C2004/2216, Transcript of Proceedings [2004] AIRCTrans 2173 (9 June 2004)

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TRANSCRIPT OF PROCEEDINGS

O/N 11523

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT HARRISON

C2004/2216

APPLICATION FOR AN AWARD

Application pursuant to section 111(1)(b)
of the Act by Comalco Aluminium Limited
for an award

SYDNEY

10.03 AM, FRIDAY, 28 MAY 2004

Continued from 29.4.04

THESE PROCEEDINGS WERE CONDUCTED BY VIDEOCONFERENCE IN SYDNEY

PN91

THE SENIOR DEPUTY PRESIDENT: I think the appearances are the same as when this matter was last before me. Unless you have agreed to tackle this morning's exercise in some other way I thought I might have started with you first Mr Coonan.

PN92

MR COONAN: Yes, thank you Senior Deputy President. Is it okay to remain sitting down?

PN93

THE SENIOR DEPUTY PRESIDENT: Yes.

PN94

MR COONAN: Thank you. Since the last hearing Senior Deputy President we have tried to make some considerable progress. On Friday 7 May we forwarded a version two of the agreement, taking into account many of the union's comments. Provided that to the unions with the objective of a meeting on 12 May. On Monday 10 May we also forwarded each of the unions a comparative chart setting out the status of negotiations in a table form, outlining those issues which the company was to respond to those issues which the unions were to respond to. That was to be the basis, or an agenda, for the meeting of the 12th.

PN95

We received an email from one of the unions indicating that unless the company was prepared to respond on the issues of classifications then the meeting of the 12th could not go ahead. Let me clarify that. In that version two we had not been able to provide a full response to the issues of roster hours and wage classifications and rates. However, there were a considerable number of other clauses where we were able to respond, so on 11 May we responded by email to all representatives of the unions that there was still value in the meeting of the 12th. There were a number of other issues that could be progressed, notwithstanding that we hadn't reached a final position on wage rates, hours and rosters.

PN96

Over that day and the 12th we made various attempts to contact the union representatives by telephone and email to see whether we could get that meeting that was scheduled for the afternoon underway. We had one phone call saying that the unions were of the view that the meeting was cancelled and they would not meet with the company until the company responded on all issues including classification, structures and wage rates. Notwithstanding our view that that was a valuable opportunity wasted to progress the other clauses, faced with that reluctance by the unions to meet, or refusal of the unions to meet, we proceeded over the next two days to review the full award so that on 13 May we provided a version three of the award which addressed all outstanding issues from the company's perspective.

PN97

This included a revised wages rates and classification structure. On the 14th and the 17th so the Friday and the Monday, after delivering that version three to the unions, we made numerous phone calls to see whether the unions would agree to a meeting now that we had met their requirements for such a meeting, that is addressing the wages rates and classifications. On the 18th we had one union return the phone call saying that that union was available for a meeting on the 20th. We attempted to pursue the other two unions on the 18th to get confirmation that they also were available for the 20th. However, on the 19th that union that was available rang up and said that after discussion with the other unions that they were not prepared to go ahead with the meeting on the 20th. In their view that the unions' view was that the meeting on the 20th would not be of any assistance to resolving the issues between the parties.

PN98

On the 20th we then sent emails to each of the unions insisting that the meeting take place and again emphasising that each of the issues which we were required to address from the period of the 29th before you, had been addressed, and/or would be addressed in that meeting. As a result the unions did agree to meet between 1 pm and 3 pm on last Friday to discuss version three of our award. That discussion was attended by two of the unions. The other union wished to attend but because of another dispute that arose had to attend a dispute hearing but there was an agreement that we would proceed on behalf of all the parties in that meeting.

PN99

I would say that there was some fruitfulness in that meeting. There were a number of issues, and I'll cover them in a second. We finally had the unions respond to each of the - I think there were six or seven issues they were to respond to and we took them through the 11 or 12 issues which we had amended between version three and also took the opportunity to discuss the differences that remained between the parties. As a result of that meeting we agreed to look at a number of other issues and come back with a version four of the award to be tabled with the unions either on the Tuesday of this week, at which stage there were going to have a secretary's meeting to discuss it, or as it turned out on the Wednesday. So we delivered a copy of the version four of the award on the Wednesday for all the state secretaries to consider at their meeting scheduled 2 pm on that day.

