C2003/967, Transcript of Proceedings [2003] AIRCTrans 979 (21 March 2003)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 4, 179 Queen St MELBOURNE Vic 3000
(GPO Box 1114J MELBOURNE Vic 3001)
DX 305 Melbourne Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS

O/N VT10247
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER BLAIR

C2003/967

NYLEX INDUSTRIAL PRODUCTS
PTY LIMITED

and

AUTOMOTIVE, FOOD, METALS,
ENGINEERING, PRINTING AND
KINDRED INDUSTRIES UNION

Notification pursuant to section 99 of the Act
of an industrial dispute re the entitlement of
an employee to enterprise bargaining agreement
benefits

MELBOURNE

10.05 AM, WEDNESDAY, 5 MARCH 2003

Continued from 17.2.03

PN138

THE COMMISSIONER: Good morning. No change in appearances?

PN139

MS S. ALLISON: I appear on behalf of the National Union of Workers.

PN140

THE COMMISSIONER: Right, Ms Allison, thank you.

PN141

MS ALLISON: Commissioner, I am just seeking to intervene; I wasn't here for the first part of the hearing.

PN142

THE COMMISSIONER: So what are you doing?

PN143

MS ALLISON: I am representing about half of the National Union of Workers. We have also notified the company that we are partaking in the dispute under our dispute resolution in the agreement.

PN144

THE COMMISSIONER: Right, okay. Thanks. All right, Mr Robertson.

PN145

MR ROBERTSON: Thank you, Commissioner. At the last hearing we had, we had a proposal put to us to be dealt with between the union and the company. As a representative of the AMWU, I didn't feel that it was solely my property to deal with that. I felt that if the AMWU made a decision or a concession towards the company in respect of agreements that were in place, that may well have implications for the other unions on site, and that is saying that without reference to the commitment I have already told you about that we had from the company, that our members were covered by these agreements and I will speak about that a bit more in a minute.

PN146

With that in mind, I have spoken to the officials of the respective unions that have members on site and we organised a meeting for last week. Not all the organisers were able to attend, but the stewards did, and we discussed the matter and ultimately a resolution was passed, and I will read that to you if you don't mind:

PN147

That this meeting of Nylex Huntingdale shop stewards, having heard a report on the dispute over the transfer arrangements for employees going to Frankston, note that the matter has been referred to the Commission by management and that a proposal for settlement has arisen from those proceedings.

PN148

The proposal that certain union members are not eligible for the same arrangements as other union members who are affected by the transfer from Huntingdale to Frankston is absolutely unacceptable. We understand that the members who would be disadvantaged by the management's position were given verbal assurance that they would be consulted and have the same entitlements as the rest of the employees at Huntingdale by the General Manager, Austrim Automotive Plastics, at a meeting held at Huntingdale on 27 July 2001.

PN149

Accordingly, without prejudice, these union members must receive the same access to processes and benefits in relation to transfers as all other union members at Huntingdale. This unfair situation must not be allowed to occur again and any doubt can be overcome by assuring that all union members are party to an enterprise agreement. All technical, supervisory, administrative and clerical members must be included in the next EBA negotiated by the AMWU.

PN150

The stewards at Huntingdale are of the strong view that this matter must not be allowed to drag on and demand that it become a priority and that it be resolved by Friday, 7 March.

PN151

And the emphasis is "by" not "on" as the stewards are pointing out to me. We relayed that resolution to Bob Humphries and had a discussion, and Bob was clearly of a different view of the proceedings that occurred last week as to what we were.

PN152

We also were aware that John Cloonan was on site on the day of that meeting, and we asked Bob Humphries to get John Cloonan to be involved in the discussion. Because as I said to him t the time, John Cloonan can resolve this thing in one minute. All he needs to come in here, just to confirm that the commitments that I reported to the Commission last week were a fact.

PN153

Now, Bob Humphries was gone for some time from the meeting, to the point where we wondered what was happening, and we went out looking for him. We found him returning to the meeting, down in the alleyway. He said that John Cloonan wasn't prepared to meet with us. Commissioner, that to us is a real worry. I mean, we weren't asking John Cloonan to come and negotiate with us, or make any further commitments on behalf of the company. All we were asking him to do was to come and confirm the events of 29 July.

