AG2004/2732, Transcript of Proceedings [2004] AIRCTrans 1706 (5 May 2004)

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TRANSCRIPT OF PROCEEDINGS


O/N 6872

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT LACY

AG2004/2732

CONCILIATION IN RESPECT OF
AGREEMENTS

Application under section 170NA of the Act
by Agility Services Pty Ltd - Agility
Management Pty Ltd t/as Agility re negotiation
of a proposed agreement

MELBOURNE

12.35 PM, MONDAY, 26 APRIL 2004

PN1

THE SENIOR DEPUTY PRESIDENT: Good afternoon. No change in appearances - no - oh, yes, Mr Rizzo.

PN2

MR M. RIZZO: Yes, your Honour, I think on the last occasion Mr Georgiou was representing my organisation but I am here in person this time.

PN3

THE SENIOR DEPUTY PRESIDENT: Yes, thank you, Mr Rizzo.

PN4

MR E. DE PRINSE: Yes, your Honour, with - - -

PN5

MR HAYES: Sorry, I just need to clarify, Mr Borenstein is not here yet. I am not sure if he represented me.

PN6

THE SENIOR DEPUTY PRESIDENT: Yes, thanks, Mr Hayes. Yes?

PN7

MR DE PRINSE: I appear for Agility Management.

PN8

THE SENIOR DEPUTY PRESIDENT: Yes, thank you, Mr De Prinse. What is the situation?

PN9

MR M. GEORGIOU: We kicked a few goals this morning, your Honour.

PN10

THE SENIOR DEPUTY PRESIDENT: Yes.

PN11

MR GEORGIOU: More than Footscray did yesterday. A lot of behinds yesterday.

PN12

THE SENIOR DEPUTY PRESIDENT: You wouldn't have to kick many to kick more than Footscray, would you, Mr Georgiou?

PN13

MR GEORGIOU: Now, now, your Honour. The parties, as you recommended, they should meet, met this morning around the corner. We worked off the agenda of the company that was presented to the Commission when we were in conference and the negotiations didn't result in violent agreement on the issues but the negotiations continued in good faith. Some progress was made on a couple of the issues, others, the company is awaiting some costings, for example, on the superannuation claim. The company is seeking information from the trust - sorry, the managers of the superannuation fund. On others, they are seeking further internal information as to who the clause might apply to.

PN14

The unions modified another part of their claim on superannuation and the company is also going - there were two claims on superannuation and they are going to - - one of the other issues was the issue of the parent awards and the relationship between the agreement and the previous EBAs. There is a difficulty with that in that the company undertook to review all of the awards and enterprise agreements and policies, etcetera, and the document that they have presented to the unions doesn't reflect the position that was agreed, but we will do further work on that so I wouldn't be too upset.

PN15

The issue of employment agreements/contracts, we have proposed some wording that the company is going to look at so I don't think - subject to anyone taking an in-principle stance on anything, I reckon we are getting closer. Introduction of change, can I say we are in a little bit of strife on that because the unions have proposed a very moderate change to the current clause and the company has said that it is not prepared to budge on its position and they refuse to negotiate on that clause, which was a bit disappointing, from the unions.

PN16

The long service leave, whilst everything is subject to final agreement I don't think that we are going to be here asking for arbitration on that one. The no extra claims, the unions were prepared to concede the current clause. The company is still - Mr Edwards has drafted a clause that he thinks is pretty good and he wants that in it just so that it will be known as the Mr Edwards clause. But I don't think that we are going to die over that. Parental leave, we are poles apart. The company is refusing to meet the Victorian industry standard on maternity leave and paternity leave.

PN17

They were given a free kick last time, your Honour, where they were stuck at 12 when the rest of the industry moved to 14, so we gave them a free kick last time, for maternity leave. And the - whilst nothing has been agreed with the other companies - but we have made some progress but the company has refused steadfast to negotiate on that. The use of contractors, the unions believe they had an agreement with the company and the company has reneged. But we did have some spirited debate on that and we are looking at one clause only that is between us - sorry, one paragraph, not one clause.

PN18

On the hours of work, it is fair to say that, despite intense negotiations, the parties are not closer to reaching agreement, however, some of that is depended on the company articulating to the unions their costings and the issues that they want considered by the unions. They hadn't put a formal proposal to the unions so they are going to work on that. And the ASU and ourselves proposed a variation to the claim that the company is going to consider and on wages, they insulted us by making a mediocre offer. So, yes, we have - we went through - we didn't finish until just before 12.

