AG2002/5996, Transcript of Proceedings [2003] AIRCTrans 60 (7 January 2003)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER SMITH

AG2002/5996
BP2002/10283

APPLICATION FOR CONCILIATION
IN RELATION TO A PROPOSED AGREEMENT

Application under section 170NA(1) of the Act
by the CPSU for conciliation in relation to a
proposed agreement

APPLICATION RE BARGAINING PERIOD

Application under section 170MI of the Act
by the CPSU and Sensis Pty Limited
re bargaining period

SYDNEY

12.55 PM, TUESDAY, 17 DECEMBER 2002

PN1

THE COMMISSIONER: These are matters which relate to the notice of initiation of a bargaining period and an application pursuant to section 170NA of the Workplace Relations Act for the Commission to assist with conciliation. I have earlier this morning sought to assist with conciliation and at this stage conciliation has not been fruitful. The CPSU, the Community and Public Sector Union, have foreshadowed that they wish to make an application. On that basis I have listed the matter for open hearing. Could I take appearances, please?

PN2

MS L. ANDELMAN: Commissioner, I appear for the CPSU, the Community and Public Sector Union.

PN3

MR C. GARDINER: If it pleases, I seek leave to appear on behalf of Sensis Pty Limited.

PN4

THE COMMISSIONER: Is there any objection to the application for leave?

PN5

MS ANDELMAN: No, Commissioner.

PN6

THE COMMISSIONER: Thank you, leave is granted, Mr Gardiner.

PN7

MR GARDINER: Thank you.

PN8

THE COMMISSIONER: Yes, Ms Andelman.

PN9

MS ANDELMAN: Commissioner, this is an application under section 170MH, initiation of a bargaining period, the CPSU believes that conciliation is at an end, we are seeking - - -

PN10

THE COMMISSIONER: I haven't formed that view myself yet.

PN11

MS ANDELMAN: It is the CPSU's submission, though.

PN12

THE COMMISSIONER: Yes, I understand.

PN13

MS ANDELMAN: The CPSU is seeking a direction, Commissioner, I foreshadow, and we have a submission to make that you have power to make that under section 111(1)(d) and (t). I have here particulars to accompany the modus of an initiation period as per section 170MJ that I don't believe is in your file.

PN14

THE COMMISSIONER: Yes, very well. I will mark that CPSU 1.

EXHIBIT #CPSU 1 PARTICULARS TO ACCOMPANY MODUS OF INITIATION PERIOD

PN15

MS ANDELMAN: Commissioner, the CPSU is seeking to negotiate a section 170JJ agreement with Sensis to include all employees. There is currently one other agreement that covers bracket employees but I understand the company has stated it would like to be covered by one company agreement. There is an outline of the type of employees that the agreement would cover, they are currently from band 1 to 8. There is a prior industrial dispute which this matter relates to and at this stage we are seeking to have a two-year with the company.

PN16

Commissioner, there is currently a framework in place where the company has gone through a process of asking staff representatives whether they would like to be involved in negotiations for a new agreement and there have been two meetings to date. The two meetings have consisted of the company asking what issues they will have. There have been no negotiations entered into or discussions about where the company agrees or disagrees with those issues and that process is not closed to further issues. There is a possibility of further issues to be raised from staff.

PN17

The CPSU is seeking to be present at the next negotiation meeting on, I understand, 10 February for a number of procedural and substantive reasons. A significant reason is that representation is currently inappropriate. There is one person representing 900 people, that's Yellow Pages call centre employees, and the company has stated to that employee that that person can only have time off when he is having face to face negotiations with the company. He has no capacity to seek the views of his fellow employees outside of those face to face meetings, so there are significant procedural issues there about the capacity of employees to be able to represent the views of the staff.

PN18

Another significant procedural issue is that the company have indicated that they do not want two out of the eight levels of employees currently under the agreement to be covered by the agreement and they are not going to allow those people to vote on that process, whether they are to be covered or not, so there are significant procedural issues that require technical advice and understanding whether that is in fact legitimate or not which currently these staff representatives do not have. There are also significant industrial issues that go to the conditions of employment. I have here, Commissioner, a letter written by one of the staff consultative team members which I would like to tender.

PN19

THE COMMISSIONER: Mr Gardiner.

