C2004/2079, Transcript of Proceedings [2004] AIRCTrans 1893 (21 May 2004)

AUSCRIPT PTY LTD
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TRANSCRIPT OF PROCEEDINGS


O/N 10919
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER BLAIR

C2004/2019

CONSTRUCTION, FORESTRY, MINING
AND ENERGY UNION

and

PELE CURTAINS

Notification pursuant to section 99 of the Act
of a dispute re alleged refusal to discuss
claims with regards to a bargaining period

MELBOURNE

1.30 PM, TUESDAY, 11 MAY 2004

Continued from 18.3.04

PN42

MR R. LOWE: I appear for the CFMEU, appearing with me is MR J. COOKE, an organiser of the union, Commissioner, and we have with us today, Commissioner, two employees, MS D. SCHUMACHER and T. .....

PN43

MR G. PELS: I appear for the Australian Industry Group on behalf of our member, Pele Curtains, a change of appearance from last time before you, and appearing on behalf of the company is MS R. HIGGS.

PN44

THE COMMISSIONER: Thanks, Mr Pels. Yes, Mr Lowe.

PN45

MR LOWE: Thank you, Commissioner. This matter was last before you on Thursday, 18 March 2004, and we was dealing with a matter of the company's refusal to enter into any form of discussions with the union regarding the making of an enterprise agreement. And the union wrote to you seeking to have the matter re-listed and we are appreciative of the fact that you have re-listed the matter promptly and taking into account the needs of the employees in having a time that suited them. Commissioner, I would at this time seek the leave of the Commission to add to the matters that were before the Commission last time, and they are matters relating to the right of entry, and they weren't originally before you at that initial hearing and weren't part of the original dispute notification.

PN46

Commissioner, when the matter was before you on 18 March the company indicated that they didn't intend to negotiate an agreement with the union. Mr Halls was on behalf of the company stated that all employees were quite content with the existing arrangements that they have operating under the terms of the Furnishing Industry Award, that the company exceeds the minimum terms and conditions in respect of monetary entitlements and sees no need to negotiate an agreement on that basis. Commissioner, just in respect of those issues, and information that has come to my attention as just as late as early this afternoon, is that we would consider that the employer doesn't pay any greater than what the award does, in fact probably pays a few cents a week less than the level 3 rate in the award, and we are of the view that there has been some underpayments which we will not be pursuing today but taking up with the company at a later date.

PN47

So we have got some concerns about the statement that was made by Mr Halls on behalf of the company on the 18th. The company believed - they said, Commissioner, that there was no overwhelming support for an EBA to be negotiated with the union, and that is something that we would contest, Commissioner. Later in the proceedings however, Commissioner, Mr Halls has indicated that the company would be prepared to meet with the union, and representatives from the employees, to hear their concerns out and possibly see if there was anything that could be done anywhere else to go whatsoever as far as that was concerned but they reserved their rights to maintain their position, which they had advised that they didn't want to negotiate an agreement.

PN48

The union provided the company around about that stage with a copy of a draft enterprise agreement which it was to negotiate with the company after they had had time to consider the contents of that agreement. You then stated, Commissioner, and in respect of what was on transcript, and if I could quote from paragraph 31. The Commissioner said that:

PN49

If I pick up on your suggestion, Mr Halls, what I would do is recommend that the parties at least meet, and it may be of assistance if you are there as well to ...(reads)... then you are right, the union does have its rights under the Act as how it may wish to pursue, and the employer I am sure understands what those rights are.

PN50

I end the quote there, Commissioner. So taking on board what you said, and we indicated clearly we understood what you were saying to us, what the rights of the employer was and what the rights of the union was in these matters, and so after that, Commissioner, the union made a number of attempts to arrange a meeting with the company and unfortunately they came to nothing. The reason for that was, Commissioner, was that the company was willing to meet with the union, it was important for us to have employee representatives, like we have with us here today, so that they can participate in any meeting.

PN51

But they wanted those meetings initially to be away from the company's premises and outside of working hours which was going to make it difficult for the female employees to attend. Eventually they were prepared to meet at the factory, again outside of working hours, and because of that, Commissioner, there has been no meeting held. In addition, and this goes to the matter that I sought leave of the Commission to appear on, that since that time there has been difficulty in holding meetings on site with the employees.

