case, should paragraph 5 be seen in that light that:

PN73

Both parties refrain from any industrial action of any nature while the processes in 1 to 4 above are being undertaken.

PN74

Processes 1 to 4 have in fact been undertaken it seems to me.

PN75

MR DUGGAN: Well, save to say this, our understanding of the meeting that was to take place at which the TWU was to discuss with its members was to formulate a view about the agreement, so it seems from Serco's perspective - - -

PN76

THE COMMISSIONER: I see.

PN77

MR DUGGAN: That was always our understanding was that it was a communication meeting at which what would happen would be that the union would indicate its views about the agreement and would also indicate: well, look, here are the changes that are being proposed, here is what has been put.

PN78

THE COMMISSIONER: Yes, or as I said in my recommendations - I think the fourth recommendation of 20 October:

PN79

The parties continue to discuss ways in which suitable brief explanatory meetings for workers can be conducted.

PN80

That was certainly what I had in mind, an explanatory meeting, rather than a meeting to determine the future of the claim, I suppose, or the outcome of the claim. All right.

PN81

MR DUGGAN: We say in that context that the recommendations are still governing what is happening at this particular point in time. Sir, the other point to make about that which is a related point is that we are here before the Commission following an application by the TWU for conciliation to take place. Conciliation is taking place under the auspices of the Commission under section 170NA. Now, in respect of that, Serco would submit that whilst that conciliation is taking place, it would seem to be inconsistent to be taking industrial action at the same time.

PN82

Sir, we don't resile from the fact that the TWU and its members can take industrial action, but we say that whilst there is indeed conciliation taking place, that it seems to be inconsistent with that and, sir, that seems to be consistent with your recommendation dated 19 September 2003, that industrial action not take place while the mechanism and the process was being carried out in relation to the recommendations that were made for the purposes of attempting to conciliate this particular matter.

PN83

Sir, we say that even if the Commission is of the view that those processes under the 19 September recommendation of 1 to 4 had indeed taken place, that it is still inconsistent with the process of conciliation that is taking place and, indeed, what the notice (a)(1) talks about is a vote being undertaken under the auspices of the Australian Electoral Commission that it would seem appropriate for there to be no industrial action until such time as that process takes place. Now, in the event that there is a vote for the agreement, well, that obviously sorts itself out. If there is a "no" vote against the agreement, well, it would seem that the conciliation processes come to an end and either there is going to be further conciliation, or alternatively, the parties can take industrial action as can be authorised under the Act.

PN84

For the time being, it seems that there is conciliation taking place under the auspices of the Commission and it seems inappropriate in those circumstances for there to be industrial action taking place. Now, sir, in relation to that point, really, the first part of what the employer is seeking today is for orders, or alternatively, recommendations in relation to the industrial action tomorrow, obviously, that that industrial action does not take place.

PN85

Secondly, and just as importantly is a program for the future in terms of how we get to the stage of having to vote in relation to a particular agreement. Sir, we believe at this point and time it is appropriate that the Commission be making some procedural orders which deal with how we go going forward, culminating in a vote under the auspices of the Australian Industrial Commission or, indeed, under the auspices of the Industrial Registrar.

PN86

Sir, from our point of view we see that those two issues are inter-related and both important from Serco's point of view and, indeed, we would say they were important from the point of view of seeking to achieve an agreement, ie, the Commission attempting to settle a matter that is currently before it. Sir, in relation to the related issue of the secret ballot which the employer has also submitted an application in relation to, we have done so out of concern about the fact that we understood that the meeting was to take place - was to be a communication meeting and it seems to be for a different purpose and to seek the views of the members of the TWU in relation to the industrial action that is to take place, bearing in mind that it is to take place for a period of some five hours in that period, the employees will not in fact be paid for that particular period.

PN87

THE COMMISSIONER: Is your submission an either/or application?

PN88

MR DUGGAN: Well, look, sir, I think - - -

PN89

THE COMMISSIONER: Are you saying either 127 orders, or orders under 135?

PN90

MR DUGGAN: Well, sir, can I say this, in relation to the 127 orders it would seem to us that that is obviously the most significant from our point of view at this particular point in time, because of the threatened action tomorrow so, sir, that is really the primary orders that we are seeking today. Sir, in relation to the section 135 orders for a secret ballot, it would seem that those orders may not be necessary, but might be considered by the Commission to be appropriate in terms of the procedural orders that the applicant, Serco, considers are important going forward and, really, what we are looking at is some orders in terms of setting a time frame.