PN154

I must say that I have some concerns as to my own credibility in this matter, as to whether people believe I am being truthful. But I put it to you, Commissioner, and you have known me for quite a while, that even me, I think you would say if I had a meeting with an employer about the future job security of my members, and that employer had said to me he is not prepared to come to an agreement, that I wouldn't leave it there. Because the facts were that John Cloonan gave me that commitment, that our members would be covered by the processes and the benefits of the agreements that were in place. I reported that to my shop stewards, and they were satisfied with that.

PN155

So, is the situation that any commitments that John Cloonan has given are of no worth now to the company, in spite of the fact that he was a General Manager at the time? Where do the agreements that he signed stand now? Is the company not prepared to stand by those? Or do they believe that because a man gave a verbal commitment and not a written commitment, that it is worth nothing?

PN156

So, simply put, Commissioner, I put it to you that the commitments that were made back at that time must still stand, and apply to the members who I represent. If the Commission pleases.

PN157

THE COMMISSIONER: Thank you. Ms Allison.

PN158

MS ALLISON: Thank you, Commissioner. I support Mr Robertson's submissions. Commissioner, I would just like to add that custom and practice at the Nylex Huntingdale site has been that agreements between the unions also cover clerical workers. Custom and practice has been with the certified agreement that the pay rise, the amount of the increase, and the time that the increase takes place also applies to the clerical workers. That also applies to income protection and other provisions in the agreement.

PN159

For the company to now turn around and say that an agreement reached between the unions and the company regarding transfer and redundancy does not apply to a particular clerical worker is contradictory to past practice, and we would say also smacks of discrimination.

PN160

I would just again like to reinforce that we had a verbal commitment by management that the agreement would apply to clerical workers, and now that that particular member of management is refusing to meet with the unions, I think the Commission can draw some fairly obvious conclusions. If the Commission pleases.

PN161

THE COMMISSIONER: Thank you. Yes, Mr Levin.

PN162

:MR LEVIN: I think the first thing I would just mention, Ms Allison just made a comment, a verbal assurance that it would apply to clerical workers. I don't know if that was a mistake, but perhaps it will be clarified. Is it now being said - it has never been said before - is it now being said,that he actually specifically said, "Oh, and this applies to clerical workers." So just before I respond, I just want to clearly understand that.

PN163

THE COMMISSIONER: Sure.

PN164

MR ROBERTSON: If I may, Commissioner - - -

PN165

MR LEVIN: Well, I am sorry, Ms Allison made the comment: I would like her to explain it, just so I can understand from the NUWs position, not the AMWU. It was made by the NUW.

PN166

MR ROBERTSON: Commissioner, I was in the meeting, and I - - -

PN167

THE COMMISSIONER: Well, no, hang on Mr Robertson. I think that is a fair question by Mr Levin. Ms Allison did actually make the comment.

PN168

MS ALLISON: Thanks, Commissioner. I am indeed going on Mr Robertson's comments regarding his meeting with the company.

PN169

THE COMMISSIONER: Right.

PN170

MR LEVIN: Thank you, sir, that is fine. The position is that the same thing that we said last time we were here still applies, and that is that the shop floor and production workers were represented by shop stewards, and they met with Mr Cloonan about the change. That was not white collar office staff, it was not managers, it was not office or admin staff: none of them were represented at that meeting. And he said that if you go down, if those people go down, shop floor and production workers, the people being represented, they are not your members, and then come back they can be made redundant.

PN171

Now, there is two points to be made about this. The first thing is that Mr Cloonan, I am instructed, is very clear about this, and he does not understand what all this fuss is about: because he says they full well know, I am instructed, that this was the shop floor and the production workers. There was never any discussion about white collar office staff or managers, or admin staff, because the whole situation was different for them. A different scenario: some going, some not going. He was not talking about everybody, and he, I am instructed, asserts that that was known. And if

PN172

Maris were not someone who had previously had a connection 9 years ago with the AMWU, none of this would even be happening.

PN173

The second observation is that the assurance given in respect of the shop floor and production workers was, as I said last time, that they can come back and be made redundant. Not, "Okay, and now everyone who is not covered by the EBA who would come back, who we are not talking about and who are not represented, will also now magically be covered by the EBA and get EBA redundancy."