PN52

The union has complied with the provisions of the Act in respect of the advice given to the employer in respect of the notifications as required by section 285C of the Workplace Relations Act. And if I could just briefly quote 285C of the Act, if I could just quote from 285C(1) and (2), Commissioner, and that relates to discussions with employees and the power to enter premises to hold discussions:

PN53

Subject to subsections (2) and (3), a person who holds a permit in force under this division may enter premises in which: (a) work is being carried on to which ...(reads)... to become members of that organisation work for the purpose of holding discussions with any of those employees who wish to participate in those discussions.

PN54

And then in 285C(2):

PN55

Discussions to be held during breaks only, the person may only enter the premises during working hours and may only hold the discussions during the employees' meal time or other breaks.

PN56

Commissioner, I would just like to provide the Commission with copies of samples of two letters that were sent to the company, and not all the letters that were sent, in respect of seeking meetings for Mr Julian Cooke to participate in. The first letter is dated 2 March 2004, and that was seeking a meeting on 3 March. And the second letter, which is the second page on 21 April 2004, where a meeting was being sought on Friday, 23 April, and also a health and safety inspection of the premises. The meeting on 2 March, which was before the proceedings here, Commissioner, there was no problem with right of entry.

PN57

Mr Cooke was able to address employees while they were having their lunch in the lunch room and done so I think the employees have two separate lunch breaks and so there was no difficulty there. However after the Commission hearing, on a number of occasions - and Mr Cooke will be able to provide you with greater detail if you require it, Commissioner - then there was difficulty with him not - he was being allowed on the premises but wasn't allowed to address the people who are employees of the company in the lunch room as had previously been the case.

PN58

And what was indicated to him was that he would be able to use a landing, which was upstairs, a space which was five metres by four metres, it had I think six chairs, it didn't have any tables for the employees to have their lunch, and employees who attended the meeting would be fairly obvious to the employer in respect of who was wishing to participate in a union meeting and who wasn't, and there was some concern about the possibility of harassment as a result of that action. Mr Cooke attempted on a number of occasions after the hearing on 18 March to hold meetings with the employees and was prevented from doing so, even to the point where they brought an employee who was a person who installs curtains at the various premises to physically prevent Mr Cooke from entering into the lunch room to speak to the employees.

PN59

So that has been a matter of concern and we are seeking an order from the Commission to resolve the matters that we have - a copy of the order that we are seeking was sent to the Commission, but I have got another copy here - and was also sent to the company, and I will provide the Commission with a copy of that. And then also provide the Commission with a copy of some authorities which the Commission may want to consider in relation to that matter. So the directions that we are seeking, Commissioner, is that the company enables the officers of the CFMEU who have the appropriate permits - and what I probably should have said, Commissioner, that Mr Cooke has got the appropriate permits and has shown those to the company - be able to enter and conduct meetings with employees in the lunch room of the premises, and that within seven days of the date of this direction th company meet with designated officials of the union, together with three employee representatives, with such meetings to take place at the premises during the employees' work time.

PN60

I should add to that, Commissioner, if I may, and that the employees who attend be paid for that. Now there is a little bit of difference between the last time we was with you - in front of you - we were unable to have employee attend, this time we have and the company isn't paying for them, the union is paying for their wages for the time that they have left the premises of the factory today attending these proceedings until they return to work, Commissioner. But we would seek, in addition to what is there, that the employees who attend a meeting during working hours be paid for that by the company.

PN61

And then that the company and its employees not discourage any employees who wish to attend or participate in meetings conducted in accordance with the directions, discriminate against any employee who wishes to participate or attend at a meeting held in accordance with these directions, and that any dispute in relation to such directions would be referred to the Industrial Relations Commission forthwith, Commissioner. Just in respect of the authorities that I have handed up to you, I just want to make some brief comments, Commissioner.

PN62

The first case is a decision of a Full Bench of the Commission of Coldham, Gaudron JJ and Commissioner Mansini; The Australian Workers' Union v Albion Reid and that was in relation to - a general industrial dispute:

PN63

An applicant for an award is entitled to an award subject to the limiting provisions elsewhere in the Act unless the Commission ...(reads)... refrain from further proceedings should establish a case before the Commission to do so.