PN91

In relation to the position, it seems that there has been some further conciliation. Now, in terms of what has happened the company has in fact moved its position from where it was and has put a different agreement. The union has indicated that it won't recommend that particular agreement, but we are in a position now where we really want to have a vote - - -

PN92

MR GALLACHER: We will rapidly change in a moment.

PN93

MR DUGGAN: We really want to have a vote in relation to that particular agreement so, really, what we are seeking to achieve is some procedural orders that get us to that stage. In relation to the section 135 orders, to some extent they became redundant if the 127 orders are indeed made because the action, obviously, is not going to take place if the orders are indeed granted, so it is not significant for those orders to be made in that context.

PN94

We do think that in relation to the 127 orders that that is really only part of what we say needs to happen here, because we say that there need to be some procedural orders made to give an end date in relation to the conciliation process. Now, we say that after the conciliation process concludes through a vote, either yes or no, that the parties can then at that juncture make a decision: we want to go and have some further conciliation under the auspices of the Commission. Or: do we want to take industrial action under the Act? Or: do we want to consider some other option? Now, they would seem to be options available.

PN95

At this point in time both parties are working through conciliation under the auspices of the Commission and, indeed, as we understand it, it was through the TWU application that got us here in the first place. Now, we say we have acted in good faith in terms of being involved in those negotiations as part of the conciliation process and, indeed, have changed our position. Now, there is no requirement under the Act for the union to change its position and it is quite entitled to adopt a hard line if it seeks to do so, but at the end of the day what we are seeking to achieve here is some procedural orders that get us to a point in time that there is an end date in terms of the conciliation process and from there the parties can make a decision about which way they want to go.

PN96

Sir, there is a decision that I wish to bring to the attention of the Commission at this point in time and I apologise, I have not provided this to my friend or the Commission at this stage, but it is a decision I have really only looked at in recent times. Sir, it is a decision of Senior Deputy President Watson, which was delivered on 15 September 1999, and it relates to a dispute involving the Toyota Motor Corporation of Australia Ltd. Now, sir, in respect of that particular decision, Senior Deputy President Watson, of his own motion, made some orders pursuant to section 135(1). Sir, if I can take you to paragraph 13 of the particular decision, he says at that point:

PN97

I should indicate however that given that a process now exists to ascertain the collective view of the work-force proposed to be governed by the agreement and given the very significant adverse effects on the company, its production employees and employees of suppliers to the company, I strongly recommend that the trades group employees resume work at 7 am on 15 September. That will allow this process to -

PN98

I think there is a word missing there:

PN99

- to proceed in a fashion which allows the collective views of the work-force to be obtained in a fashion which removes the significant adverse effects on the company, its employees and employees of other companies within the industry more broadly.

PN100

Basically, what happened in respect of this particular matter was that the Commission, through Senior Deputy President Watson, made an order that a vote take place and indicated that during the course of that particular period, what should occur was that there is no industrial action, and as you can glean from what I have just read out from paragraph 13, what he is in fact doing is recommending that no industrial action take place.

PN101

We say that the same rationale is applicable in respect of this particular matter, namely, that what the parties are seeking to do here is have a vote in relation to the particular agreement, that that vote should go forward and during the particular period of the procedural matters that need to be dealt with up until that particular stage that no industrial action should take place.

PN102

Sir, I should indicate at this particular point in time, in paragraph 16 of the application there is mention of the effect that the action will have on the company, Serco. Sir, there will be a loss of profit from the company's point of view. There is potential damage to the business reputation and there is the potential for consequence of a breach of its bus hire agreement with the Minister for Transport.

PN103

Sir, I am instructed to indicate that the actual loss itself sustained by Serco in relation to the proposed action would be in the vicinity of $30,000. Sir, those are the submissions - - -

PN104

THE COMMISSIONER: Sorry, that is a loss of profit, did you say?

PN105

MR DUGGAN: Yes, sir.

PN106

THE COMMISSIONER: For tomorrow?

PN107

MR DUGGAN: For the proposed industrial action tomorrow.

PN108

THE COMMISSIONER: Yes. Mr Duggan, sorry, are you continuing?