PN174

Now, it is asking the Commission and ourselves to take two huge leaps. One, that the assurance made in respect of shop floor and production employees now must apply to everybody on the site. That is one leap that the company will not be making. The second leap is that even if you take that leap, everyone is to now be covered by the EBA, even if they are not eligible to be covered by it. It is just a nonsense as far as the company is concerned.

PN175

We do not know what signed documents Mr Robertson is talking about. He asked the question, perhaps rhetorically - I don't want to put too much emphasis, but I was not sure whether he was just speaking perhaps metaphorically, about whether the company is going to now not abide by documents that he signed. I wasn't sure if that was a reference to some particular document that relates to this dispute, so I don't place much emphasis on that. But I thought if there was a document that it is being said that has not been complied with, it would be worthwhile just tabling that, just so that we all understand that.

PN176

I am also instructed that Ms Allison's submissions are incorrect. It is not the case that every single thing that happens to the shop floor and production workers happens to white collar admin staff. Some things do, just like in a lot of places, pay rises can transfer across: but it does not mean that all of a sudden the entire company at this site is now - whatever happened to the shop floor, it is all the same for everyone now.

PN177

For many, many years, Commissioner, we have all heard this argument; we all understand it. As far as the union is concerned, if one person gets anything on site, everyone has got to get it. We understand that. It is part of the Socialist manifesto, the unions' proposition, and I do not contest it. I don't sort of say that as a principle that it needs contesting here. What we say is that we just don't as a company intend to be made to agree with the unions' philosophy about how things should work on a site.

PN178

To the contrary, we say that it would mean that a company could never be generous to one person, because then everyone wants it, and says, "Oh, but custom and practice, one person gets it, we all get it." That is why the company takes the position of saying that this accounts payable person will continue to be treated as the accounts payable people have been treated, and as the other accounts receivable and white collar people be treated: and that is differently - yes, differently - than the shop floor and production employees.

PN179

So at the end of the last hearing. what you said to the union was, go away, have discussions with the company and put a proposal to them. Unfortunately, the only thing that came back was an informal comment from Mr Robertson to Bob Humphries that, the same deal, we just want the whole EBA to apply.

PN180

So, unfortunately, there has just really been nothing more than more rhetoric from the union, telling us, well, you know, you have just got to do it. This suggestion that somehow the conversation that Mr Cloonan had in relation to the shop floor and production employees with the shop steward meeting, now just all of a sudden it applies to everybody.

PN181

I don't think there is much more that we can really add.

PN182

THE COMMISSIONER: I am not sure it is a Socialist manifesto that says that, if they have got it, I want it. I think that is generally a view of the community as a whole. If somebody else has got something, and they think it is better than what they have got, then they would generally want it. I don't consider myself a socialist, but I am sure that if my neighbour got a better bin than I got, then I would probably want it too.

PN183

MR LEVIN: I won't engage in a debate in relation to these matters.

PN184

THE COMMISSIONER: No.

PN185

MR LEVIN: All I am suggesting is we understand that it is a union belief, and it is part of socialism that everyone just gets the same. But even in socialism, there is plenty of examples of where different people are less equal than others.

PN186

THE COMMISSIONER: Isn't it the same that everybody is created equal; it is just that some are more equal than others? Yes, Mr Robertson.

PN187

MR ROBERTSON: Well, if it helps, Commissioner, there isn't a Socialist manifesto. There is a Communist manifesto. I suggest that Mr Levin goes back and studies his Marx.

PN188

I don't know what meeting Mr Levin is talking about. The meeting I am talking about was conducted on 29 July. It was a meeting that I sought with Mr Cloonan. Graeme Bird was there. The purpose of the meeting was to discus the security of employment of the people who I represented, which were technical, supervisory and clerical people within Huntingdale.

PN189

As I say, the assurances I got from Cloonan were that, yes, you will be covered by those arrangements that are in place. If he had not said that, I mean, what sort of a union official would I be, going back to our members and saying, look, let's not worry about it. It is a crazy idea.

PN190

In terms of a casual comment, I sent this letter to Paul Baker, faxed it probably Monday. The last para reads:

PN191

On leaving Huntingdale site I contacted Commissioner Blair and brought him up to date with developments, and he has listed the dispute for further hearing on Wednesday 10 March. Accordingly, we will need to act quickly if we are to resolve this matter before that hearing.

