C2003/641, Transcript of Proceedings [2003] AIRCTrans 608 (25 February 2003)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 4, 60-70 Elizabeth St SYDNEY NSW 2000
DX1344 Sydney Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER SMITH

C2003/641

APPLICATION FOR AN AWARD

Application pursuant to section 111(1)(b)
of the Act by the Community and Public
Sector Union for an award

SYDNEY

12.23 PM, FRIDAY, 7 FEBRUARY 2003

PN1

MR S. JONES: I appear for the CPSU the Community and Public Sector, your Honour.

PN2

THE COMMISSIONER: Thank you.

PN3

MR L. BENFELL: If it please the Commission, I'm not too sure if I'm appearing or seeking leave to appear? We are named parties to that application for to the order, to be issued. But I will seek leave, Commissioner.

PN4

THE COMMISSIONER: I see. Thank you, Mr Benfell.

PN5

MR BENFELL: Sorry, on behalf of the CEPU.

PN6

THE COMMISSIONER: That is all right. Yes, Ms Barratt?

PN7

MS K. BARRATT: If the Commission pleases, Employers first appearing on behalf of two companies, Flocom and Macrocom. Authorities have been provided to the Commission for employers first to act on their behalf in this matter.

PN8

THE COMMISSIONER: Yes, thank you, I have those authorities.

PN9

MS BARRATT: Thank you.

PN10

MS M. IRWIN: If the Commission pleases, I seek leave to appear for People Telecom.

PN11

THE COMMISSIONER: Thank you.

PN12

MR J. DE UNAMURO: If the Commission pleases, for Employment Relation Strategies on behalf of Pocket Mail. I seek leave from the Commission to appear on behalf of - - -

PN13

THE COMMISSIONER: Thank you. Any objections for the applications for leave to appear? Leave is granted. Any objections to the application for leave to intervene? Leave is granted. Now, Mr Jones?

PN14

MR JONES: This is an application by the CPSU for the making of an award to be determined to Telecommunication Services, Roping In Award No 1/2003. The effect of that award if made, Commissioner, would be to make the employer's respondent to this proceeding subject or require them to provide the benefits and obligations to their employees. The same benefits and obligations in relation to their employees as those provided by what I might call, the Parent Award, the Telecommunications Services Industry Award 2002, an Award made by the Commissioners' currently constituted in November 2002.

PN15

Commissioner, there has been some discussions amongst the parties currently represented as to the best way to deal with these proceedings and can I advance the Commissioner of what the parties currently represented, have agreed, but also foreshadow that there is one party who the union applicant seeks to have treated differently.

PN16

THE COMMISSIONER: Yes.

PN17

MR JONES: It is the agreement amongst the parties. The union here today and the employer parties that that the parties be given the opportunity to meet and confer. We note that the Commissioner has listed a fine - a notification of an alleged dispute between the CEPU and a similar group of employers on 17 February.

PN18

THE COMMISSIONER: Yes,

PN19

MR JONES: On that basis - - -

PN20

THE COMMISSIONER: I think or thereabouts, I will just check with my associate. Yes, we have go.

PN21

MR JONES: It seems logical to all of the parties that the matter be stood over for a re-list of a Hearing approximately a week after or subject to the Commission's availability after that date.

PN22

THE COMMISSIONER: Yes, thank you. After the 17th? Yes.

PN23

MR JONES: Yes, if the Commission pleases.

PN24

THE COMMISSIONER: Now, did you want to put any submissions in relation to the letter I've received and provided to from the Chamber of Commerce and Industry in Western Australia?

PN25

MR JONES: Commissioner, I have - I have seen a copy of a letter which the Commissioner refers to.

PN26

THE COMMISSIONER: Yes.

PN27

MR JONES: Can I say this? Firstly, the union - the first time the union saw this letter was this morning. We noted that - when we read the letter this morning, that the Chamber did not intend to appear today to represent their client, but were pleading as a defence to the application, the existence of purported bargaining period, they have given effect to by a notice of an intent by the employer, an alleged notice of intent by the employer, served upon the union on 31 January and I wish to make submissions in relation to that and the consequences of that.

PN28

It is our submission - it is our application that an interim award be made in respect of this company for the reasons which I wish to outline.

PN29

THE COMMISSIONER: Today?

PN30

MR JONES: Yes, Commissioner.

PN31

THE COMMISSIONER: Yes, very well.

PN32

MR JONES: Can I provide the Commission with a copy of a letter which was forwarded to the union from the Chamber of Commerce and Industry, Western Australia, dated 5 February.

