BP2004/2755, Transcript of Proceedings [2004] AIRCTrans 1463 (19 April 2004)

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TRANSCRIPT OF PROCEEDINGS


O/N 10886

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER MANSFIELD

BP2004/2755
BP2004/2756
BP2004/2757

APPLICATION FOR TERMINATION
OF BARGAINING PERIOD

Applications under section 170MW of the Act
by TXU Group of Companies and Others for
orders to terminate or suspend bargaining
periods in BP2003/7169, 7233, 7375, 7374,
7232, 7188, 7166, 7373, 7372, 7228, 7230,
7180 and 7168

MELBOURNE

9.32 AM, WEDNESDAY, 7 APRIL 2004

Continued from 5.4.04

PN6787

THE COMMISSIONER: As I advised the parties at our most recent hearing, I intend to make a statement and a recommendation regarding the proceedings that we have undertaken over the last several days. I have copies of the statement for distribution so you don't necessarily have to take notes. The applications before the Commission seek that the bargaining periods established by three unions, ETU, ASU, APESMA, in relation to the negotiation of enterprise bargaining agreements with the power industry employers, TXU, SPI and Citipower/Powercor, be terminated as, under section 170MW(7) of the Workplace Relations Act, the employer parties believe there is no reasonable prospect of agreements being reached.

PN6788

In each of the three applications the employers have argued that the unions have adopted fixed positions on key elements of their claims. They also submit that as the claims would either be costly or seriously infringe on their management's ability to run the company they would not be prepared to concede them in the absence of offsets which would significantly reduce the impact of those concerns. Senior officers of the three companies have given sworn evidence of the developments in the negotiations which have been ongoing since October 2003. Overall their evidence was to the effect that either slow progress was being made or, alternatively, the negotiations were at a stalemate.

PN6789

The three unions have imposed work bans since early February 2004 and this industrial action is having a limited but not insignificant impact on the operations of the companies. The unions have given assurances to the Victorian Government that public health and safety will not be put at risk as a consequence of the industrial action. The employers have recently implemented a "no work as directed, no pay" approach to employees engaging in industrial action.

PN6790

Sworn evidence from the unions was given by a range of officers and members involved in the negotiations with the companies. There were significant differences between the evidence of the employer witnesses and those from the unions. In broad terms the unions gave evidence to the effect that they were confident that agreements were achievable with each of the three companies. In areas where the employers believed that the unions had adopted fixed positions the unions' witnesses gave evidence that they had been prepared to consider alternative positions in the process of attempting to reach agreement during the negotiations to date and any which may occur in the future. For example, on the 36 hour week issue rather than the only position of the unions being one of "no trade offs" evidence was given that they recognised the need for meaningful concessions if negotiations on this issue were to be successful alongside of other important items such as increases in remuneration.

PN6791

In considering the evidence and reaching conclusions in regard to each of these three matters I would need time to properly examine and consider the submissions and evidence which has been provided to the Commission.

PN6792

I might point out here, just departing from the recommendation that Commissioner Lewin when he did his Yallourn Energy decision, I think, took somewhere in the order of two months to reach that decision.

PN6793

As all of the parties to these matters are aware the disputes are significant in terms of both the claims made and the impact of the industrial action which has either occurred or may be taken by the union or employer parties in the future. Taking account of the developments to date I propose to recommend that the parties re-engage in negotiations to endeavour to reach agreement on the EBAs. The negotiations should take place within the following framework:

PN6794

(1) Each company will meet separately with the unions.

PN6795

(2) Priority should be given to the key issues which were identified during the hearings to date. These included:

PN6796

. Introduction of change.

PN6797

. No compulsory redundancies.

PN6798

. Apprentice/trainee recruitment.

PN6799

. Use of contractors.

PN6800

. Wage increases and related matters.

PN6801

. 36 hour week.

PN6802

(3) An agreed brief, factual report on the outcome of each meeting to set out the current position should be provided to SDP Lacy at the Commission as soon as practicable following the meeting.

PN6803

(4) Either or both parties may seek the assistance of the Commission to engage in conciliation. If assistance is sought it will be provided promptly.

PN6804

I might point out there that I will keep myself at arm's length from the conciliation process unless specifically requested by both parties to be involved. SDP Lacy and Commissioners Tolley and Lewin will be available for conciliation if requested by either or both of the parties.