PN192

And if that is not an invitation for discussion, I don't know what is, Commissioner. I don't want to confuse the matter with the other details that are being raised. I think the primary issue we have got to get to grips with here is, was there a commitment given on 29 July, or was there not? Because if there was, then that fixes it, doesn't it?

PN193

THE COMMISSIONER: There are three things, as the Commission sees it. As I recall last time we had the matter before us, the person in question has been wanting to depart from the company for some time, as I understand it, and seeks a package to do so. I must say the Commission has a bit of an in-principle objection to somebody who wants to depart from the company and get a package because they want to depart: which is quite different to somebody being transferred to some other place, and then as I understand it, there would be a consolidation of operations. In this area, the clerical area, I think it was accounts payable was the area, which may mean eventually there will be a redundancy, or maybe a couple of redundancies, but not in the short term.

PN194

The other issue is that the union believes that there was a very clear undertaking by Mr Cloonan that any package that applied in terms of transfer from Huntingdale, would apply to those people that would be members of your union.

PN195

The other issue is whether or not, even if there was no clear undertaking, whether or not as a matter of law, those that are members of your union are covered by that particular enterprise agreement. Now, we have not got to that issue yet. But I am just curious as to why, Mr Levin, Mr Cloonan has not been prepared to meet with the unions, given that he seems to have been the person there is a very clear assurance, from their point of view.

PN196

MR LEVIN: He lives in another state, sir: in South Australia;

PN197

THE COMMISSIONER: Well, we will all go to South Australia.

PN198

MR LEVIN: He was here the other day.

PN199

THE COMMISSIONER: Yes, that is right.

PN200

MR LEVIN: But I am instructed that his attitude is, he always was talking about production and supervisory staff. He says they know it, and he just doesn't want to get into more, and more, and more, being dragged into other issues. He gave the assurance in respect of the shop floor and production workers. It is as simple as that. He doesn't see that there can be anything more to talk about, that the General Manager of the business cannot deal with.

PN201

If there is to be anything said, as far as I am instructed, in relation to a deal being reached to resolve the matter, that is a matter for Mr Paul Baker. He sticks by his assurance that all of the shop floor and production workers who go across and come back, if they come back then they get made redundant.

PN202

THE COMMISSIONER: I would have to say it is not as simple as saying Mr Cloonan has his viewpoint, and therefore he is not going to participate in any discussion about that. Because if I have to, I will subpoena him, and he will participate in discussion.

PN203

MR LEVIN: Of course.

PN204

THE COMMISSIONER: Because what is fundamental to this, is that - Mr Robertson has touched on it - what is fundamental to this is, it is his word, that is, Mr Robertson's word, in terms of what he believes was an assurance from Mr Cloonan that things would apply differently to what are currently applying. And it goes to Mr Cloonan's word. Now, for Mr Cloonan to say, "Well, I am not going to participate, because that is the end of it", is not right. Because while we are unable to settle it at the moment, it may mean the involvement of Mr Cloonan to try and shed some light on what was actually said, from his perspective, and what was meant from his perspective, rather than the Commission simply getting Mr Robertson's.

PN205

MR LEVIN: I understand that. But it is difficult, of course, for a Commission, or anyone in between, when Mr Cloonan just says, "No, I am absolutely clear on what I said, and I believe they know it full well." And Mr Robertson saying, "No, I took a completely different opinion, and if someone joins our union, whether covered by the EBA or not, whether they are eligible to be a member or not". that is what he was really talking about.

PN206

Now, I don't know, because I was not there. I am not calling anyone a liar. All I can do is convey the instructions I get. So I don't question what Mr Robertson said. I just, on my instructions, disagree with it.

PN207

THE COMMISSIONER: Yes.

PN208

MR ROBERTSON: Commissioner, Mr Levin keeps avoiding the point of the 29th July.

PN209

MR LEVIN: I will address that. Mr Bird - - -

PN210

MR ROBERTSON: If I might, Commissioner. The 29th July, that meeting was called specifically on my request to deal with that particular issue. There wasn't any discussion about production workers. There wasn't any discussion about tradespeople, or others. It was specifically about the people who had joined the TSA Division of the AMWU. We sat up there, and we discussed it. Mr Cloonan went over about, you know, his views about consultation, and all that sort of stuff. He told us how the NUW operated in South Australia where he came from, and all those sorts of things.

