C2003/6067, Transcript of Proceedings [2004] AIRCTrans 1282 (5 April 2004)

AUSCRIPT PTY LTD
ABN 76 082 664 220

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

TRANSCRIPT OF PROCEEDINGS

O/N 6540
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT ACTON

C2003/6067
C2003/6062

APPLICATION FOR AN ORDER TO STOP
OR PREVENT INDUSTRIAL ACTION

Application under section 127(2) of the Act
by The Australian Workers' Union for an
order to stop or prevent industrial action

THE AUSTRALIAN WORKERS' UNION

and

BASF AUSTRALIA LIMITED

Application under section 170LW of the Act
for settlement of dispute re an alleged
breach of clauses 19 and 20 of the BASF
Australia Ltd (BAL) Chemical Workers
Certified Agreement 2001

MELBOURNE

2.02 PM, THURSDAY, 25 MARCH 2004

Continued from 16.12.03

PN1959

THE SENIOR DEPUTY PRESIDENT: Is there any change in appearances?

PN1960

MR R. MARASCO: I am from the Australian Industry Group and I now act on behalf of BASF.

PN1961

THE COMMISSIONER: Mr Borowick.

PN1962

MR BOROWICK: Thank you Senior Deputy President. On 13 January 2004, Mr Cesar Melhem, an assistant secretary of the Victorian branch, wrote to Mr Morrison, the Site Manager at BASF Australia Limited, Kororoit Creek Road, Altona:

PN1963

Dear Brad, re section 127 application for an order to stop or prevent industrial action and the section 170LW application for settlement of a dispute.

PN1964

And the letter states:

PN1965

On 16 December 2003, her Honour, Senior Deputy President Acton determined that clause 20(g) of the BASF...(reads)... management representative the manner...

PN1966

This should read, in which the decision may be implemented. It says:

PN1967

...in the decision may be implemented...

PN1968

But I think there is a word missing there:

PN1969

In the absence of an assurance that her Honour's decision can be fully and immediately put into ...(reads)... in the interests of both BASF and its employees

PN1970

And as I mentioned, it was signed:

PN1971

Yours truly, Cesar Melhem, Assistant Secretary

PN1972

Senior Deputy President, that letter was copied to yourself and to workplace representatives of the AWU, and I wish to tender that correspondence. If it assists, Senior Deputy President, I think we are up to exhibit B11.

PN1973

THE SENIOR DEPUTY PRESIDENT: B11.

EXHIBIT #B11 LETTER FROM AWU TO BASF DATED 30/01/2004

PN1974

MR MARASCO: Do you have a copy of that letter, Michael?

PN1975

MR BOROWICK: I don't have a copy with me but it is a letter to Mr Morrison; so it was sent to the company.

PN1976

THE SENIOR DEPUTY PRESIDENT: Have you got a copy of it, Mr Marasco?

PN1977

MR MARASCO: No, I don't, your Honour.

PN1978

THE SENIOR DEPUTY PRESIDENT: You can have my copy; I found the copy that was forwarded to me, on file.

PN1979

MR MARASCO: Thank you, your Honour.

PN1980

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Borowick.

PN1981

MR BOROWICK: Senior Deputy President, Mr Morrison hasn't replied to the correspondence and, significantly, neither has BASF implemented your decision in transcript. I understand it, on the basis of advice from the Australian Industry Group, that a decision in transcript is not binding upon the company, and they don't believe that they are in any way bound to comply with your Honour's decision, in transcript. So, for this reason, Senior Deputy President, we have been left with little choice other than to write to you on 5 March requesting that the matter be re-listed.

PN1982

Senior Deputy President, since you made your decision we have had discussions with BASF and we have been exploring ways by which we could reach agreement within the terms of the relevant certified agreement, but we haven't been able to reach agreement, notwithstanding the fact that we have had several meetings with the company. It is almost three months, your Honour, since you made your decision, and we believe adequate resources have been dedicated to trying to resolve this dispute with BASF, and ample - sufficient attempt has been given to try and to reach agreement with the company.

PN1983

The matter before you commenced on 28 October 2003. Before that date there were section 99 proceedings before Commissioner Redmond. It doesn't appear likely that we will reach agreement, and we say that, consistent with your decision, BASF should meet its obligations under the terms of the certified agreement. It appears, Senior Deputy President, that BASF are not going to act outside the terms of some instrument which - from the Commission, which forces their hand to reinstate the day workers. So, it is with regret that we have to press our application.

PN1984

The enterprise agreement expires in September of this year, and I don't know whether it is BASFs strategy just to prolong these proceedings until the nominal expiry date, but it is quite clear from where we stand that, absent of some instrument from the Commission, they will not comply with your decision made in transcript late last year.

PN1985

THE SENIOR DEPUTY PRESIDENT: So you want me to formalise a decision in an order?

PN1986

MR BOROWICK: Yes, we do. If the Commission pleases.

PN1987

THE SENIOR DEPUTY PRESIDENT: Mr Marasco.

PN1988

MR MARASCO: Thank you, your Honour. Just a couple of points I wanted to make. I am not quite sure of the nature of this proceeding. Mr Borowick, sort of, in his letter to you, dated 5 March, says that it wants the two matters re-listed, the 127 and the 170LW. In relation to the 127, we say well that matter can't really be re-listed because you declined on the last occasion to exercise your discretion to issue that order. So that the AWU wishes to press a section 127 application, a separate application will need to be made.