PN64

The second case is the Queensland Electricity Commission v Municipal Officers' Association; Pedersen J, Deputy President Polites and Commissioner Smith, where the Full Bench in that matter cited the Albion Reid case and the passages in it that I have just referred to. Likewise in the matter of the Adelaide Women's Centre v the ALHMWU, the Full Bench of President O'Connor, Senior Deputy President MacBean and Deputy President Bryant. The Full Bench in that case dealt with the powers to determine an industrial dispute and, in particular, cited with approval the proposition that a genuine industrial disputes give a prima facie right to exercise the Commission's jurisdiction and its ability to make an order or directions as sought.

PN65

What we are wanting to do, Commissioner, is not to establish what the outcome of any discussions would be with the company but to enable those discussions to occur in a manner that enables employees to participate fully without having any worry about their family responsibilities after work, without having any impost on their financial circumstances by reduction in wages, and that the union be able to meet with employees at the place where they are having lunch in places that is comfortable for them to do so, and required from time to time to speak to the employees about matters relating to the agreement that we are trying to negotiate, and other matters of concern to them. If the Commission pleases.

PN66

THE COMMISSIONER: Thank you. Yes, Mr Pels.

[1.47pm]

PN67

MR PELS: Yes, thank you, Commissioner. Commissioner, I apologise I have gone over old ground but the history of Pele Curtains, of course, it is a family business; it has been operating for 20 years. And it has the majority of employees currently of 34, five - 20 members have 10 years or more plus service, and the remainder five years plus. So they are long serving employees. Sorry, 20 members have 10 years plus service, and the remainder, or the majority have five years plus with the company.

PN68

So the fact is that despite what Mr Lowe is saying, of course, this is a company that does look after and is concerned about is employees. It has a very stable environment, however, being a small family company and working in a very competitive environment, since 2001, Commissioner, the staff numbers have been reduced by natural - well, apart from the redundancies in 2001 the staff numbers have reduced from 50 to 34 predominantly through natural attrition, and the administrative staff have been reduced from 12 to 6.

PN69

So it is a company that has found it difficult trading in the recent years. It is a very competitive industry, but despite that it is a company that up until perhaps a couple of years ago operated with very little disputation or problems or issues generally. However, we don't say the employees or the union deny their rights in regarding to seeking to organise and to recruit membership. That is their right under the Act. The company doesn't - the company has indicated that out of the 34, I think about 18 employees are members so it is almost 50/50 of union members versus non-union members.

PN70

But notwithstanding that, the company I think allows for payroll deductions. It doesn't deny employees their right to join or not to join a union as the case may be, and that has been the approach all along. And I think it is fair to say that until recently the right of entry hasn't been an issue either. However, since we last - since this matter was last before you on 18 March the company did agree to meet with the CFMEU and, as Mr Lowe has indicated, the company's preference was to meet in a neutral environment; for example, the AI Group. But then there was the issue of employees wanting to attend and ultimately the company indicated, well, for practical reasons it probably would be better to hold those meetings at the company's site which would allow those employees to attend and, of course, they would be paid.

PN71

However, the company has never denied the right of entry of Mr Cooke nor the right to meet his members and hold meetings during lunch breaks. I think it is fair to say there - what is now in dispute, of course, is where those meetings are held, and that is because the frequency of meetings has increased. Since January 2004 there has been approximately 16 visits have been had by the union to a state where they are coming in once or twice a week, and the union insisting that the meetings are held in the lunchroom.

PN72

Now, that, unfortunately, does create a problem with employees for those who don't want to be - have the union in all the time and there have been some complaints about that to the point where the union - we had Mr Evans in with his camera taking photos. We had - Mr Cooke I think had a petition for a number of employees - a number of people to sign a petition. And we actually had a complaint about that that some employees weren't told what the petition was nor were they given copies of the petition. And they complained about the continual harassment by Mr Cooke.

PN73

Now, as a result of that - and we have to say that obviously some would be happy and some wouldn't, but the company is indicating that to keep everybody happy they created an area, or there is an area on the mezzanine which is what they call the kitchenette area and it is an area which has - contrary to what Mr Lowe was saying, it does have a table, it is a kitchenette, they can have lunch there, it is private. The current lunchroom, of course, is very open. It is open to the public and it is open for management to see into that tearoom, and it doesn't afford a lot of privacy and nor does it afford any privacy for those union or non-union members that don't particularly want to go to the union meeting.

PN74

So the company conveyed to Mr Cooke and said, look, we will provide an area that is outside in the car park or on the mezzanine area which will provide total privacy and everyone will be happy about that. So the company is saying that was their preferred position, and I think a couple of days before the company was due to meet in accordance with your recommendation and directions Mr Cooke simply cancelled that meeting I suppose on the guise that he couldn't meet with his members beforehand. It is fair to say he was unhappy about meeting in the alternative area, that is being the mezzanine floor.

