C2004/2391, Transcript of Proceedings [2004] AIRCTrans 1204 (29 March 2004)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 2, 16 St George's Tce, PERTH WA 6000
Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS


O/N 322
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER THATCHER

C2004/2391

ENTERTAINMENT AND ARTS ALLIANCE MEDIA

and

AUSTRALIAN BROADCASTING CORPORATION

Application under section 170LW of the Act
for settlement of dispute re ABC's failure
to consult to clause 55

PERTH

9.14 AM, THURSDAY, 18 MARCH 2004

PN1

MR M. RYAN: I appear on behalf of the Media, Entertainment and Arts Alliance.

PN2

MR G. THOMSON: I appear on behalf the Community and Public Sector Union and I seek leave to intervene in this matter.

PN3

MR D. SMITH: I appear with MR L. CARUSO on behalf of the ABC.

PN4

THE COMMISSIONER: No objections to intervention?

PN5

MR RYAN: No.

PN6

MR SMITH: No.

PN7

THE COMMISSIONER: Leave to intervene is granted.

PN8

I have received the 170LW application which has been lodged by the MEAA and understand that it should be dealt with urgently. And I understand that I am being asked to exercise powers under clause 63.5 of the agreement. Just before I hear from you, I would just say that subject to what anyone wants to say this morning, I should indicate that I would be available to hear the matter in Sydney next Monday or Tuesday. So, what I am really wanting to do is just, today, sort out what are the issues and what is the information and what preparation needs to be made if this to proceed in that manner. Perhaps I could hear from you first, Mr Ryan.

PN9

MR RYAN: I think Tuesday would be preferable, Commissioner, because it is a little bit of an effort to gather in some documentation to bring forward.

PN10

THE COMMISSIONER: Right.

PN11

MR RYAN: And that would allow me, and I think also the ABC, Mr Thomson, Friday, Monday.

PN12

THE COMMISSIONER: Sorry. Yes. So, you are saying at this stage, preliminary, Mr Ryan, but possibly Tuesday? Mr Thomson?

PN13

MR RYAN: I think that is more appropriate than Monday, Commissioner.

PN14

THE COMMISSIONER: Sorry?

PN15

MR RYAN: I think it is more appropriate than Monday.

PN16

THE COMMISSIONER: Yes.

PN17

MR RYAN: Tuesday would be - - -

PN18

THE COMMISSIONER: Tuesday, yes. Mr Thomson, do you have any views on this?

PN19

MR THOMSON: I support Mr Ryan's view.

PN20

THE COMMISSIONER: No? Thank you. Mr Smith?

PN21

MR SMITH: Yes, the same. Tuesday is preferable for me as well.

PN22

THE COMMISSIONER: It seems me it would be helpful if we could work out exactly what the parties are seeking me to do. I must say I haven't read the transcript from the 127 proceedings, but I just looked at the end of it, and it seems that there might be a number of questions. And if we can hone those down, that might be in everybody's benefit, so we can expedite things on Tuesday. Has anyone got any words, because I have done a few works here, but I would rather hear from you, if you have already got some words or shall I just read out what I, sort of, gleaned from the transcript? One of them seems to be whether - - -

PN23

MR RYAN: They are your proceedings, Commissioner. I think we will listen to what you have got to say.

PN24

THE COMMISSIONER: Well, no, no, actually I am trying to - this is an LW matter so I want to be guided by the parties. But it seemed to me what the core issue may have been, whether or not clause 55 of the agreement requires the ABC to initiate discussions before implementation of the proposed national sports wrap. That is, whether the changes are likely to have a significant effect on employees. That seemed to be one of the things that I was picking up. And I wasn't sure - another one was, if so, whether or not the discussions that have taken place satisfies that requirement to initiate such discussions. And the other would be, I would like to hear, I suppose somewhere along the line, what recommendation is being sought by each of the parties from the Commission. They were my initial thoughts.

PN25

MR RYAN: I think, your Honour, in relation to the first issue, what you have said is correct, Commissioner. In relation to the third point as to whether - if we are successful in saying the matter before you is one that attracts clause 55 of the agreement, what should then flow, I think we would be guided by what the Vice President said. Do you have the transcript of that matter before you?