PN109

MR DUGGAN: No, sir.

PN110

THE COMMISSIONER: In regard to my recommendations of 20 October, what happened in regard to point 4, where I recommended that:

PN111

The parties continue to discuss ways in which suitable brief explanatory meetings for workers can be conducted prior to the ballot in an efficient, mutually acceptable, cost effective manner.

PN112

MR DUGGAN: Sir, perhaps I can tender the letters that went backwards and forwards.

PN113

THE COMMISSIONER: Yes.

PN114

MR GALLACHER: I could answer that.

PN115

THE COMMISSIONER: Well, I will ask you in a moment, Mr Gallacher, perhaps I will have a look at the letters as well. I'm interested to know that.

PN116

MR DUGGAN: Sir, these letters that I'm tendering, one is dated 20 September 2003 and it is from the union to Serco. I think it should in fact be dated 20 October 2003, but it was the letter that the Commission recommended be sent in relation to the clarification of issues associated with the enterprise bargaining agreement.

PN117

THE COMMISSIONER: Yes, I think I remember seeing that, yes.

PN118

MR DUGGAN: Sir, the letter in response is dated 22 October 2003. Sir, that deals with the clarification issues as well as the meeting issue.

PN119

THE COMMISSIONER: Just one moment. So what I have here is a letter, as you say - properly dated, I would imagine, 20 October 2003 - it happens to mention September - from the TWU and in regard to meetings, the very last paragraph of that letter from Mr Gallacher to Mr Baxter, dated 20 October, it says:

PN120

Finally, the union requests your cooperation to hold meetings to facilitate information sessions at all depots in order that members/employees can ask questions in relation to the agreement.

PN121

The response from the company, dated 22 October, in its last two paragraphs, under the heading of "Meeting", says:

PN122

Serco is not prepared to pay operators for attending these meetings but should the meetings be held at a time that minimises the disruption to the passengers, Serco is prepared to assist drivers wishing to attend the meetings by arranging for relief drivers as best we can. Serco's preferred position is that these meetings be held at a date(s) and time(s) to cause the minimum inconvenience and disruption to the public transport passengers.

PN123

Now, apart from those two exchanges, has there been any other discussion between the parties in regard to point 4?

PN124

MR DUGGAN: Sir, Mr Pritchard and myself are not aware of any other discussions having taken place but, sir, can I indicate that in relation to the last attendance that we were before the Commission, I think the company made clear what its position was in relation to paid meetings, as such, and that particular point in time. Sir, the position, you might recall, was that in relation to a paid meeting, the company's position would be that it would be prepared to pay for bus operators to attend a meeting, but that would be on the basis that the Commission, and indeed the union, recommended the agreement.

PN125

Now, the rationale behind that was simply that otherwise, it could turn into something completely different. Indeed, what has transpired since that time really justifies, in the company's view, the position that it took on that particular occasion because what we understood was going to be a communication meeting seems, from the company's point of view, to be more about advancing the union's position. Now, we don't have any problem with the union doing so but that wasn't what we understood the meeting was going to be about. We understood the meeting was going to be about communicating what the employees proposal was all about.

PN126

So we don't really want to be paying for a meeting, at which time the union simply indicates what its preferred position it which seems to be now what the purpose of that meeting was and not really a communication about what the employees agreement is all about. So we are not going to be paying for a meeting in that context.

PN127

MR GALLACHER: Do I really have to listen to this shit?

PN128

THE COMMISSIONER: Sorry, Mr Gallacher?

PN129

MR GALLACHER: I'm getting extremely frustrated, Commissioner. This is - if my friend will permit me to put our position about meetings, rather than drivelling on about what he thinks our position is, we will get a lot further.

PN130

THE COMMISSIONER: Well, he is answering my question, Mr Gallacher. Now, Mr Duggan, have you completed your submission?

PN131

MR GALLACHER: Well, maybe we will adjourn outside until he has finished then. Maybe that is what we should do.

PN132

THE COMMISSIONER: No, you will sit there and listen to his answer, because I'm going to require you to respond to it in a moment.

PN133

MR GALLACHER: I will respond to it.

PN134

THE COMMISSIONER: Mr Duggan, have you completed your submission?

PN135

MR DUGGAN: Yes, sir.