EXHIBIT #CPSU 1 COPY OF LETTER FROM CHAMBER OF COMMERCE AND INDUSTRY, WESTERN AUSTRALIA, DATED 5 FEBRUARY, TO THE UNION

PN33

MR JONES: Commissioner, this letter dated 5 February was in response to correspondence sent by the CPSU to the Chamber after they initiated - or purported to initiate a bargaining period on 31 January. In the letter to the Chamber, we asked them to provide us with a copy of any proposed agreement that they intended to make. In short, Commissioner, the companies purport to have initiated a bargaining period with the union and about that we make a number of submissions. We draw the Commission's attention to a statement made in this letter by Mr Geoff Blyth, on the second page of the letter.

PN34

Perhaps before I speak of those. I advise the Commission the company has for some time been intending to and indeed has made a section 170LK Agreement with its employees in Western Australia.

PN35

THE COMMISSIONER: Has made one?

PN36

MR JONES: Has made one. The agreement has been made.

PN37

THE COMMISSIONER: And certified?

PN38

MR JONES: It has not been certified. The agreement has been made - - -

PN39

THE COMMISSIONER: It hasn't been lodged?

PN40

MR JONES: It has not been lodged.

PN41

THE COMMISSIONER: No.

PN42

MR JONES: But it has been made.

PN43

THE COMMISSIONER: The Senior Deputy President in charge of the panel is aware of the possible interaction between the application you make and the lodging of the 170LK application?

PN44

MR JONES: I thank the Commissioner for that advice. Advised of that, I make the following brief submissions.

PN45

THE COMMISSIONER: Yes.

PN46

MR JONES: We submit this, that there is no bargaining period because no notice was initiated. If I draw the Commission's attention to the paragraphs beginning:

PN47

We are now instructed, the vote for the section 170LK Agreement has been an overwhelming success. However, it still remains to be approved by the Commission. Notwithstanding the section 170LK Agreement may be approved by the Commission, it remains open to be digital and the CPSU to negotiate for an agreement that is to take effect after the expiry of the 170LK Agreement.

PN48

And if I can interrupt my quotation and advise the Commission that that date would be some time in December 2005, yes, that that agreement could commence. Any agreement made between the company could commence in December 2005. In those circumstances, and this is where the company reveals it true position. In those circumstances, B Digitals ceased the bargaining notices protecting its bargaining position as the present safety net awards for employees remain unchanged during such negotiations.

PN49

So it is blatantly clear that the employer's intention in sending these purported notices to the union is not to negotiate an agreement but it is an attempt mistakenly, to prevent the Commission from making an award during a 3 year period. It is a mistaken attempt by the employer and those representing the employer because as the Commission knows, there is a condition precedent to the initiation of a bargaining period and that is that the employer actually intends to make an agreement. Section 170MI of the Workplace Relations Act makes this perfectly clear. Section 170MI(1) provides that an employer or an organisation of employees or an employee acting on his or her behalf, and on behalf of other employees, wants to negotiate an agreement.

PN50

Nothing could be clearer in this instance that there is no desire, no desire whatsoever in the employee to negotiate an agreement. So everything that hangs off that then dissolves, there is no intent by this employer to negotiate the agreement. Their only intention in initiating this bargaining period is that they forestall any arbitral action by the Commission. So we ask the Commission to dismiss any notion that you are prevented from making an interim award on the basis of the existence of some alleged bargaining period. There is no bargaining period in - there is no notice.

PN51

THE COMMISSIONER: You also have to follow that the making of the agreement didn't terminate the bargaining period if one could have existed.

PN52

MR JONES: It is an attractive proposition and we looked at that, Commissioner, but unfortunately the Act is unfortunately worded in this respect in the way that it refers to negotiating parties and the union or the employees are not the employees with whom the company has made - or purported to make the 170LK agreement are not negotiating parties in the purported bargaining period.

PN53

THE COMMISSIONER: So you say they actually constitute a sham?

PN54

MR JONES: It is a sham, it is a cats paw, it has absolutely nothing to do with the intent of the Act, there is absolutely no intention of the company to attempt to make an agreement, it has no such desire.

PN55

THE COMMISSIONER: Are you aware of the Rothman State Award that may be used for the purposes of the no disadvantage test?

PN56

MR JONES: I cannot assist the Commissioner. I'm advised there is an existence of State Clerks' Award which may cover the appropriate award. If the Commission does not agree with me on that point, then I think nothing could be clearer than that fact that this is a sham. There is another relevant fact here, no bargaining period exists, of course, even if the notice is good, the bargaining period does not commence to either tomorrow morning or Monday morning, because a bargaining period does not commence until 7 days - the end of the seventh day after the notice is initiated. So the notice was purported to be sent to the union on 31 January, we don't trouble with it - it was faxed to us.

