D2003/37, Transcript of Proceedings [2004] AIRCTrans 1183 (29 March 2004)

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TRANSCRIPT OF PROCEEDINGS


O/N 6432

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT LACY

D2003/37

APPLICATION FOR ALTERATION
OF ELIGIBILITY RULES

Application under section 158(1)
RAO Schedule by Australian Municipal
Administrative, Clerical and Services
Union to alter eligibility rules

MELBOURNE

11.26 AM, WEDNESDAY, 17 MARCH 2004

Continued from 30.1.04

PN116

THE SENIOR DEPUTY PRESIDENT: Any change in appearances? What is the situation, Mr Nucifora?

PN117

MR NUCIFORA: Since this matter was last heard before your Honour there was to be a further hearing on 4 March, that was postponed to today's date. We don't believe in any way that postponement affected attempts by our organisation and most, if not all the objectors, to try and meet in that time. I thought what I might do for the record, tender copies of letters that were sent out to the objectors in relation to the meeting with them and also our response to the objection as required - as available under the rules, under the regulations, sorry, in relation to response with 14 days.

PN118

The first one I want to table is a letter to the Shop Distributors and Allied Employees Association, Mr Blandthorn is present today. If I may tender that as an exhibit.

PN119

THE SENIOR DEPUTY PRESIDENT: Have we marked any exhibits in this yet? I do not think we have, have we?

EXHIBIT #ASU1 LETTER TO MR BLANDTHORN DATED 18/02/2004

PN120

MR NUCIFORA: ASU1 is correspondence to Mr Blandthorn, as indicated, and since that letter was sent out - it is dated 8 February 2004 - I have spoken to Mr Blandthorn, including earlier today before this hearing. Unfortunately, on the two occasions, both of us have been quite busy in a number of areas and we have not yet had a chance to sit down and discuss any possible area of settlement. I do not want to state anything further than that. Mr Blandthorn and myself will seek to meet as soon as possible to discuss settlement.

PN121

Attached to exhibit ASU1 is a copy of our response to what we refer to as the answer to the objectors under regulation 124(5). We do not normally do that and in any other application where we have been accepted, that does not normally happen but it was something that was raised in the context of an earlier hearing in this matter before Vice President Ross. It seems discretionary under the regulations and we followed it nonetheless. It is discretionary in the terms of the time you should do it and it probably does not enlighten anyone in terms of the objection.

PN122

Clearly, from our union's point of view, we are not - we were not seeking to concede anything but we did, at an earlier hearing, I think before yourself, seek to establish whether the objectors were happy to meet with us to discuss their objections. In terms of the SDA, we will be seeking to meet as soon as possible and we do not believe that that will cause any major problem with this application. Not in terms of settlement at this stage, but in terms of the time required to do that. In relation to the CPSU, if I may tender as an exhibit, copy of correspondence of Adrian O'Connell, Joint National Secretary of the Community and Public Sector Union.

EXHIBIT #ASU2 LETTER TO ADRIAN O'CONNELL DATED 18/02/2004

PN123

MR NUCIFORA: Your Honour, ASU2 is a similar letter to the earlier one to the SDA with the attached response, answer to the objection. We were seeking to organise a meeting during - what we thought to be before 4 March. That has not occurred and we do not in any way blame the CPSU. We are seeking to make contact with them as soon as possible although I might just add it does seem like there is anyone from the CPSU here today. Mr Rich has a copy of this letter and is referred to at the bottom of the letter and we would be seeking to make contact with Mr Rich to have some discussions with the CPSU about their objections.

PN124

We do not believe there is any opposition to that from the CPSU and we would seek to do that as soon as possible. I think the other issue between ourselves is their officials involved in this matter are based in Sydney and we are based in Melbourne. From our union's point of view we are seeking - any of the objectors that are interstate, to at least have a teleconference to establish whether there is any common ground in terms of pursuing all avenues to see whether a settlement is possible. That is in relation to the CPSU.

PN125

In relation to - we are getting to the sort of, I guess it seems like it is deliberate, to the harbour end of the objection, which gets close to our areas of interest. We have written to the CEPU, to Mr Peter Tigae, the National Secretary. If I may table that as an exhibit - sorry, Mr Shaw should have a look at that before we tender that.