PN136

THE COMMISSIONER: It is now your turn, Mr Gallacher.

PN137

MR GALLACHER: Well, if I can say, Commissioner, there was other discussion, as I indicated earlier, between Baxter and myself about these information meetings. There was discussion about the reduced quantum, down to an hour, and there was discussion about how we would proceed on that basis. Ultimately, the call wasn't his. The call was someone higher in Serco who took the simple view that they had a better chance of getting their agreement through without information meetings than with information meetings. It was on that basis that they declined to further consider your recommendations, or our eminently reasonable suggestion that we actually get on with making an agreement and actually allow people to ask questions of both the union and the employer.

PN138

So in respect to that, that is the exact situation and if Mr Baxter was here today, he would agree with that. So made a call that their best option of getting an agreement through was not to have information meetings, and that is what he told me. In respect to this submission that we have just heard, all my misgivings about people, legally qualified, appearing in the Commission are fully realised. I've got a number of delegates here that have been asking me: is there an English language translation to that submission? I think that they are quite entitled to ask that, having heard a quite convoluted, in my view, misrepresentation of the actual facts as we see them.

PN139

We have been out of an agreement since April 23. We have been conscientiously trying to make an agreement since that time. Our members have been engaged in an agreement process 12 months prior to that. We have come to a situation where we promulgating some fairly intense industrial action. The bargaining period was suspended. We had, previous to that, purpose made a 170NA application. We went and got some inspections. We got some recommendations from the Commission. They have been ignored in this process. They have been refused in this process.

PN140

We see a company which has, for the whole part of this year, steadfastly maintained it does not want a bar of the Commission, not one bar of the Commission in the process of making this agreement. Our application 170NA, they come in unwillingly. There are inspections and there are a series of recommendations. They choose not to even consider those recommendations any further. We now see today an application for orders. We see the company not represented by the senior people there who make the agreements. The senior people who make the decisions don't come to the table in the Commission.

PN141

We see a lawyer here with a whole series of orders in paperwork designed to do what? To avoid the fact that people have got the right to talk about their work, about the organisation of the work, and about their agreement. We see our documentation tabled here and explained to the Commission. I mean, that is not the company's role, to talk about what we put in letters. I mean, if they want to do their submission based around what I've put in the letter, well I write fairly succinctly and fairly straightforwardly. I will tell them what is in that letter, and they have got to realise this.

PN142

There is chance a making an agreement here but it is vastly disappearing. It is rapidly disappearing, given the company's attitude. The chance of making an agreement is if people are allowed to get together, see what is on offer, discuss the alternatives in a group, have a think about it, go away, and enjoy 14 days to consider their livelihood. 14 days, they will have the document and then they will be asked to vote on it. This meeting that we are going to have tomorrow is absolutely critical to the making of this agreement. If the company had a view that they want this agreement to get up, they should be conducting the meeting and paying for it.

PN143

They think that by some chance they get orders here today, that this problem will go away. They are vastly mistaken. All they will be doing is putting the cap on the bottle, and when it blows up it is going to blow up in a way that people won't like. This is not the way to make agreements, by frustrating for 12 months the delegates while we are in agreement, frustrating the genuine aspirations of a union once we are out of agreement, and then right at the moment that we have got something that is, in my words, worthy of serious consideration, they now say: we don't want the people to talk about it. This is not going to happen.

PN144

These people are going to talk about this agreement. They are going to make a valued decision on it. The way the company is going about this is totally wrong, in my simple view. If the Commission is of a mind to (A) give orders against us today, then those orders will expire. My absolute commitment to this company and the Commission is that when they expire, look out because all of the frustration that has built up in this process is going to explode all over the place. If you can say the Workplace Relations Act will never let us take industrial action, you might be safe but if you give orders today, they will be totally wrong. They will be undemocratic.

PN145

I don't think it is in line with the spirit of the Act or the making of an agreement. I think the company's grounds for it are extremely spurious. They have not, in my view, addressed any of the issues that they would need to address to stop us from taking a lawful right to protected industrial action and as far as the secret ballot is concerned, how many do they want? We had every channel, every - four TV stations counting the votes last time and it was over 80 per cent in result of 4 days, 5 days of industrial action. If you don't think we can get a vote up for 4 hours of industrial action, you are off your head.