PN75

So, in effect, that is the nub of it, Commissioner. Without saying who is right or wrong about the whole issue, that is pretty much the nub of the issue. So the company totally refutes any suggestion there is any forms of discrimination or harassment. I suppose an accusation could be labelled on both sides. What we say is we put all that to one side. The company's alternative proposal we say would have met all the requirements, allow the company - the union to meet with its members and then subsequently meet with the company regarding the proposed EBA. So the company was prepared to meet at those times so what we say is through no fault of the company, that that meeting didn't take place.

PN76

So in regard to Mr Lowe's suggestion that the company is in breach of 285, section 285C, we say that it is not necessary for the Commission to exercise its powers under section 285G because in these circumstances the right of entry hasn't been imposed on the union. And the thing is, I think the company's position is unchanged, Commissioner, regarding the EBA; that really even if it wanted to enter into an agreement, it is not in a position to do so. The recent national wage case will provide for predominantly a full $19 pay increase for employees which will equate to roughly 4 per cent so the employees will attract or receive a 4 per cent wage increase as a result of that. So in that sense their wage rates will be maintained.

PN77

So in relation to that, Commissioner, we are happy to go into conference and, suffice to say, we indicate that there is no need - we strongly object to any suggestion that the Commission issues any orders. Recommendations, we don't have objection to, but the company has already attempted to comply with your recommendations to meet last time. However, it was the union's choice, we would say, not to meet and I think we will request that we move into conference, Commissioner.

PN78

THE COMMISSIONER: Mr Pels, what would you expect or like to come out of conciliation?

PN79

MR PELS: Well, consistent with your recommendation last time, that the parties meet and the company at no stage has said they wouldn't meet. In fact, they did bend over backwards to meet at the company's site on a certain date and allow the union right of entry, and the company is prepared to do that. That is in line with your recommendation from the last time, Commissioner.

PN80

THE COMMISSIONER: Right, and there is the issue raised by Mr Lowe that the company subsequently said that they would meet on the premises but, as I understood it, they would meet after hours which gave some difficulty.

PN81

MR PELS: Yes, they did confirm it would be just after those hours.

PN82

THE COMMISSIONER: Right, okay. Thanks.

PN83

MR PELS: But I think the - I would certainly recommend or suggest that the company in further discussions that they perhaps try to arrange to have the meeting during hours, during a break and before or after that so - I mean, but either way I mean the company is not putting obstacles in the way of the union to having a meeting.

PN84

THE COMMISSIONER: Okay, thank you. Mr Lowe, you heard with Mr Pels said. Now, I think he also said that there is something like - there has been 16 meetings between today's date and the beginning of 2004, sometimes twice a week.

PN85

MR LOWE: Look, I am not sure, Commissioner, of the number of meetings that have occurred.

PN86

THE COMMISSIONER: We are still on transcript. Thanks, Mr Lowe.

PN87

MR LOWE: Sorry, Commissioner. Look, I am not aware, Commissioner, of the actual number of meetings. There was some initial problems when Mr Cooke first went out there in respect of inadequate drinking water, those types of things, being provided by the company. And so there was visits to see whether those things were being fixed up and dealt with. I am not too sure whether Mr Cooke can tell you how many meetings were held or were sought to be held. I don't know that it has been 16. If we take the meetings that we have attempted to hold, there was no problem with any of the meetings until after we came here, Commissioner.

PN88

THE COMMISSIONER: Right.

PN89

MR LOWE: So the meetings were advised in the normal manner, and I have given you examples of the letters that have been provided to the company. Mr Cooke was provided every courtesy. He spoke to two separate groups of people during their lunch breaks because they have a split lunch break between 12 and 12.30, and 12.30 and one I think is the times. And that was fine until we ended up here, and it seems to me the fact that we have brought the matter here and whether the company felt that they were being put into some sort of corner or not, I don't know. But what we did go back to the company was to advise the employees to say, well, look, the company says that you are happy with everything, it is on transcript. We showed them what the company's position was. And the employees, according to the information I have been given by Mr Cooke, were not happy about that and wondered what they could do.