PN20

MR GARDINER: I take it, Commissioner, that Ms Andelman will present a witness who can prove that document. If she is not able to today then it ought not be tendered.

PN21

THE COMMISSIONER: You want me to simply mark it for identification at this stage.

PN22

MR GARDINER: Yes, Commissioner.

PN23

THE COMMISSIONER: Very well, I will mark the letter addressed to me for identification purposes at this stage as CPSU 2.

MFI #CPSU 2 LETTER ADDRESSED TO COMMISSION FROM STAFF CONSULTATIVE TEAM MEMBER

PN24

MS ANDELMAN: Thank you, Commissioner. We consider from this letter that the employee is aware of today's Commission hearing and is aware of the purpose of this letter. It goes to the issue of the direction sought today. Could I take you directly to paragraph 9 of that letter which says:

PN25

The next meeting is on 10 and 12 February 2003 and the SCT would like the CPSU to be present and participate at the meeting.

PN26

That is the direction we are seeking today, Commissioner, that the CPSU be present and participate at the next negotiation meeting or, Commissioner, if that submission is not accepted that the staff consultative team members be asked the question whether they would like the CPSU to be present and participate at the meeting.

PN27

Before I move on to the technical issues of why you have powers to make this direction, there is a practical matter and that is the timing of the ballot. The company has a close-down throughout January and most people go on leave at the end of this week, so if the Commission grants the directions that the CPSU is seeking that question would have to occur this week or it would have to occur in February.

PN28

THE COMMISSIONER: Do I understand what directions you are asking me to make, the first direction is that you are asking me to direct that the CPSU be party to the negotiations?

PN29

MS ANDELMAN: To be present and participate.

PN30

THE COMMISSIONER: To be present and participate.

PN31

MS ANDELMAN: At the negotiations, which I understand will be held on 10 and 12 February.

PN32

THE COMMISSIONER: Very well, and the second direction, if I am not persuaded by the first is to ask the staff consultative team members whether or not they wish the CPSU to be present and participate.

PN33

MS ANDELMAN: That's correct, Commissioner. The CPSU submits that you have power to make this direction based on the objects of the Act, in particular section 3(c), which deals with the issue of choice, that employees should have choice about what kind of agreement they should be covered by and it is the Commission's role to enable employees and employers to choose the most appropriate form. As that letter from Mr Lyons indicates, employees have asked for that to occur, they have asked for there to be a balanced staff to ask whether there should be a union or a non-union agreement and they have asked for the CPSU to be present and participate. Both requests have been denied.

PN34

We have attempted to resolve this matter at the workplace. The CPSU has attempted to resolve this matter in the workplace by asking these questions directly of Sensis management. Sensis employees have tried to resolve this matter in the workplace by asking Sensis management. There has been no outcome to those requests. That is why we're here, Commissioner.

PN35

I also rely on section 3(d)(i), the objects of act, that is concerned about agreement between employees and employers and the means by which that agreement should occur which I submit also would reinforce my argument that there should be choice, genuine choice for employees which is not available to them at the moment. The only choice they have at the moment is to negotiate or not negotiate.

PN36

I would like now to deal with section 111(1)(d) and (t). I'd like to refer the Commission to a Full Bench decision of this Commission of the CPSU v Telstra, print number 7179 and that decision goes to the issue of whether you have the power to make an order during conciliation or whether your power is confined to your ability to make an order only during an arbitration hearing. In that decision, particularly in paragraph 21, it states that:

PN37

After examining the terms of section 111, we've concluded the powers conferred on the Commission by section 111(d) and (t) are not confined to arbitral proceedings.

PN38

What the CPSU is seeking in this matter is a procedural direction for the views of employees to be heard, for there to be an opportunity for their voices to be heard. We're also seeking another matter to be covered in the directions and that is that Mr Lyons who has been brave enough to put his name to this letter not be approached by the company in a way that may be intimidating to him.

PN39

THE COMMISSIONER: It would be contrary to the act. I don't need to give a direction in relation to that. It would be one of those phrases of bring your toothbrush.

PN40

MS ANDELMAN: I know it's contrary to the act, Commissioner, but you know in practice. We would like that to be heard and that's the reason why I say this on transcript because there is a concern about that issue.

PN41

THE COMMISSIONER: Mr Lyons can have no fear of any action taken against him that would prejudice his employment as a consequence of a document produced in the Commission. It's as simple as that.