PN146

The secret ballot is, once again, another attempt to delay. Already they have taken us from 23 April to November. Now, they want to take us to January or February, simply using the Commission in an extremely cynical way to frustrate the genuine aspirations of the workers in progressing their legitimate industrial aims. I would say this. I'm not legally qualified. I can't see that they have made their case but if you were of a mind to actually give the orders, then we would seek leave to be legally represented here. Thank you.

PN147

THE COMMISSIONER: Anything to respond to there, Mr Duggan?

PN148

MR DUGGAN: Sir, can I just make this point loud and clear to the Commission? We do not, I repeat, Serco does not wish to prevent the union from having a meeting with its members and discussing what this agreement is about. The union is entitled to do so. We encourage it to do so but we won't pay for that meeting. That is what this issue is about. Not whether or not the meeting takes place, but who pays for it. The union is seeking a paid meeting and that is what this issue is all about - not whether or not the meeting takes place.

PN149

THE COMMISSIONER: Okay, at this point, can we just go off record? Thank you.

OFF THE RECORD

RESUMED [4.30pm]

PN150

THE COMMISSIONER: I ask, first of all, whether there have been any further discussions between the parties and any progress?

PN151

MR GALLACHER: There has been further discussions, Commissioner. The company has put a position to us. We are not able to agree to that position. We are so far down the process that we have articulated in prior hearings that we have no room to move.

PN152

MR DUGGAN: Sir, can I indicate Serco's position as put was that there would be a 2 hour paid meeting, such meeting to be subject to certain conditions, namely that it occur with minimal disruption to services. We had in mind that that meeting would take place on either a Saturday or a Sunday. Sir, I can also indicate that in relation to that particular meeting, it was envisaged that it would either be a joint meeting or separate meetings taking place at the different depots of Serco. Sir, in relation to the company's position, this has not been discussed with the union, but I have been instructed by senior management to propose the following in relation to the section 135 orders that were sought.

PN153

That was that if the Commission considers it appropriate, that a secret ballot take place in relation to whether the bus operators wish to partake in the 5 hour action or alternatively, wish to partake in the 2 hour meeting as has been offered by the company.

PN154

THE COMMISSIONER: Okay. The Commission has before it two applications from Serco Proprietary Limited for an order pursuant to section 127 of the Act, and the other four orders for a secret ballot, pursuant to section 135. I might indicate before I put a statement on the record that I reserve the right to publish, edit, and expand upon these reasons in due course. The applications are underpinned by an extensive list of grounds. Although they are not supported by any evidence as such, I have had regard to the submissions and assertions of both Mr Duggan and Mr Gallacher.

PN155

In considering the merits of the matter, I firstly cannot help but express my disappointment at the fact that this matter has not been able to be sorted out by the parties before reaching this point. On 19 September, I asked the company to consider options for a new agreement, taking into account various suggestions put to it. The company did so. On 20 October, in the context of making recommendations about what I considered then and still consider to be a most promising development, namely a proposed new agreement from the company, agreement marked 2, for want of a better term, I recommended that:

PN156

The parties continue to discuss ways in which brief explanatory meetings for workers can be conducted prior to the ballot in an efficient, mutually acceptable and cost effective manner.

PN157

I expressed the view that any such meeting or meetings should not have to last any longer than about 1 hour. Frankly, I thought it would be a snap for the parties to agree on the logistics of such a simple matter. I find it hard to believe and hard to accept that the parties have not been able to do so. The proposed new agreement put forward by the company does not, in my view, require the union to go back to square one in terms of consultation with its membership. It differs only in a few simple, albeit significant, respects from the previous agreement proposal. It does not require hours of exploration and discussion.

PN158

While it is not unreasonable for the union to want the opportunity to explain the new document and answer questions about it, I consider that a 5 hour stoppage of all Serco services is quite unnecessary. It is like tackling an ant with a sledge hammer. However, whether I should issue an order effectively preventing the stopwork meeting from going ahead is a matter that I have to consider, having regard to the provisions of the Act and the merits of the arguments having been put to me. In considering the merits of the applications, I am satisfied on the submissions that the jurisdictional prerequisites for section 127 have been established, namely that industrial action as defined is threatened, impending and/or probable in relation to the negotiation or proposed negotiation of an agreement under Division 2 of Part VIB of the Act, and that work is regulated by certified agreement that is currently in existence.

