BP2003/7208, Transcript of Proceedings [2003] AIRCTrans 5525 (11 December 2003)

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TRANSCRIPT OF PROCEEDINGS


O/N 10709

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT KAUFMAN

BP2003/7208

APPLICATION FOR SUSPENSION OR
TERMINATION OF BARGAINING
PERIOD

Application under section 170MW(8A) of the Act
by Metropolitan Fire and Emergency Services
Board for orders to terminate bargaining period

MELBOURNE

9.01 AM, WEDNESDAY, 26 NOVEMBER 2003

PN1

MR P. BERTOLUS: I appear on behalf of the Metropolitan Fire and Emergency Services Board and with me are MR A. GARCIA and MR N. WHEELER.

PN2

MR T. O'LOUGHLIN: I appear on behalf of the APESMA. For the sake for the convenience, if it is required, I have with me MR LESTER McCLURE and MR DINH TA.

PN3

THE SENIOR DEPUTY PRESIDENT: Mr Rizzo is running late but the matter was listed for 9 o'clock and we will see how far we can get in the meantime. It has been listed for directions. He may just have to cop it. Mr Bertolus, what do you want to tell me about it?

PN4

MR BERTOLUS: In relation to the appearance of the ASU, even though they have been notified in this particular matter, Senior Deputy President, we have not been served with a bargaining notice from the ASU. We have certainly received one from APESMA.

PN5

THE SENIOR DEPUTY PRESIDENT: So it doesn't directly affect them?

PN6

MR BERTOLUS: As far as we are concerned, the matter doesn't directly affect them at this stage.

PN7

THE SENIOR DEPUTY PRESIDENT: Well, why did you put them on the - - -

PN8

MR BERTOLUS: Because their name appears on the bargaining notice but the fact of the matter was that that bargaining notice was actually signed by an official of APESMA, but it was certainly not signed by an official of the ASU.

PN9

THE SENIOR DEPUTY PRESIDENT: I see, yes.

PN10

MR BERTOLUS: And we would just like to clarify that matter up front. In effect, there is no bargaining period in place with the ASU at this stage.

PN11

THE SENIOR DEPUTY PRESIDENT: Well, I dare say the ASU may have a different view about that but - - -

PN12

MR BERTOLUS: I have no doubt.

PN13

THE SENIOR DEPUTY PRESIDENT: - - - no doubt, that will be one of the issues to be determined at the hearing.

PN14

MR BERTOLUS: I have no doubt. What this matter involves, Senior Deputy President, is an application that has been made by the Association of Professional Engineers, Scientists and Managers of Australia in which they notified a bargaining period on 17 September this year, and that was subsequently followed up by an authorisation to engage in industrial action to commence on Thursday, 2 October 2003. And that industrial action has, in fact, occurred and has been going ever since.

PN15

There have been attempts to try and resolve this particular matter in that the MFESB made application to the Commission under section 99 to try and at least have the matter conciliated, understanding full well that the Commission had no power under that section, but certainly to get the matter before the Commission in an endeavour to assist in conciliation.

PN16

THE SENIOR DEPUTY PRESIDENT: And did that occur? Did the matter - - -

PN17

MR BERTOLUS: Yes, it did occur in front of Commissioner Simmonds, and that occurred on 14 October. Sorry, it occurred on 20 October. And really in between time the parties have continued to try and negotiate the matter but it really reached an impasse. The situation for the MFESB at this particular point in time has reached the stage where the only person who is on standby is the senior executive manager of the information and communications systems.

PN18

THE SENIOR DEPUTY PRESIDENT: Sorry, just run that past me again, the senior - - -

PN19

MR BERTOLUS: Senior executive manager - well, sorry, the executive manager of communications and information systems, Mr Wheeler, who is here with us today. And Mr Wheeler has effectively performed the function of standby in the sense that what he has done, he has routed calls to the relevant individuals for - or since then, so since 2 October.

PN20

THE SENIOR DEPUTY PRESIDENT: How many individuals are refusing to undertake standby duties?

PN21

MR BERTOLUS: We are talking about half a dozen people. I have an exact list if the Commission wishes it.