PN6805

(5) Regardless of the last item regarding conciliation, conferences convened by myself involving the unions and representatives of each company will be held in four weeks time to hear reports of developments. The first of these conferences will be arranged on Wednesday, 5 May, and depending on the outcome of those conferences I will, firstly:

PN6806

. Hear any additional submissions from the parties, if any, on the section 170MW applications or, secondly:

PN6807

. If both parties agree allow further time for negotiation or, thirdly:

PN6808

. Adjourn the matters and proceed immediately to issuing decisions from the section 170MW applications.

PN6809

Now, by saying "proceed immediately" I am not giving anybody an assurance that there will be a decision on that day or very, very shortly thereafter, but it will be done as soon as practicable following 5 May and work will be going on, on the decision, prior to that time.

PN6810

And the final part of the recommendation is that should any party believe that no progress is being made in the negotiations and that a serious stalemate has developed they are at liberty to advise the Commission and I would list at short notice the matter for report and, if necessary, a hearing. And if a stalemate occurs in any of the three companies with their negotiations with the unions on the face of it and that is established I will then proceed to determine the section 170MW application regarding that particular company.

PN6811

At this time I do not propose to issue any recommendation related to the industrial action which is or may be taken by either employees or employers with one exception. And this is not contained in the recommendation. I am aware, from public reports, that there is a refusal to connect power requirements to a substation at the Melbourne Cricket Ground which is holding up construction and which is interfering with the provision of services to the football public who are attending football games at the MCG. As a sign of good faith I am asking the unions, specifically, to lift that ban and allow that connection to take place.

PN6812

I must point out that is not part of the formal recommendation but I am putting it on the record and asking the unions to lift that particular ban.

PN6813

As the parties to these matters are aware, negotiations on new EBAs have been proceeding since October 2003. Whilst some progress has been made on less significant issues a number of serious claims have not yet been agreed with any of the unions or the companies. In the circumstances all of the parties would be wise to put aside any posturing and apply themselves most seriously to the task of reaching agreements to settle these complex and significant claims. And that completes the statement and recommendation.

PN6814

Effectively, I am going to take time to reach a decision on the 170MW applications. It could take several months. In the meantime the unions are continuing with their bans, the companies are being affected by that, the public is being affected by that and what I am proposing is that the companies and the unions get back into negotiations giving a four week window for that to occur, making it clear that if conciliation services from the Industrial Relations Commission are sought by either party those services will be made available. And implicit in that is that both parties will accept conciliation.

PN6815

Now, we all know that conciliation can merely assist to reach agreement. It can't force either of the parties to reach an agreement, it is simply a process of trying to assist people through a dispute which is occurring between them. So there should be no difficulties, in my view, with either of the parties accepting conciliation if it is seen to be desirable. Preferably, the parties should sit down together, given the evidence that has been put in the applications for the section 170MW orders and proceed with negotiations, taking account of the indications from both the company and the unions as to what they may have been prepared to do in those negotiations.

PN6816

So that is the recommendation to the parties: You re-engage in negotiations. You report regularly to SDP Lacy. I will stay at arm's length from that process unless specifically requested by both parties to become involved. And in four weeks time I will hear a report back from the companies and the unions with the three options of hearing additional evidence on the 170MW, of the parties both agreeing to continue in negotiations or, alternatively, getting an indication from one or other of the parties that they wish to move straight away to obtaining a decision as soon as practicable on the section 170MW applications that have been heard today.

PN6817

Now, what I propose to do is to allow the parties an amount of time to consider the recommendation and report back to the Commission on its acceptability. If one or other of the parties decline to accept the recommendation I will then proceed to make a decision on the section 170MW application and that will be done as soon as practicable. I was proposing that the parties report back to the Commission by 3 pm tomorrow on the acceptability or otherwise of the recommendation. Does that give anybody a problem? I think the sooner we get an indication of whether it is acceptable or not the better. Because if it is acceptable the parties have then got basically four weeks, but remember we have Easter in between, to try and make progress of a significant kind on the claims that have been made and hopefully resolve an agreement in terms of the enterprise bargaining. Are there any questions at this stage? Mr Parry?

PN6818

MR PARRY: We will get back to the Commission by tomorrow.

PN6819

THE COMMISSIONER: Thank you. I was hoping to have a brief moment with each of the employers and unions separately and then we will adjourn. So I would like to just talk to the unions privately for a couple of moments - it will only be a couple of minutes - and then I will talk to the employers privately and then we will adjourn.

NO FURTHER PROCEEDINGS RECORDED [9.45am]