PN26

THE COMMISSIONER: Yes, I have received it but I wanted to say that I haven't read it word for word all the way through so - - -

PN27

MR RYAN: No. There is only one paragraph. Right towards the very end, Commissioner. Paragraph 298 on the last page.

PN28

THE COMMISSIONER: Yes, I have that.

PN29

MR RYAN: And if you can see about one third into that paragraph, on the fourth line, the end, starting with the word "In the".

PN30

THE COMMISSIONER: "I would note in passing". Is this the one?

PN31

MR RYAN: Yes. Sorry:

PN32

I would note in passing, it would seem that there is sufficient power conferred on the Commission by the agreement to require the ABC to reverse the implementation if it appears at the end of the day that clause 55.2.1 did apply to the proposal, if it appears on the evidence at the end of the day that there is no consultation in accordance with the clause.

PN33

So, what we would be seeking if we are successful in proving that the matter before you should have attracted the process envisaged by clause 55, that the ABC revert to the pre-national wrap format while those consultations take place and the information required to be provided pursuant to clause 55.4 of the agreement is given to the Alliance.

PN34

THE COMMISSIONER: Very well. Okay. Well, thanks, Mr Ryan. Mr Smith, what is your reaction to the words I said?

PN35

MR SMITH: Look, I think that as Mark has described it and as the Vice President has mentioned, this is a classic argument over the application of the agreement as to whether or not clause 55 applies.

PN36

THE COMMISSIONER: Yes.

PN37

MR SMITH: I think in his Honour's - he sent us a decision in transcript where he has outlined, I think, pretty much the scope of the argument in that sense. He goes on to say - and this is - if you have got that. That is also at clause 298. And I think the key elements there are:

PN38

To reverse this implementation if it appears at the end of the day that clause 55.2.1 did apply and if it appears on the evidence that there was not consultation.

PN39

What isn't said there is, well, what happens then after there has been consultation in accordance with clause 55 should that argument succeed. It has already been acknowledged, I think, by all of the parties pretty much that at the end of the day the ABC is still entitled to go ahead with its decision, subject to that consultation, if indeed that clause 55 does apply. And, therefore, the reversal of any implementation would not be a permanent reversal. It would be only subject to undertaking consultation. The ABC would argue that it is probably not an appropriate decision to take to reverse the decision.

PN40

But we would also be arguing that (a) clause 55 does not apply to this particular case and (b) in any case there has been consultation consistent with the spirit and intent and requirements of the agreement.

PN41

THE COMMISSIONER: Yes. Can I take it, Mr Smith, that you are not objecting to the Commission hearing this matter as a matter of jurisdiction in respect of 63.5 then? So, the hearing on Tuesday will focus on these matters that we have said, is whether or not 55 requires whether or not the discussions have satisfied?

PN42

MR SMITH: Yes, look, the ABCs position is that this matter should not have come to the Commission by way of a section 127 through industrial action. That, indeed, the provisions of the dispute settling provisions should have been followed. So, yes, we have no objection.

PN43

THE COMMISSIONER: Very well. Well, that seems to be a general concurrence. And perhaps I will type up these words and I will get my Associate to e-mail them to you, just so that we have common words on Tuesday. Obviously I don't think there is going to be time for the agreement of facts, but the information that I would need, amongst other things, I think, is, firstly, what changes are proposed or have been proposed by the introduction of the national sports wrap. So, what does it mean? Secondly, the extent to which those changes will affect employees covered by the agreement. And I suppose the third point is, what communication has taken place between the parties to date on the implementation of the changes?

PN44

If there was sufficient time, you know, one would say, well, can you give me some outline of information on that, say, by close of business on Monday. I don't know whether you would find that helpful. It probably would speed up things on proceedings on Tuesday if an outline which focuses on those three points or any other things that you might like to put in - I should put a 4. Any other matters which might be considered relevant to any of the parties.

PN45

MR SMITH: Commissioner, I mean, to an extent, yes, we could - from the ABCs perspective, in any event, we could provide an outline of those points 1, 2 and 3. There is another issue that arises from that, of course, as to whether or not Tuesday is sufficient time if both parties are obviously wanting to bring forward witnesses. We would be wanting probably to bring in two or three witnesses, I would say, at a minimum.

PN46

THE COMMISSIONER: To or three? What about yourself, Mr Ryan?