PN42

MS ANDELMAN: Thank you, Commissioner. That's the direction we're seeking today. We understand this is the first time we're before the Commission and your help in conciliation, I think was able to crystallise a number of the specific disputes between the parties. However, Sensis is not willing to discuss or to even meet with the CPSU to discuss the possibility of their being a section 170LJ agreement and the CPSU is not at this stage seeking a direction that Sensis enter into negotiations with the CPSU for a 170LJ agreement.

PN43

What we are seeking is just to be present and to participate at the negotiations which actually have not really started. All there has been at this stage is an opportunity for employees to raise some views which we have a copy of. We have all those issues. We have the minutes of the staff consultative team and there'd be no practical problems for the CPSU to participate. Thank you, Commissioner.

PN44

THE COMMISSIONER: Thank you. Mr Gardiner?

PN45

MR GARDINER: Thank you, Mr Commissioner. If I could briefly outline the process to date that Sensis has embarked upon for the purposes of negotiating a section 170LK agreement and then come to its position on what is sought. By way of background, this is the third time Sensis has gone done the path of seeking a section 170LK agreement. It follows two successful attempts, the first being in 1998 being the first LK agreement which was negotiated over a six week period and it was negotiated through a staff consultative team and a management consultative team and that led to the first agreement covering sales staff, primarily clerical and admin based positions.

PN46

This was followed by the second LK agreement, the negotiations for which kicked off in December 2000 and were completed in March 2001. The CPSU is a party to that section 170LK agreement. I'm sorry, I stand corrected, they are bound by that agreement. Again, the process for reaching that agreement was through a staff consultative team and a particular management team.

PN47

The process which was conducted on those two occasions for reaching those agreements is a similar one to the current process. In fact, we would say the current process is an improved version of the previous one. That process involved calling for nominations for the staff consultative team, that process commencing around September 2002 with information to employees about the role of the SCT, its expectations and the process of negotiations.

PN48

As a result of that information, there were 15 employees who now form the SCT, those employees being representative of the various Sensis business units and there being eight members on the management side. Now, the first negotiations session kicked off in November, the first of three proposed sessions although I'm instructed they're not finite and they occurred on 14 and 15 November 2002. They occurred at Werribee Park and so the various members of the SCT were flown in to attend that two day session.

PN49

An issue was raised at that session by the SCT about the CPSU involvement. The SCT raised an issue about the CPSUs involvement. The CPSU were invited to attend the Werribee negotiation session with a view to advising employees during breaks, in particular a two hour break was scheduled for that specific purpose so that any members of the SCT could report to the CPSU as they saw fit.

PN50

Now, one or more members of the SCT raised an issue about CPSU involvement and it seemed the real issue was about the extent to which the SCT felt that they had the technical competence and the experience to engage in the negotiations, that that was the real issue of concern to them. The way in which that concern was met and indeed resolved was by the appointment of an independent adviser being the same adviser who advised the SCT in the last round of negotiations and from the company's perspective, it understands that the SCT was content with that outcome and content to proceed to embark upon the negotiation process.

PN51

It's not that the SCT was without any experience. Indeed, five of the current 15 were in negotiations on the previous occasion so there was some experience there but nevertheless, they raised the issue about technical competence and that concern was met. On the second day, on the 15th, management tabled its issues and the way in which negotiations have been proceeding have been for management to put its issues on the table and then for the SCT to put their issues on the table and either party to do so in the absence of any actual debate, that it simply be a tabling of the issues that each party has and wants to raise and there being a full understanding from the other side as to what those issues are.

PN52

The SCT tabled its issues, some 38 issues at the second negotiation session on 6 December 2002. I'm instructed that many of the issues which were raised by the employer body were ones which pertained quite particularly to Sensis and they were ones which are of particular concern to them as an employee body as opposed to being some generalised claim.

PN53

Now, the independent adviser attended that session and the employees have access to her for some 70 hours, including all of the negotiation time and, of course, that is in addition to their ability to call on the CPSU for any advice or assistance. Now, the next negotiation session is scheduled for 11 and 12 February 2003 with a further session possible in March.

PN54

Now, Mr Commissioner, we say that the process to date has been one which has seen the employer embark upon its choice under the act of pursuing a 170LK agreement. It's done so in a particular context, that being the fact that it's done it four, in fact it's done it two times before so it is not unusual to both the employer, nor is it unusual for the employee body.