PN211

The purpose of the meeting was, one, to say, G'day, because he was new to the scene. And, secondly, that the primary issue, the principal issue in terms of my members at that point of time was, what is going to happen to us. And that is the issue I was raising with him that day.

PN212

THE COMMISSIONER: Yes, Mr Levin.

PN213

MR LEVIN: I think, rather than me interpolating, Mr Bird is here.

PN214

THE COMMISSIONER: Yes, he was there.

PN215

MR LEVIN: Yes.

PN216

THE COMMISSIONER: Yes. Mr Bird.

PN217

MR BIRD: Thank you, Mr Commissioner. That meeting that Mr Robertson refers to, it was initiated by John Cloonan, and I was the one who arranged the meeting. John Cloonan wanted to speak with the union, and all unions which he spoke to individually, on his approach to industrial relations, and how it worked, and how the processes actually work. That was the essence of the actual meeting that took place on that said day with Mr Robertson.

PN218

THE COMMISSIONER: Can you recall whether anything specifically was raised regarding the application of the redundancy provisions as it may apply to AMWU per se?

PN219

MR BIRD: No, I can't, Mr Commissioner.

PN220

THE COMMISSIONER: Right. Okay, thanks.

PN221

MR LEVIN: I think we just need to clarify a point that I have been reminded of. This meeting back in July, this had nothing to do with the three month reallocation thing. That was Mr Casey, the Managing Director. That was August. So there is a separate - that meeting could not have contemplated this, because that three month thing - - -

PN222

THE COMMISSIONER: Wasn't known.

PN223

MR LEVIN: Well, it wasn't known, and it didn't involve Mr Cloonan, it was Mr Casey - no, I am sorry, at the time he was the head of the whole Division.

PN224

THE COMMISSIONER: Right.

PN225

MR LEVIN: The General Manager was not Managing Director at that stage. He was Mr Cloonan's boss, if you like.

PN226

THE COMMISSIONER: All right. There is two ways we can go. We can again try to see whether or not we can reach some settlement through conference. Or, the second part is that the parties run an argument as to whether or not in the Commission's view the accounts payable people are entitled to be covered by the certified agreement. And the argument either gets up, or fails on its merits. What is your preferred option? Mr Robertson.

PN227

MR ROBERTSON: Commissioner, initially, I think probably another conference wouldn't do any harm at all.

PN228

THE COMMISSIONER: Ms Allison?

PN229

MS ALLISON: Commissioner, that is my opinion too.

PN230

THE COMMISSIONER: Right. Mr Levin.

PN231

MR LEVIN: Well, as you can expect, we are very happy to have the matter tested as to whether Ms Radisavljevic is covered by the terms of the EBA, because it is pretty obvious that she is not. I am instructed we don't mind having a discussion, but our preferred position would be to have the matter properly tested.

PN232

THE COMMISSIONER: Well, obviously if we don't reach some understandings in conference, then we will just set a date for the more formal process, I think.

PN233

MR LEVIN: I can get further instructions about that, if we cannot resolve it in conference. Thank you, sir.

PN234

THE COMMISSIONER: Sure. Okay, the Commission will go into conference.

SHORT ADJOURNMENT [10.33am]

RESUMED [11.27am]

PN235

THE COMMISSIONER: Mr Levin, I understand that you wish to clarify something.

PN236

MR LEVIN: Yes. I just wish to clarify that the comments I was making in relation to the discussions about the relocation deal were Mr Casey, as I said at the last hearing. I just - for certainty, I wasn't talking about Mr Cloonan making those comments about relocation. Thank you, Commissioner.

PN237

THE COMMISSIONER: Okay. Thank you. What the Commission would like is for the union to go away from today's proceedings and conference to draw up a proposal in regards to Ms Radisavljevic. To put that to the company. Hopefully, you might be able to do that by close of business tomorrow night, Thursday, the 6th. I say that in order for the company to look at that, because it would be the Commission's intention to reconvene on Tuesday 11 March at 2 pm for report back and, if possible, further conference to see whether or not we can finalise this issue. Is that clear with the parties?

PN238

MR LEVIN: Yes, Commissioner.

PN239

MR ROBERTSON: Yes.

PN240

THE COMMISSIONER: All right. The Commission will reconvene on Tuesday at 2 pm, 11 March, 2003.

ADJOURNED UNTIL TUESDAY 11 MARCH 2003 [11.28am]