PN47

MR RYAN: Probably the same, Commissioner. But they would be fairly limited to what the evidence went to. It would be going to the extent of consultation, if any and also the impact on certain employees. So, it is not a wide ranging amount of evidence. It is fairly limited in its scope. But I do have a concern, like I said, that it may go over the one day.

PN48

THE COMMISSIONER: So, it may carry into Wednesday, you are saying?

PN49

MR RYAN: I certainly can't believe we would go more than two days, Commissioner.

PN50

THE COMMISSIONER: Yes.

PN51

MR RYAN: I know your circumstances, Commissioner. And it may go into the Wednesday. That is all.

PN52

THE COMMISSIONER: Well, I mean, this is an important matter for you both and I have something on Wednesday which I may be able to re-program or do by video. If we said Tuesday with a spill over to the Wednesday, would that give you sufficient time to give, say, the outline of points and, I don't know, witness statements by close of business Monday? You have only got today, rest of today, Friday and Monday.

PN53

MR RYAN: I will do the best I can with the witness statements, Commissioner. I haven't been previously involved in the matter until it came before the Vice President on Monday. So, I will need to get some advice from my organisers in the various States and back in the Federal Office.

PN54

THE COMMISSIONER: Well, I am in your hands. Well, obviously, I am trying to hear the matter so that - well, during this course of this 127 order. But at the same time, as I said, I don't wish to disadvantage the parties. So, Mr Ryan, I am really in your hands. You tell me what you could consider reasonable first, I think, Mr Ryan. What time do you need?

PN55

MR RYAN: Look, I think - I mean, subject to Mr Smith doesn't feel disadvantaged by not having a full witness statement, certainly an outline of what we seek to show and vice versa without having the normal full paragraph by paragraph.

PN56

THE COMMISSIONER: Yes. I think that is probably - okay, I am happy to accept that in the circumstances. So, basically I would have to have these points, the three points, plus an outline of who the witnesses are what they are going to say. But I would still want, whenever they are called on the Tuesday, to have a statement by then.

PN57

MR RYAN: I will get that organised, Commissioner.

PN58

THE COMMISSIONER: So, that is acceptable for you, Mr Ryan. What about you, Mr Smith?

PN59

MR SMITH: Look, again, it is the best endeavours to have our witness statements done in that time frame. Similarly, you know, without wishing to disadvantage Mark, I would be seeing an outline at least by the Tuesday. Sorry, by the Monday.

PN60

THE COMMISSIONER: Yes. I think if you could do some sort of outline and then we might have to - well, it just takes more time, obviously, if we haven't got statements. But in the circumstances, I am happy if the witnesses - if we are all agreeable, we can proceed without witness statements. We can just take oral evidence in the old way. But if you could do your best, I think, to exchange by the close of business on Monday to each other the outline of those three points plus the outline of what the witnesses are going to say. And then we will start what time? 10 o'clock on Tuesday? Is everybody agreeable?

PN61

MR RYAN: That is convenient, Commissioner.

PN62

MR THOMSON: The CPSU is probably only going to be calling one witness and I think - - -

PN63

THE COMMISSIONER: I see. I am sorry, Mr Thomson.

PN64

MR THOMSON: - - - is likely to be relying on major submissions of the Media Alliance.

PN65

THE COMMISSIONER: Yes. I am sorry, Mr Thomson. I didn't mean to omit reference to you. Very well. So, I think that is enough then. I will ask Kay to e-mail these (a), (b) and (c) which we talked about previously and that will be sent to you in the next 20 minutes or so. You will provide me with dot points or an outline of submissions in respect of those three other matters plus what the witnesses might be saying by close of business on Monday. And in the e-mail we will say where that should go to. And God willing, we will all be together in Sydney on 10 o'clock on next Tuesday morning with - and I will re-allocate my Wednesday to allow a likely spill over if that is going to be so.

PN66

MR RYAN: I appreciate it, Commissioner.

PN67

THE COMMISSIONER: Okay. Anything further by anybody? Otherwise we will adjourn. Nothing further?

PN68

MR SMITH: No, I think that is all from us, Commissioner.

PN69

MR THOMSON: Thanks, Commissioner.

PN70

THE COMMISSIONER: Thank you very much. We will adjourn. This matter is adjourned.

ADJOURNED UNTIL TUESDAY 22 MARCH 2004 [9.29am]