PN22

THE SENIOR DEPUTY PRESIDENT: No, I am just trying to get an understanding.

PN23

MR BERTOLUS: Yes. It is round about that number of people, and they all have specialist skills. And basically what has been occurring is that in terms of the dispute itself, these functions, the specific standby are on-call function, which is the part of the industrial action, has been performed by custom and practice over a long period of time; some say going back up to 20 years. The matter in question at this stage became - it falls really round about since 1999 for which I can provide exact dates.

PN24

THE SENIOR DEPUTY PRESIDENT: Mr Bertolus, I don't want you to go into detail about the substance of the case at this stage.

PN25

MR BERTOLUS: Yes.

PN26

THE SENIOR DEPUTY PRESIDENT: I have listed the matter urgently for directions, and I only have a short time to do it.

PN27

MR BERTOLUS: Yes.

PN28

THE SENIOR DEPUTY PRESIDENT: Today is not the day to - - -

PN29

MR BERTOLUS: To enter into that detail.

PN30

THE SENIOR DEPUTY PRESIDENT: No, and I wouldn't have commenced without Mr Rizzo if I had intended to do that. What do you - - -

PN31

MR BERTOLUS: Okay. Well, the situation has really reached the point where our man on the spot, Mr Wheeler, has basically reached the end of his tether and is basically seeking that something be done to resolve the situation. If he is not in a position to be able to take these particular calls, there are some substantial systems that the fire brigade relies on, such as a system called Firecom which is a dispatch system, and also the PABX system, communications, radio and all of those kind of systems are also looked after by this particular group of individuals.

PN32

THE SENIOR DEPUTY PRESIDENT: Okay. Well, now tell me about how you want to run the case and how we will prepare for it. How many witnesses do you have? How long will it take? What sort of directions do you want?

PN33

MR BERTOLUS: Well, the direction that we are seeking is that the bargaining period be terminated.

PN34

THE SENIOR DEPUTY PRESIDENT: No, the directions for running the case.

PN35

MR BERTOLUS: Sorry, in terms of directions for running the case, what we would like at this particular point in time is to make submissions in writing, if we possibly could, within a fairly short timeframe.

PN36

THE SENIOR DEPUTY PRESIDENT: Do you have any evidence? You will need evidence, won't you?

PN37

MR BERTOLUS: Well, in terms of satisfying the provisions of the Act, I mean we believe that written submissions could be made about the systems that would fall over, and in terms of the personnel required to actually carry out that particular function because - - -

PN38

THE SENIOR DEPUTY PRESIDENT: Yes, but if APESMA doesn't agree with your submissions, I won't know what the facts are.

PN39

MR BERTOLUS: What we are saying is that subsequent to those written submissions, I mean we are suggesting that they respond; subsequent to the written submissions that we attend the Commission if there are matters in contention in respect to that.

PN40

THE SENIOR DEPUTY PRESIDENT: No, that is not the way to expedite a hearing, Mr Bertolus. My usual directions are that parties file witness statements and submissions.

PN41

MR BERTOLUS: Fine, happy to do that.

PN42

THE SENIOR DEPUTY PRESIDENT: I think that is the preferable way to go because what you are suggesting would entail another directions hearing in the Commission. We will come back and APESMA will say we don't agree with these parts of your submissions; and we are no further advanced.

PN43

MR BERTOLUS: Well, I am happy to follow the guidance of the Commission in that particular matter, Senior Deputy President.

PN44

THE SENIOR DEPUTY PRESIDENT: How urgently do you need the hearing?

PN45

MR BERTOLUS: Well, Mr Wheeler has been operating now for more than eight weeks in that particular situation and we would like to get the matter sorted out, preferably by the end of the week if we could possibly could.

PN46

THE SENIOR DEPUTY PRESIDENT: Well, you can't, not in front of me, because I am not in Melbourne for the remainder of the week.

PN47

MR BERTOLUS: Well, any way we can.

PN48

THE SENIOR DEPUTY PRESIDENT: Yes. Well, I will see if I can - - -

PN49

MR BERTOLUS: Yes, because - - -

PN50

THE SENIOR DEPUTY PRESIDENT: Well, tell me why it has become that urgent.