PN19

The company, I should say, refused to schedule another meeting. We suggested that we have a meeting early next week and that is not for any other reason than that our diaries are quite full with negotiations with the other companies that are before Commissioner Mansfield and that is why we scheduled today which is actually a holiday for some unions. We did offer them a meeting early next week but they have declined to schedule in a meeting. That, I think, is a fair summary from the unions and I hope the company doesn't diverge too far away from that.

PN20

We are also going to identify some of the other issues that aren't agreed but aren't going to be difficult in the negotiations. There are a couple of other bits and pieces. If the Commission pleases.

PN21

THE COMMISSIONER: Thank you, Mr Georgiou.

PN22

MR HAYES: Your Honour, I agree with what Mr Georgiou has just put. There was a couple of issues that is not included in this document, just for the record, that I thought of before. One was the issue of apprentices, but I think we have got an agreement on that anyway. So the issue of income protection, we had some outstanding issues - well, we did. I stand to be corrected if we can just prove that that has been settled on that issue. I did ask the company at the last meeting, a couple of weeks ago, for some costings on a trial roster that has been in place since last August and I still haven't had a response to that from this company and that is because the issue of cost has been raised in the context of a 36 hour week at the moment, so I just need to put that on the record as well. If the Commission pleases.

PN23

THE COMMISSIONER: Yes, thank you, Mr Hayes.

PN24

MR RIZZO: Your Honour, I support the submissions made by Mr Georgiou.

PN25

THE COMMISSIONER: Thank you, Mr Rizzo. Yes, Mr De Prinse?

PN26

MR DE PRINSE: Thank you, your Honour. I hope I don't digress too much from Mr Georgiou's submission and if I may just take the time to go through the document, your Honour. The superannuation is much as Mr Georgiou said and the company are looking at a number of alternatives. We believe that superannuation is probably best addressed outside of the EBA, and as such, we are taking advice on the trust deed and giving some consideration to alternatives that may make the superannuation claim a little more cost effective.

PN27

At the present time, your Honour, the claim as it is articulated, is very much cost prohibitive and would use up all of the funds that were available for the settlement of the EBA. But, as I said, we are looking at other options and having some reasonable discussions with Mr Georgiou on that. In terms of the second superannuation claim, the union has put a proposal to the company today in terms of a step, or a staged introduction, of the entitlements for the purpose of superannuation and we have given a commitment that we will go away and cost that and we will get back to the unions - - -

PN28

THE COMMISSIONER: Mr De Prinse, for some reasons that I don't understand, my copy of the exhibit is not on the file. Do you have a spare copy of that? Well, look, anyway, you proceed and I will follow.

PN29

MR DE PRINSE: I have only got notes on it.

PN30

MR GEORGIOU: There are only good notes on this one, so - - -

PN31

THE SENIOR DEPUTY PRESIDENT: Thanks very much. What is this note here, Footscray 10? They have never kicked 10 goals in a season, have they?

PN32

MR GEORGIOU: Who do you follow, your Honour? We will have a little wager later on.

PN33

THE SENIOR DEPUTY PRESIDENT: Yes.

PN34

MR DE PRINSE: Thank you, your Honour. As I said before, the point 2 on the document, the company is going away and looking at the proposal that was put to them today and we will do some costings on that. The third point, your Honour, in terms of a simplified EBA, although it is fair to say that we have made considerable progress on this particular claim, the unions have enjoyed, actually, the significant and long paperchase that they have had me on and I am sure it has been the subject of great enjoyment to them.

PN35

But that paperchase has come to an end and it is the company's submission that we believe that the simplified EBA, as it has been submitted, and the two parent awards that are contained in the EBA, cover all of the issues that have been raised by the unions. I will say that there may be one or two others that we are quite happy to look at but in terms of any suggestion that there are a number of outstanding, or a huge amount of outstanding issues that aren't covered by the EBA, then I would suggest that that is nothing more than a red herring and a smoke screen. I think the paper - - -

PN36

THE SENIOR DEPUTY PRESIDENT: But I understood Mr Georgiou to be saying that the unions were going to present some additional material. They say that the material you have provided doesn't cover all of the matters and they are going to produce some more. But, anyway - - -

PN37

MR GEORGIOU: No, I didn't volunteer that.

PN38

MR DE PRINSE: I would - - -

PN39

THE SENIOR DEPUTY PRESIDENT: Sorry, no, no, all right.