PN55

The company has been at pains to put in place a representative body. It's put in place a well structured negotiating process. It's provided support to that process through an independent adviser. It has not prevented access to the union and indeed, the union, of course, is free to exercise its rights of entry and whatever other legitimate organising activities they wish to embark upon.

PN56

Today is the first we've heard of these particular directions that are sought but suffice to say for present purposes that we believe the path which has been gone down today should continue and that should be allowed to mature and take its own course. Ultimately, the employees will decide whether or not they approve the making of an agreement and, of course, that would follow whether the SCT which is represented by union members, whether they believe there is an acceptable - - -

PN57

THE COMMISSIONER: I'm sorry, you say represented by union members. Did that carry any meaning with it?

PN58

MR GARDINER: Simply to say that they are members of the CPSU, but it's not as if -

PN59

THE COMMISSIONER: Is that relevant to you in the negotiation?

PN60

MR GARDINER: It might be relevant to the other side if they say - - -

PN61

THE COMMISSIONER: I said, is it relevant to you whether they're members of the union or not?

PN62

MR GARDINER: No, it's not relevant at all.

PN63

THE COMMISSIONER: Thank you.

PN64

MR GARDINER: I say it solely because it might be put against us that they do not have any voice whatsoever.

PN65

THE COMMISSIONER: Well, they have employees who are their members.

PN66

MR GARDINER: Yes, they do.

PN67

THE COMMISSIONER: Does the union have a voice? That's why I asked whether it was relevant to you and I thought your answer was "no".

PN68

MR GARDINER: It's not relevant to us whether they are union members or not.

PN69

THE COMMISSIONER: So from your point of view, the union don't have a voice, the employees have a voice?

PN70

MR GARDINER: Yes, that's our position.

PN71

THE COMMISSIONER: Yes, I understand.

PN72

MR GARDINER: That's our position and we don't shy away from that. Now, our position is that the directions ought not to be made although -

PN73

THE COMMISSIONER: What do you say about the power question? Are you coming to that? I understand the merit argument you put but I was wondering about the power question.

PN74

MR GARDINER: Well, it's something I would wish to be heard on further.

PN75

THE COMMISSIONER: At 2 o'clock?

PN76

MR GARDINER: I'm not sure if I'd be in a position at 2 o'clock, Mr Commissioner. I accept that there is the power to make a direction out of a conciliation process. So much is clear from the Full Bench decision involving Telstra but to the extent that there are substantive powers which flow from the making of a direction, if the exercise involves substantive powers, then that may call into question the arbitral constraints of section 89A. Now, that's something that we would wish to be heard on further.

PN77

THE COMMISSIONER: It raises an interesting proposition, doesn't it, that if the power is there to direct the union to confer, can it only confer on allowable award matters?

PN78

MR GARDINER: Yes, well, that's right and that's something we do wish to be heard on further.

PN79

THE COMMISSIONER: It makes an interesting dichotomy for negotiations using the corporations power, doesn't it?

PN80

MR GARDINER: Yes.

PN81

THE COMMISSIONER: When would you wish to be heard on that?

PN82

MR GARDINER: Well, in the new year would be my preference, Mr Commissioner, quite frankly. I unfortunately have commitments for the remainder of this week and indeed right up until Christmas eve which could not give me the opportunity to do the research that needs to be done. Now, that ought not be a concern for the other side given that the next negotiation date is mid February. I'm instructed that can be pushed back. We appreciate the Commission has a need for holiday as well so we don't see - - -

PN83

THE COMMISSIONER: Yes, but the unfortunate thing for you is not over the Christmas period.

PN84

MR GARDINER: So we don't see there's any great urgency in this.

PN85

THE COMMISSIONER: So could I just understand that the issue that you want to reserve to address further on and that is firstly, whether the two directions sought constitute the exercise of a substantive rather than a procedural power and if that be the case, whether there are any constraints on the jurisdiction of the Commission in relation to those matters.

PN86

MR GARDINER: Yes. There might also be a preliminary point about the relationship between 111(1)(t) and 170NA which I reserve my position on as well but as I see it, the bigger issue is the one that you've just articulated. There is also the question of evidence, Commissioner, or perhaps the jurisdictional question can be dealt with as a preliminary step.