PN51

MR BERTOLUS: Well, at this stage if something were to occur to Mr Wheeler according to our risk analysis and he was put out of action, we would effectively have nobody to be able to perform the function. And if he failed to be able to perform that function, our communications systems have the potential to fall over and that would endanger, we believe, a substantial proportion of the population of Melbourne. There is also issues relating to the dispatch of the fire trucks which is also controlled - or not so much controlled, but certainly supervised in terms of their efficiency by this particular group of people. And should that system fall over, we wouldn't be able to dispatch our trucks to emergency situations within the required 7.7 minutes that the aim is to try and achieve.

PN52

THE SENIOR DEPUTY PRESIDENT: Yes. Mr O'Loughlin, what do you say about it?

PN53

MR O'LOUGHLIN: Senior Deputy President, all I can say, I mean obviously it is the MFESBs application. I have just noted a couple of things, I guess, in - it should be noticed that by and large the people who have been doing this have been doing it without any compensation or remuneration for a number - so this has been brewing for a while. We put a number of offers to the MFESB in terms of our claim. We have, how can I say, cascaded down our - revised down our claim. We believe we have entered into these negotiations in a genuine manner to bargain an appropriate outcome. There is a fair bit of history to this. As Mr Bertolus was saying, we have been to the Commission who provided some recommendations which, well, perhaps I won't go into now but we have our viewpoints on these matters.

PN54

I guess the only concern I have had is that we have sought to genuinely resolve this matter and adjusting our claims accordingly, and we don't believe that the authority has been reciprocating in that manner. I guess I am at a little bit of a loss at the moment because I only found out all about this late yesterday afternoon about this application so, Senior Deputy President, I am really in the hands of the Commission to some extent regarding this application. But I certainly would make note of it that we are earnestly trying to negotiate a settlement around this matter.

PN55

THE SENIOR DEPUTY PRESIDENT: Well, this might facilitate those negotiations then. Well, it does seem that there is a degree of urgency about it. I can hear it on Tuesday, 2 December. Today is Wednesday. If I give you, Mr Bertolus, until midday on Thursday to file and serve any witness statements upon which the MFESB relies, together with written submissions, are you able to meet that deadline?

PN56

MR BERTOLUS: I certainly am, Senior Deputy President.

PN57

THE SENIOR DEPUTY PRESIDENT: Yes. Well, I so direct that the MFESB file and serve any witness statements upon which it relies, together with its submissions, by 2 pm on Thursday, 27 November 2003. Yes, there is somebody else just arrived in the court. Do you wish to make an appearance, sir?

PN58

MR M. RIZZO: Thank you, your Honour. I appear on behalf of the ASU.

PN59

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Rizzo. I did receive your phone message. I wasn't able to delay the hearing.

PN60

MR RIZZO: Yes, I appreciate that, your Honour.

PN61

THE SENIOR DEPUTY PRESIDENT: I am setting this matter down for hearing on Tuesday next, and issuing directions in relation to that hearing. I also direct that APESMA and the ASU file and serve any witness statements upon which they rely by close of business on Monday, 1 December 2003 - sorry, did I say witness statements - and submissions; if I didn't, that is what the direction is. Witness statements and submissions by close of business on Monday, 1 December 2003. And the matter will be listed for hearing at 10.15 am on Tuesday, 2 December. Is there anything that anybody wishes to say before we adjourn?

PN62

MR O'LOUGHLIN: If I may, your Honour, I would request a transcript; order for transcript of the proceedings today, if that is possible.

PN63

THE SENIOR DEPUTY PRESIDENT: Yes, I will also order transcript of this morning's hearings. So just so that it is clear to all, the MFESB is to file and serve any witness statements upon which it relies, together with its written submissions, by 2 pm tomorrow. The two unions are to file and serve any witness statements upon which they rely, together with their submissions, by close of business on Monday, 1 December 2003. And the matter will be listed for 10.15 on Tuesday, 2 December 2003. Does anybody wish to say anything before we adjourn? Yes, adjourn the Commission, please.

ADJOURNED UNTIL TUESDAY, 2 DECEMBER 2003 [9.16am]