PN126

THE SENIOR DEPUTY PRESIDENT: No objection to that, Mr Shaw?

PN127

MR SHAW: No.

EXHIBIT #ASU3 LETTER TO MR PETER TIGAE DATED 18/02/2004

PN128

MR NUCIFORA: Your Honour, ASU3 is correspondence to Mr Tigae, similar to the earlier ASU2 and ASU1, with the attached answer to their objections and also seeking to organise a meeting with them. Now, we did meet with the CEPU and we met with the Divisional President - the Telecommunications Division of the CEPU President, Mr Colin Cooper and Mr Noel Bretag on 25 February. Present at that meeting was myself, National Secretary Mr Paul Slate and Assistant National Secretary, Ms Linda White.

PN129

At that particular meeting we did seek to try and establish whether there was any common ground. Without going to, of course, what were without prejudice discussions, we would be prepared to say, on the record, without conceding anything from our union's point of view, that we sought to raise another application the CEPU have, and that is in D2003/7 CEPU application to cover call centre employees. We saw there was a lot of parallel between what they were seeking to cover in that application and what we are seeking to cover by removing, in our rules, what appears to be an exclusion that has kept us out of, if you like, call centre areas that we cover, in particular with Optus.

PN130

That did not get anywhere. There was not any common ground. It would be fair to say there was probably no positive outcome to that meeting. I do not want to overstate it or understate it. Arising from that meeting, once again without prejudice to our union's application, or the CEPU's objection in this matter or the other matter for that matter, their application and our objection in the other matter, we have written to the Secretary of the ACTU, Greg Combet seeking - I am sorry, I do not have a copy of that letter here today but in effect we are seeking for the ACTU to intervene and have discussions to see whether - - -

PN131

THE SENIOR DEPUTY PRESIDENT: To intervene in these proceedings do you mean, or to mediate between you and the CEPU?

PN132

MR NUCIFORA: Between ourselves and the CEPU, just between ourselves and the CEPU. They have exclusive coverage under their rules - office employees at the moment. We have an exclusion in our rules that went back to that. Whatever we argue elsewhere about whether that is still relevant we are seeking to remove that rule. Clearly we have an interest. We have people who are interested in being members of ours. We have people that we represent - seek to represent, at least as agent, in South Australia. So it is an area of priority for us. We would say that we have been involved in a number of these, what were 204, now schedule 1B applications, where a lot of money and resources and time has been spent by all unions.

PN133

While we do not concede our ultimate goal, we do believe that in the greater majority of this application, not the least - this one here before you and the other one - there would be common ground. We are really talking about traditional areas of coverage that we had of call centre employees and areas that we may or may not have now, both sides. Now, in saying that, I think when I raised this before Senior Deputy President Duncan in D2003/7, the CEPU application, I wasn't seeking to have the matters joined but I did want to raise what we thought to be some obvious parallels.

PN134

THE SENIOR DEPUTY PRESIDENT: Sorry, did you say you were seeking or were not seeking?

PN135

MR NUCIFORA: We were not seeking to have them formally joined and I think there was opposition at the time by, I think, Mr Banfield on behalf of the CEPU, we are not seeking to do that.

PN136

THE SENIOR DEPUTY PRESIDENT: Would not it be better if they were both heard by the same person?

PN137

MR NUCIFORA: That was raised by his Honour and we would be opposed to that happening, your Honour, if the Commission saw fit. Once again, we are not making a formal application for joinder. There is a lot of - we say there are a lot of common areas - although they are separate applications by separation unions, of course, we are talking about the, if you like, related industry - well, occupations, call centre employees across the industry. Now, I raised it and I do not want to, once again, overstate that. We would not be opposed if this was heard either before - both matters were heard either before yourself or before Senior Deputy President Duncan but in the context of discussions we are having or seeking to have before the ACTU, we do not want to hide from the fact that we see there is commonality between the two issues.

PN138

That is where we are at with the CEPU. We believe there ought to be further discussions, if possible, with the CEPU but we do not want it to drag on forever and a day. In fact, we would be seeking to propose some time for programming but before I take you to that, your Honour, if I could just tender a copy of correspondence to Optus - Minter Ellison, if you like. Mr Bruce Heddle is here today in relation to - communications have occurred since the last time it was heard before you.