PN87

THE COMMISSIONER: Well, the evidence doesn't arise if there is no jurisdiction to make the directions. Do you want to put these submissions orally or in writing?

PN88

MR GARDINER: I would be content to put them in writing.

PN89

THE COMMISSIONER: What sort of time frame did you have in mind, Mr Gardiner?

PN90

MR GARDINER: Commissioner, would the end of January be convenient?

PN91

THE COMMISSIONER: Well, if that's the time frame. Does that mean that we have to do something for the meeting that is scheduled for 10 and 12 February, because we would have to give the union an opportunity to respond to your written submissions.

PN92

MR GARDINER: Yes, there may be, depending on the outcome.

PN93

THE COMMISSIONER: How long do you think it would be appropriate for the union to be given to respond to your submissions?

PN94

MR GARDINER: I would have thought no more than a week, that would take is to the first week of February.

PN95

THE COMMISSIONER: Mr Gardiner, it is patently obvious that you are asking from 17 December till the end of January and you have said to the other side they can have a week.

PN96

MR GARDINER: Well, I will bring it forward to mid January.

PN97

THE COMMISSIONER: I don't want to interfere with prior arrangements, I just want to work out a realistic time frame for people to consider these arguments, that's all. It depends whether you think the 10th and 12th is a fixed date, if it's not a fixed date you can have all the time you like.

PN98

MR GARDINER: It's a preferable date.

PN99

THE COMMISSIONER: All right, so we will say mid January, the week ending the 17th, is that appropriate?.

PN100

MR GARDINER: Yes.

PN101

THE COMMISSIONER: Ms Andelman, if I give you an opportunity to reply to the weekend, the 31st, is that convenient for you?

PN102

MS ANDELMAN: That's two weeks, Commissioner.

PN103

THE COMMISSIONER: Realistically there's not going to be much done on either side at Christmas.

PN104

MS ANDELMAN: I think the 31st would be fine, Commissioner. The issue is just about us having an opportunity to have those issues raised and resolved prior to the next scheduled negotiation meeting, so if that can't occur then we would be seeking for that negotiation meeting to go ahead. We would be seeking an undertaking from the employer to that effect, that further negotiation does not proceed until this matter has been dealt with.

PN105

THE COMMISSIONER: Well, they don't need to give that yet because as of the 31st I will know the arguments of the parties and I will then decide what the future programme is, aware of the employer's preference to have the next meeting on the 10th and 12th, but I am also seized of your submission that you don't want that to take place because that then denies you the relief that you seek. I understand.

PN106

MS ANDELMAN: Thank you, Commissioner.

PN107

THE COMMISSIONER: Well, I think this matter has boiled down to a consideration of the application by the union to be present and participate at the negotiations and they have said to me at this stage they don't press one way or the other as to the type of agreement that is sought. The second direction that they seek is that the staff consultative team be asked the question whether or not the CPSU should be present and participate.

PN108

There is a clear difference in view between the parties. The employer asserts that the members of the SCT are happy to negotiate by themselves and don't want the CPSU present and participating whilst the CPSU asserts that members of the SCT would prefer to have the CPSU present and participating.

PN109

These two directions raise different considerations. The first direction raises a consideration as to the rights of members of the CPSU and the CPSU itself to participate in negotiations; having regard to the provisions of the Act that talk about reaching agreement, it may give rise to considerations of freedom of association and what rights attend those freedoms. The second direction sought is simply seeking an expression of view from the people who are currently charged with negotiating whether they want the CPSU present or not.

PN110

I will receive the employer's submission and examine the CPSU submission. I may, having received those, sit again in Sydney on either the 6th or the 7th depending on what arises out of those submissions but I will let the parties know fairly early in the piece because there may be opportunities for response to what has been put. The other thing I will do today is ask for an urgent copy of the transcript and direct that a copy of this transcript be made available to all employees, each to have a copy. This matter is now adjourned sine die.

ADJOURNED ACCORDINGLY [1.40pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #CPSU 1 PARTICULARS TO ACCOMPANY MODUS OF INITIATION PERIOD PN15
MFI #CPSU 2 LETTER ADDRESSED TO COMMISSION FROM STAFF CONSULTATIVE TEAM MEMBER PN24