PN90

And so the petition, if you like, I understand is that the company was - the employees were trying to indicate to the company that they wanted the union to negotiate a wage increase for them. That is how they have seen it. Now, we have two employee representatives here, Commissioner. They are not shop stewards or anything like that, but they are just members of the union. One is from - both of them come from the separate groups that - like, you know, one is from one lunch break and one is from the other lunch break. They would be able to provide the Commission, I am sure that if the Commission asked them with any information about what their fellow workers are saying and whether or not - because we would refute that - we haven't had anybody coming to us, and I asked the employee representatives had there been anybody coming and saying they didn't want union meetings in the lunchroom; and the answer that I got was no.

PN91

Now, all I can do is say that is what I have been told. I can't - I haven't got any concrete proof one way or the other. And we can get into a situation like this where the company is saying, look, people have been pressed that they don't want the union there, and we are saying, no, that is not true, etcetera. So that is the situation we are in, but we are here because we felt completely frustrated in (a) being able to meet and talk to employees about matters relating to their wages and terms and conditions of employment; and meeting with the company at times that was going to be conducive to participation by employees.

PN92

Now, I don't know what arrangements that people have but I know that often female - women employees, when they finish work, have to go home and look after children, pick children up from school, there are those types of things, and so the company, in bending over backwards, as Mr Pels has put it, I would say would be a gross exaggeration of what actually happened because it seemed to me that every time we sought a meeting which would enable - Mr Cooke or I or anybody, we can meet at any time, anywhere, that is what we are paid to do - but to have the employees being able to meet and participate and talk to their employer about those things, then their time is limited and they are not in the same position as we are.

PN93

So what we were seeking to do was to arrange meetings at a time that suited the employees and that didn't put any penalty on them. Mr Pels indicated that the company had said that they were going to pay, the company wasn't even prepared to pay for them to come to these proceedings today. That is certainly something that the union is paying for and we are not bitching about that and that is not a problem to us, but the issue is that when it comes to the company releasing people from work and paying, by the way they have operated, then I have some doubts as to whether they would be sincere in saying they were quite happy to pay people, because if they were doing it outside of working hours, then they would be paying them at overtime rates.

PN94

Yes, Commissioner, that is where we are. I am happy to go into conference if you think that that would assist the process. What we are wanting to do is have some commitments that will be actually met because we have had recommendations from yourself previously and that was why we sought directions which would carry a little bit more weight, Commissioner. If the Commission pleases.

PN95

THE COMMISSIONER: Right. Mr Pels, do you wish to say anything?

PN96

MR PELS: No, Commissioner.

PN97

THE COMMISSIONER: Okay. The Commission is not going to, in this matter, try and proportion blame as to who or who may not be responsible for meetings that were proposed to occur and yet haven't occurred. What it would do is issue a further recommendation understanding that what Mr Pels said in terms of the company's position. The parties know that the Act encourages parties to reach an enterprise agreement. It doesn't compel them to reach an enterprise agreement but it encourages them.

PN98

Ultimately, at the end of the day, and the Commission said last time, ultimately, at the end of the day if the employer chooses not to enter into an agreement that is their right under the Act and the union have their rights under the Act as to what they may wish to do. But to try and move things along, in terms of the right of entry I hear what the parties say. What the Commission would simply do is recommend that there be ongoing compliance with section 285C of the Workplace Relations Act and that if the union wishes to conduct meetings with employees, whether members of the union or not, that they be entitled to do so at this stage in the company's lunchroom on the premises.

PN99

The Commission would also recommend that within seven days of today's date the company is to meet with the designated officials of the CFMEU together with three employee representatives with such meeting to take place at the premises during the employees' work time and that the three employee representatives who attend such meeting, or meetings, shall be paid by, their company, their regular wages for attendance at such meeting or meetings.

PN100

It goes without saying that neither party is entitled to discriminate against any potential member or member or employee who wishes to participate in such meetings. And neither party is to consider any attendance at such meetings in a way that would place the ongoing employment of the employee in jeopardy. If there are issues that are outstanding after the parties have met on whatever number of occasions they choose to meet either party is free to have the matter referred back to the Commission and then the Commission would see whether it could conciliate an outcome.

PN101

Is that reasonably clear? I think it is pretty straight up in compliance with the Act. Let us just see how you go with your chats. I mean, maybe the company could break the ice by providing Tim Tams or something, I don't know. Right. The Commission will stand adjourned.

ADJOURNED INDEFINITELY [2.06pm]