PN40

MR GEORGIOU: No, I said that they have got some more work to do.

PN41

MR DE PRINSE: I would be very - - -

PN42

THE SENIOR DEPUTY PRESIDENT: Well, I - yes, go on, anyway?

PN43

MR DE PRINSE: I would be very grateful - - -

PN44

THE SENIOR DEPUTY PRESIDENT: Go on, sorry.

PN45

MR DE PRINSE: I would be very grateful, your Honour, if the Commission were able to ask the unions to just present in a succinct manner the outstanding issues in which we can address rather than having to apply ourselves to ploughing through the five EBAs and two awards and various documents that I have been sent.

PN46

THE SENIOR DEPUTY PRESIDENT: Well, I don't think it should be the subject of a guessing game. I think if there is something there that should be there - that the union say should be there, they should indicate what it is.

PN47

MR GEORGIOU: Do you want me to respond, your Honour?

PN48

THE SENIOR DEPUTY PRESIDENT: No, no, I will come back to you.

PN49

MR DE PRINSE: Thank you, your Honour, in terms of the fourth point, the contracts of employment, it is fair to say that we did have some reasonable discussion on this and that although we are apart the company is prepared to go away this afternoon and look at the possible inclusion of some of the union's words. The introduction of change, there has been no movement on this clause by either party, your Honour, since basically the beginning of these discussions. And I would suggest that the introduction of change will struggle to progress without the assistance of the Commission.

PN50

THE COMMISSIONER: Mr Georgiou's position - or the union's position, was that they are happy - or they are content with the existing one; is that right.

PN51

MR DE PRINSE: That is correct, your Honour.

PN52

THE SENIOR DEPUTY PRESIDENT: The company is not happy with that or they don't want that one?

PN53

MR DE PRINSE: The company is not happy with that. The basic contention between the parties, your Honour, is the company believes that it needs to consult with its workforce and consult with the unions with regard to the introduction of change, whereas, the unions require that the company reaches agreement on all matters with regards to the introduction of change. In terms of the long service leave, I agree with Mr Georgiou. I can't see us bleeding to death in the trenches over that one. The no extra claims, again, the company has got a claim - sorry, a clause in there that they believe is appropriate and are fairly consistent and standard no extra claims provisions.

PN54

The unions have conceded that they would wear the existing no extra claims clause and, your Honour, we have given an undertaking that we will go away and take advice on that particular clause. In terms of parental leave, it is true to say that there has been no movement on the part of the company with regard to parental leave and that is that the existing arrangements of 12 weeks and one week, in the company's submission, is above the community standard, if not, within the industry standard. But our position on that is that within AGL, 12 weeks and one week is the standard position and unfortunately we are not in a position where we can move on that.

PN55

The use of contractors, your Honour, is that the clause is basically agreed except for, probably, the last four words in clause 25(5). The unions believe that they have an arrangement and the company believes that the words are not unreasonable to be included. They exist in the current enterprise agreement and the parties are apart just on those couple of words in relation to that clause. I would suggest, your Honour, that if we do not reach any agreement at the next discussion on the use of contractors, then, again, it is one of those clauses that will require the assistance of the Commission.

PN56

And the final one in terms of hours of work, which I include the wage increases because I believe that they are linked, the parties have had some discussions about potential trade-offs. The company's position on that is that any movement with regards to the hours of work will be a cost neutral exercise and as such are looking at costing some alternate proposals in terms of the introduction of the hours of work. However, at this point in time, your Honour, we have not been able to cost anything that in any way would off-set that 36 hours, so the position is, from the company's point of view, that we have rejected the 36 hours. However, in saying that, we will continue to look at a number of alternatives and cost options with regards to that. Thank you, your Honour.

PN57

THE SENIOR DEPUTY PRESIDENT: Yes, thanks, Mr De Prinse. Yes, Mr Georgiou, did you want to respond to what I raised before? Sorry, Mr De Prinse, Mr Georgiou said that the company is not prepared to fix or schedule another meeting. Why is that?

PN58

MR DE PRINSE: Your Honour, there is a reason for that. At the end of the meeting today the unions proposed to meet with the companies next week. It is the company's position, your Honour, that with the current bans in place, and having come off a 48 hour stoppage, a meeting next week is totally impractical. We would require a meeting tomorrow or Wednesday. We are available all week to meet and we believe that in scheduling the meeting next week it is too big a gap giving the bans that are currently in place and the industrial action that has taken place.