PN1989

Mr Borowick also said that he believed that the company was advised by the Australian Industry Group that your decision, which you made on transcript, is not binding on the company. That certainly hasn't been my advice to the company and I am instructed by Ms McPherson that that hasn't been the advice that she has received from anyone else from Australian Industry Group.

PN1990

THE SENIOR DEPUTY PRESIDENT: So is it being complied with?

PN1991

MR MARASCO: I am sorry, your Honour?

PN1992

THE SENIOR DEPUTY PRESIDENT: Has it been complied with?

PN1993

MR MARASCO: Discussions have been held between the parties in order to try to reach resolution of various matters; I have only come into this matter on a late stage, so I am not familiar with all the background. Your Honour would have received a copy of a letter from Dr Morrison, yesterday?

PN1994

THE SENIOR DEPUTY PRESIDENT: About an hour ago.

PN1995

MR MARASCO: Okay. In that letter which was also sent to Mr Borowick, we suggested that we attempt to have your Honour conciliate between the parties to try to reach agreement on the outstanding issues. Since your decision was made last year, I am instructed, there have been several meetings between the parties to try to reach some agreement as to the outstanding issues. One issue has been that there were those five workers, the company made two redundant, one accepted a voluntary redundancy package, and the other was made involuntarily redundant and has now been re-engaged by the company as a casual.

PN1996

So there are certain practical issues as to whether they will have to return the redundancy packages and be re-hired. And there was also without prejudice correspondence that Mr Borowick sent the company, as well, that we thought would be worthwhile discussing in private conference. That would conclude my preliminary submissions, unless you have any questions for me. If the Commission pleases.

PN1997

THE SENIOR DEPUTY PRESIDENT: Do you have objection to going into conference, Mr Borowick?

PN1998

MR BOROWICK: Senior Deputy President, I think the application to go into conference is consistent with my earlier submission that BASF wish to drag this out past the nominal expiry date. We have met with the company several times this year, there is an abundance of correspondence between the parties, which I am happy to share with the Commission, and you made your decision on 16 December. It has really been three months since that date that we have been in discussions with the company. We have really come here today with clean hands. We have tried our best to reach agreement with the company.

PN1999

We are not here a week or two after you made your decision, in transcript, we are here three months later. We have really given it our best shot, but we still don't have agreement. I believe the company is just stringing this out, Senior Deputy President, and more discussions, more conciliation proceedings just puts off the day of reckoning. We believe, with respect to the Senior Deputy President, the Commission should make an order or determination, and that doesn't, in itself, close the gate for further discussions with the company, which we are more than happy to do, conciliation proceedings.

PN2000

THE SENIOR DEPUTY PRESIDENT: Well I must say I thought I had already made a determination.

PN2001

MR BOROWICK: Yes.

PN2002

THE SENIOR DEPUTY PRESIDENT: The fact that it is in transcript is neither here nor there.

PN2003

MR BOROWICK: Well, the company don't deny, today, that they haven't complied with the determination in transcript. Your Honour decided:

PN2004

Given the conclusion I have reached on the section 170LW application I find it unnecessary to also issue an order under section 127

PN2005

If Mr Marasco can indicate, today, that the company is going to comply with your decision under section 170LW, well then there is no need for the union to press its section 127 application. But absent of that undertaking from BASF, well, then, I believe it is open to the union to press its 127 application. There hasn't been compliance and there is no indication that the company will comply. If the Commission pleases.

PN2006

THE SENIOR DEPUTY PRESIDENT: I will adjourn into conference.

SHORT ADJOURNMENT [2.15pm]

RESUMED [3.14pm]

PN2007

THE SENIOR DEPUTY PRESIDENT: We have had discussions in conference in respect of this matter and, as I understand it, agreement for settlement has been reached, subject to the union putting the position to its members and they will recommend the position. Mr Marasco, can you tell me what the position is?

PN2008

MR MARASCO: The position is this, your Honour. Point number one, the AWU and its members agree to operate the plant with three day work operators. Two, subject to the above, BASF agrees to maintain its existing employee levels, as set out in the current enterprise agreement, in brackets (agreed employee numbers). Point number three, without qualification the agreed employee numbers will be maintained up until 30 September 2005 and this will be reflected in the enterprise agreement that succeeds the current agreement.

PN2009

Four, the agreement employee numbers are based on a presumption that current product demand remains the same. The agreed employee numbers shall cease to be binding in circumstances where BASF loses significant market share and/or significantly alters its product mix. And that is the agreement that the parties have reached, your Honour. If the Commission pleases.

PN2010

THE SENIOR DEPUTY PRESIDENT: That position is acceptable to the company?

PN2011

MR MARASCO: Yes, it is, your Honour.

PN2012

THE SENIOR DEPUTY PRESIDENT: I will mark that agreement.

EXHIBIT #SP6 AGREEMENT

PN2013

THE SENIOR DEPUTY PRESIDENT: Mr Borowick, what is the union's position on it?

PN2014

MR BOROWICK: Senior Deputy President, the agreement that has been reached today, in the Commission, is a slight variation on what was proposed by the AWU to the company on Tuesday 23 March. The Australian Workers' Union undertakes to convene, as soon as is practical, a meeting of members employed by BASF and to recommend the adoption of the agreement reached in principle, today, between the parties. If the Commission pleases.

PN2015

THE SENIOR DEPUTY PRESIDENT: I will now adjourn.

ADJOURNED INDEFINITELY [3.16pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #B11 LETTER FROM AWU TO BASF DATED 30/01/2004 PN1974
EXHIBIT #SP6 AGREEMENT PN2013