EXHIBIT #ASU4 LETTER TO MR BRUCE HEDDLE DATED 18/02/2004

PN139

MR NUCIFORA: This correspondence, once again, ASU4, is similar to the ASU1, 2 and 3. It is to Mr Bruce Heddle who is acting with Minter Ellison for the SingTel Optus Group. We proposed a meeting with them. They have responded in correspondence, at least on 27 February - I have got copies of that here and I am happy to table that if my friend wants that tendered.

PN140

THE SENIOR DEPUTY PRESIDENT: What is that, exchange of correspondence?

PN141

MR NUCIFORA: It is exchange of correspondence. It is not the only correspondence they have sent to us but it is the one responded to letter of 18 February.

PN142

THE SENIOR DEPUTY PRESIDENT: Mr Heddle, do you have any objection to Mr Nucifora tendering the correspondence exchanged between your client and him?

PN143

MR HEDDLE: Subject to having an opportunity to review the letters that have been tendered after the videoing conference - I do not have the benefit of being physically present in Melbourne - I do not have any objection.

PN144

MR NUCIFORA: Actually, maybe if I don't tender it. Suffice to say Mr Heddle has sought to respond to our letter of ASU4 dated 18 February and there was another letter seeking to try and at least have a teleconference. In that exchange of correspondence, Mr Heddle was seeking to clarify who they could have at the meeting. We had no problem with that. That has been sorted out. We have talked about having a teleconference if we can't meet in the same city, given that officials, including myself, involved in this are Melbourne based and they are Sydney based.

PN145

MR SHAW: I think you would have to meet in the same city. It would be difficult to meet in different cities.

PN146

MR NUCIFORA: We would have to meet, yes, physically meet in the same city but otherwise - yes, that is right, we would have to meet in the same city. I think, at least by teleconference we might seek to establish whether there is any common ground in terms of their objection. While that is important, we actually do not rate, with all due respect to Optus SingTel and to Mr Heddle, we do rate that objection as highly as the CEPU. The CEPU is the one where we are talking about competing industrial relations and it goes to our areas of coverage. Having said that, we don't, in any way, underestimate the objection lodged by the employer, at least the employer that is directly affected by our application.

PN147

Your Honour, in terms of timetabling, we believe that we can establish whether there is any common ground between all the objectors and possibly settle with some of them, within, we would say, a period of a month, a period of 4 weeks. So we are really talking about it taking us into April. We would say that there ought be a report back hearing, if possible, with a view to directions for programming. We would consider it appropriate to be around mid to late April. We don't have a specific date in mind, but subject to what my friends might say and looking at the week commencing 19 April. So at any time then it is convenient for yourself, your Honour, to report back, that should allow more than enough time for the parties to meet, to see whether there is any possible settlement and then for direction for programming for determination as required.

PN148

We do have, as I've indicted before, people who have been prepared to be members of ours that we are acting for, at least in South Australia, so we do see it as being important that we do meet with all the objectors and that we do then set down a time for programming for determination of all outstanding objections. If your Honour pleases.

PN149

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Nucifora. Perhaps, Mr Blandthorn, what does the SDA have to say?

PN150

MR BLANDTHORN: Your Honour, as Mr Nucifora said, the two organisations have not yet had an opportunity to meet for various reasons. We are quite happy to meet with the ASU and we would be hopeful that such a meeting would produce a settlement.

PN151

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Shaw?

PN152

MR SHAW: There's not much I can usefully add. I think the only issue that came up in Mr Nucifora's address to you, related to the possibility of a joint hearing of the other CEPU application. I don't act in that one so I'm not in a position to express a view one way or another on that. I know you are not really putting it to me that I should but I just give you that indication. In terms of the progress of the matter into the future, well, I think that is in Mr Nucifora's hands and yours.

PN153

THE SENIOR DEPUTY PRESIDENT: Okay. Mr Heddle?