PN59

Given the gravity of this particular situation and the number of people involved; the small businesses that have been affected, we believe that anything less than a direction from the Commission for the parties to meet, at least, tomorrow, would be unsatisfactory.

PN60

MR GEORGIOU: Just on that last point, your Honour, we discussed this - I mean, I don't want to disclose what we discussed in conference, but that is why we met today because the unions had no other days available for this week and - - -

PN61

THE SENIOR DEPUTY PRESIDENT: And no other days available for last week.

PN62

MR GEORGIOU: No, for this week - - -

PN63

THE SENIOR DEPUTY PRESIDENT: You couldn't meet Thursday or Friday last week.

PN64

MR GEORGIOU: No, I went through - - -

PN65

THE SENIOR DEPUTY PRESIDENT: No, I wanted you to meet Thursday or Friday, at the end of next week - last week.

PN66

MR GEORGIOU: And that is why you directed us to meet today because the rest of this week - I am at Loy Yang - - -

PN67

THE SENIOR DEPUTY PRESIDENT: Sorry, I thought it was Thursday and Friday last week, you were not available.

PN68

MR GEORGIOU: No, we weren't available then either and we weren't available any other day except today and I told you that I had a day off because my organisation gave us Anzac Day and you said, bad luck, you can meet today.

PN69

THE SENIOR DEPUTY PRESIDENT: I don't know that I said, bad luck.

PN70

MR GEORGIOU: Well, words to that effect, your Honour, words to that effect.

PN71

THE SENIOR DEPUTY PRESIDENT: I don't think I said, bad luck, Mr - - -

PN72

MR GEORGIOU: No, no, no, words to that effect. The earliest we can meet - and because we have the matter before Commissioner Mansfield, we feel that we need to advance those negotiations. I don't have any other time except Monday or Tuesday of next week.

PN73

THE SENIOR DEPUTY PRESIDENT: Well, when has Commissioner Mansfield directed that you meet - - -

PN74

MR GEORGIOU: Wednesday of next week.

PN75

THE SENIOR DEPUTY PRESIDENT: No, when has he directed you meet this week?

PN76

MR GEORGIOU: We are meeting with Powercorp on Wednesday. Origin in the morning and Powercorp in the afternoon. Thursday we have got TXU in the morning, SPI in the afternoon and I have got a commitment down at Geelong with Ford on Friday.

PN77

THE SENIOR DEPUTY PRESIDENT: And what is wrong with tomorrow?

PN78

MR GEORGIOU: I have got Loy Yang. The EBA negotiations start at Loy Yang tomorrow morning at 10 o'clock. I can meet the company down there because they have got an interest in that power station now.

PN79

THE SENIOR DEPUTY PRESIDENT: Well, what does the company say about that?

PN80

MR DE PRINSE: Well, despite Mr Georgiou's calendar, your Honour, it still doesn't take away the fact that the company is subject to significant bans.

PN81

THE SENIOR DEPUTY PRESIDENT: No, I understand that. What do you say about the proposition that you meet down Loy Yang tomorrow?

PN82

MR DE PRINSE: I am more than happy to meet with the unions at any place, given the circumstances, your Honour.

PN83

THE SENIOR DEPUTY PRESIDENT: Well, what about Loy Yang tomorrow?

PN84

MR DE PRINSE: Yes, that is appropriate, your Honour.

PN85

THE SENIOR DEPUTY PRESIDENT: All right.

PN86

MR DE PRINSE: In terms of meeting at Loy Yang, your Honour, we would also ask that we continue to have a report back, if that is - - -

PN87

THE SENIOR DEPUTY PRESIDENT: Yes. What I will do is that I will direct that the parties meet tomorrow at Loy Yang and that they report back to me by writing, by close of business, Wednesday 28 April by e-mail or electronic message - either fax or e-mail to my associate who will give you her e-mail number or fax number and that will be a report by correspondence.

PN88

MR GEORGIOU: Separate or - - -

PN89

THE SENIOR DEPUTY PRESIDENT: Well, is it possible for you to get together collectively to do a report, or can you do it as a result of the meeting, at the meeting?

PN90

MR GEORGIOU: We will have a punt at doing it collectively, but if we can't, you will get two separate ones.

PN91

THE SENIOR DEPUTY PRESIDENT: Very well, yes, all right. Subject to what comes out of that meeting and the schedule then for the next meeting I will make a determination about whether or not the matter should be listed before the next scheduled meeting. All right.

ADJOURNED INDEFINITELY [12.58pm]