PN159

Secondly, the company's submission is probably sufficient to discharge the onus on the applicant to satisfy the Commission of not only the jurisdiction prerequisites, but also the grounds for the making of an order. That leave the issue of the exercise of discretion. In exercising my discretion, I have had regard to a range of matters including, amongst other things, firstly, whether the action that is threatened, impending and probable is sufficient serious to warrant the intervention of the Commission. In this regard, I would not normally regard a stopwork meeting or meetings for the purpose of answering questions on a proposed agreement to be sufficiently serious as to warrant the Commission's intervention.

PN160

However, there are factors here that concern me. I am, for example, disappointed at the comparatively negative tone of the union's advice to employees about tomorrow's meeting. The 5 hour meeting scheduled for tomorrow is, in my view, unnecessarily long and the union's advice to its members focuses less on the company's latest agreement proposal and the opportunity for workers to ask questions and seek clarification on it, and more on the union's claim in the overall wage campaign. Secondly, I have had regard to the objects of the Act and, in particular, those objects dealing with the facilitation, making and certification of enterprise agreements, and ensuring the primary responsibility for determining matters rests with the parties at the workplace.

PN161

Thirdly, I have had regard to what seems to be the scant regard paid by both parties to my fourth recommendation of 20 October, 2003 about continuing to discuss ways in which brief explanatory meetings for workers can be conducted prior to the ballot in an efficient, mutually acceptable and cost effective manner. I understand that while discussions have taken place and, indeed, more discussions took place today, it seems to me that while both parties agreed to that recommendation, neither party really bothered to work hard on trying to find an answer - I mean, really hard.

PN162

Neither party really raised any sweat on the issue. Fourthly, I have had regard to the long suffering public interest, particularly that of the travelling public. In regard to that, I don't think anything more needs to be said. Fifthly, I have had regard to the nature and extent of damage to the company's business. In this context, I note the estimate of loss of profit in the vicinity of $30,000 - an assertion from the bar table that was not challenged. That is a significant loss in anyone's language. Finally and importantly, I have had regard to whether an order or orders from the Commission this afternoon would assist or inhibit the resolution of the dispute between the parties in acceptance of the company's latest draft agreement.

PN163

There is no doubt that the employees are entitled to meet and seek clarification on the company's latest proposals and have their questions answered. As I've already said, I've come to the view that even though the proposed 5 hour stopwork meeting appears to be unnecessarily protracted, nevertheless I consider that the issuing of an order or orders preventing the meeting from going ahead at this stage would only serve to further inflame what is already a difficult situation. Having regard to all these factors, I have decided on balance, and I emphasise those words "on balance" because there are factors, both pro and con, I have decided not to issue orders, either under section 127 or section 135 at the present time.

PN164

Although I have not specifically considered in this statement the arguments of the parties in regard to section 135, I am of the view that if satisfied of the jurisdictional requirements of that section, the exercise of my discretion under that section would be quite counter-productive to resolving this dispute at this stage. Even at this late stage, I once again strongly recommend and urge both parties, as I did on 20 October, to continue to discuss ways in which brief explanatory meetings for workers can be conducted prior to the ballot in an efficient, mutually acceptable and cost effective manner.

PN165

I guess it is probably too late for those discussions to bear fruit at the moment. However, I guess where the parties are together, there might still be an opportunity for that. However, if the parties cannot come to an agreement about arrangements for such a meeting or meetings, as seems likely, then I consider that following tomorrow's meeting, the proposed agreement should be put to the ballot without delay. The whole saga is beginning to take on the proportions of Wagner's Ring Cycle, to be honest. It is time we moved on. Finally, can I make a personal plea for the Negotiating Committee tomorrow to take a calm, objective and rational view of the company's latest proposal.

PN166

The company's latest proposals have a lot to commend them, and I would not like to see the positive aspects of the proposal undermined by, to use a mixed metaphor, heavy chested short sightedness, if you can understand what I mean - hairy chested short sightedness, I think I meant to say - and I say to both parties don't take your eye off the ball in regard to this dispute. This Commission stands adjourned.

ADJOURNED INDEFINITELY [4.35pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #A1 COMMUNICATION FROM RESPONDENT TO ITS MEMBERS - ISSUE NUMBER 13 DATED 27/10/2003 PN43