PN154

MR HEDDLE: Thank you, your Honour. I think, in terms of the correspondence that has been tendered and the outline of where the matter is at, in terms of the ongoing discussions between the ASU and the other parties, there is nothing that I wish to add to that. As far as, I suppose, the potential relationship between these proceedings and the proceedings which are apparently before Senior Deputy President Duncan, I wasn't aware of that issue until it was mentioned this morning. If some consideration is to be given at some point in time as to either joinder or perhaps the matters being dealt with separately by the same member of the Commission, we would like the opportunity to perhaps turn our minds to that issue if it is something which is seriously raised at some point and I think - - -

PN155

THE SENIOR DEPUTY PRESIDENT: Is Optus an objector in the CEPU application?

PN156

MR HEDDLE: No, your Honour.

PN157

THE SENIOR DEPUTY PRESIDENT: All right.

PN158

MR HEDDLE: The only other comment I make, as far as the timetable is concerned, I've got some difficulties with the week that has been suggested but perhaps either some time in the week before that or the week after that would be more convenient.

PN159

THE SENIOR DEPUTY PRESIDENT: Yes. All right. Well, I don't have any time before the week of 3 May actually and I can list it in the afternoon of 3 May. Sorry, I can list it - 9 o'clock would probably be better, in the morning of 3 May.

PN160

MR HEDDLE: 9 o'clock, your Honour?

PN161

THE SENIOR DEPUTY PRESIDENT: Yes. On 3 May. That will be for report back in to the extent necessary, programming for the hearing. In the interim, if there is any further developments in relation - is the CEPU application listed, Mr Nucifora, sometime before then? Do you know?

PN162

MR NUCIFORA: It is further advanced. It is an earlier application. It is listed for hearing - sorry, I don't have that here. I'm sure it is, but it was in that time frame and it is listed for read at later - quite an advanced stage - - -

PN163

THE SENIOR DEPUTY PRESIDENT: Do you know who the objectors are in that matter, apart from yourselves?

PN164

MR NUCIFORA: The NUW, the LHMU - there were a few objectors, your Honour. I could inform your associate.

PN165

THE SENIOR DEPUTY PRESIDENT: None of the ones that are objectors in this matter, other than the CEPU?

PN166

MR NUCIFORA: Sorry, the CPSU are another objector in that matter, of course. I'm sure there are a few in most, but not all have settled. So I might be able to inform your associate about that after this hearing, if your Honour pleases.

PN167

THE SENIOR DEPUTY PRESIDENT: Okay. All right.

PN168

MR SHAW: Your Honour, perhaps if - I think this is a sit-down hearing, isn't it, rather than a stand up? I'm not sure.

PN169

THE SENIOR DEPUTY PRESIDENT: We are on the record but in any event.

PN170

MR SHAW: Look, it would probably be useful, if it is Mr Nucifora's intention to make an application to join the matters, that if that application were to be made at the next report back, that we be given some notice of that intention.

PN171

THE SENIOR DEPUTY PRESIDENT: I think all parties would have to be - parties in both matters would have to be notified who was in the application.

PN172

MR SHAW: Yes. I just don't want to sort of come along at 9 o'clock on 3 May and be faced with that application.

PN173

THE SENIOR DEPUTY PRESIDENT: Defend or argue. Yes.

PN174

MR SHAW: Look, I will also have to make some inquiries from my end because you know, there may well - who knows - be some sensible way of programming the two matters but I'm just not in a position to express a view.

PN175

THE SENIOR DEPUTY PRESIDENT: All right. Okay. Well, perhaps that would be worthwhile keeping me in mind, Mr Nucifora, if there is going to be an application to join them either before me or before Senior Deputy President Duncan, that all the parties be notified of that application, to give them an opportunity to prepare for it. I will adjourn this matter to 9 am on 3 May.

ADJOURNED UNTIL MONDAY, 3 MAY 2004 [11.50am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #ASU1 LETTER TO MR BLANDTHORN DATED 18/02/2004 PN120
EXHIBIT #ASU2 LETTER TO ADRIAN O'CONNELL DATED 18/02/2004 PN123
EXHIBIT #ASU3 LETTER TO MR PETER TIGAE DATED 18/02/2004 PN128
EXHIBIT #ASU4 LETTER TO MR BRUCE HEDDLE DATED 18/02/2004 PN139