PN57

The actual letter was sent and received to us by post on 5 February, we don't trouble with the fact that it was received by facsimile on 31 January, but no bargaining period exists at the moment, because the 7 days have not expired.

PN58

THE COMMISSIONER: Can you direct me to the section in the Act?

PN59

MR JONES: Section 170MK of the Act.

PN60

THE COMMISSIONER: Yes, I follow and when did you say you received it?

PN61

MR JONES: On the 31st, at approximately 10.30 am on the 31st.

PN62

THE COMMISSIONER: Now, you say the effect of 170MK has a direct bearing on the operation of 170MN, that is a prescription on the Commission arbitrating on the matters at issue.

PN63

MR JONES: Yes, because the bargaining period - the prescription of arbitration only exists when a bargaining period exists.

PN64

THE COMMISSIONER: Yes, I follow. Yes?

PN65

MR JONES: Our cursory analysis of the proposed agreement the company seeks to have certified is that it will have a tough time meeting the no disadvantage test.

PN66

THE COMMISSIONER: Well, who knows?

PN67

MR JONES: If this award is made. That is a finding for the Commission. It is relevant only to the intent. It is relevant to - - -

PN68

THE COMMISSIONER: Well, it might be debatable about the relevance or otherwise of an award made after an agreement is made and prior to certification.

PN69

MR JONES: The standard test, the relevant test is the time of certification, Commissioner.

PN70

THE COMMISSIONER: I only raise the issue. I don't make any observations other than that at this stage.

PN71

MR JONES: Mindful of the Commission's commitments today.

PN72

THE COMMISSIONER: That is all right.

PN73

MR JONES: I make these submissions. We press the Commission to make an award in the form of the order sought against or in respect of CPSU, the Community and Public Sector Union and B Digital Limited and the other companies within the B Group, the list in shorthand.

PN74

THE COMMISSIONER: Yes.

PN75

MR JONES: In the circumstances it is probably most appropriate that the award be made on an interim basis. We submit that the merits of making an award are those found by yourself when you made the parent award in the decision which you recorded which was recorded in print 924683 where you found, Commissioner, at paragraph 6 that the award was appropriate for employees engaged in work in this industry, that it met the requirements of the Act and the relevant test case standards.

PN76

We additionally submit, Commissioner, that the employees of this company are entitled to the safety net award, particularly in circumstances as this and nothing could be more inimical to the public interests than rewarding sharp practice such has been exhibited by those representing the employers, the employers and those representing them and on that basis an award should be made on an interim basis in the form sought by the union, if the Commission pleases.

PN77

THE COMMISSIONER: Thank you. Mr Benfell, do you have a dispute finding with this company?

PN78

MR BENFELL: Commissioner, we have a dispute. It has not been formally found by the Commission. We've notified the Commission of the dispute. It is to be heard on 17 February.

PN79

THE COMMISSIONER: In relation to this company?

PN80

MR BENFELL: Yes.

PN81

THE COMMISSIONER: B Digital?

PN82

MR BENFELL: Yes.

PN83

THE COMMISSIONER: I see. Okay, thank you, Mr Benfell. What I will do is this. I will save and except for that B Digital, B Interactive and B Mobile, I will adjourn the matter pending discussions between the parties and I will list it as shortly as I can after the 17th. In relation to B Digital Limited and B Interactive and B Mobile, collectively known, I will accede to the request of the CPSU and I will make an interim award with the CPSU only at this stage and the interim award to be in the terms of the Telecommunications Services Industry Award 2002.

PN84

I will forward a copy of the transcript to Mr Blyth and give him the opportunity of addressing the issues. I make the interim award at this stage out of an abundance of caution and on the submissions put but without any prejudice to Mr Blyth arguing for the revocation of the interim award.

PN85

The award will be made from today. I direct, Mr Jones, for you to prepare draft orders for the making of the award. It may be that I list the matter for further hearing having received Mr Blyth's submissions in relation to today's proceedings. Are there any other further matters? I grant leave to the CEPU to raise the matter of becoming party to that award when a dispute finding is made. Any other matters? All right, thank you for your assistance. The matter is adjourned sine die.

ADJOURNED INDEFINITELY [12.42pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #CPSU 1 COPY OF LETTER FROM CHAMBER OF COMMERCE AND INDUSTRY, WESTERN AUSTRALIA, DATED 5 FEBRUARY, TO THE UNION PN33