PN100

Yesterday we were informed that that meeting did not occur. Timing issues I think with one state secretary. So we are in the position where version four of our award we have had no response to. Further than that the unions indicated that they may not even be in a position to respond today to that version. That's a brief history Senior Deputy President of how we have tried to progress this matter. Perhaps I should let you know exactly where we are now on the various quarters. In relation to award title, anti-discrimination, commencement dates, and parties bound, there is agreement. In relation to the disputes avoidance procedures we have amended our original position by way of version four and we are waiting a response from the unions to the amended avoidance of disputes clause.

PN101

Employment categories has now been agreed. We've met, as we understand met all the unions' concerns in that area. On performance of work clause is agreed. On the stand down the clause is agreed. Termination of employment the clause is agreed, subject to seeing what comes out of the Full Bench test case decision of course.

PN102

THE SENIOR DEPUTY PRESIDENT: What was that clause again?

PN103

MR COONAN: The termination of employment - severance.

PN104

THE SENIOR DEPUTY PRESIDENT: And when you say it comes out of the test case which test case are you referring to, redundancy or?

PN105

MR COONAN: Yes, the redundancy test case Senior Deputy President.

PN106

THE SENIOR DEPUTY PRESIDENT: What comes out by way of a final order your mean?

PN107

MR COONAN: Correct.

PN108

THE SENIOR DEPUTY PRESIDENT: I understand, yes, continue.

PN109

MR COONAN: Wages rates and classification structure we are awaiting a response from the unions. On junior rates there is now agreement. On annualised salaries and salary sacrifice we understand there is agreement. On national training wage, support wage and apprentices there is now agreement. On allowances, waiting a response from the unions. On hours of work and rosters, awaiting a response from the unions. On meal breaks there is substantial agreement but we are waiting response from one matter from the unions. On rest break, substantially agree, but awaiting a response on I think one or two matters from the unions. On overtime substantially agreed but awaiting response from the unions. On Saturday work substantially agreed but awaiting one minor response from the unions. The same for Sunday work. On public holidays substantially agreed just awaiting response from the unions on some minor matters. On annual leave and loading essentially agreed but awaiting some minor response from the unions. Long service leave, personal leave and parental leave, they are now agreed clauses. On training clause requested by the unions, we have put our proposal back and we are waiting their response to that.

PN110

On the definition of in-charge, or leading hands clause requested by the unions we are waiting for a response to our classification and wage structure before proceeding that further. That also applies to the electrical trades allowance, licence allowance. Stand-by is a matter which isn't agreed. Transport and employees agreement has now been reached on the union's request for a clause. On nightshift and noticeboard, no agreement.

PN111

THE SENIOR DEPUTY PRESIDENT: What was the last, of the last two categories, that you were not in agreement about?

PN112

MR COONAN: Senior Deputy President, that was noticeboards.

PN113

THE SENIOR DEPUTY PRESIDENT: Noticeboards. You are not in agreement about noticeboards?

PN114

MR COONAN: Correct. And also nightshift for day-workers.

PN115

THE SENIOR DEPUTY PRESIDENT: Yes, thank you.

PN116

MR COONAN: As we see it, Senior Deputy President, there is substantial agreement on the majority of clauses. However, unless we are mistaken in our perception of events to date, the matters which we see that will require arbitration will be wage rates and classification structures, hours and rosters, allowances, noticeboards and stand-by.

PN117

As I say, at this stage that is our perception. Because whilst we thought we were close to agreement from our meeting last Friday we have had no response to the movements we have made in version 4 of the Agreement provided to the union on the 26th. What we are requesting now, Senior Deputy President, are directions from the Commission.

PN118

We are seeking directions that within one week the unions respond to those outstanding matters, to provide their final position. So that will be next Friday. By the following Wednesday we would provide to the Commission and to the unions a list of the matters that are outstanding between the parties. By Friday of the following week we would provide written submissions to the Commission in support of our position on the matter through arbitration. Then a week after that the union's would provide responses. And, as soon as possible, the following week or the week after a short oral presentation before yourself on those outstanding issues.

PN119

THE SENIOR DEPUTY PRESIDENT: What is going to be short? The hearing, the arbitration?

PN120

MR COONAN: The short oral submissions, yes, Senior Deputy President.

PN121

THE SENIOR DEPUTY PRESIDENT: That is the arbitration, is it?

PN122

MR COONAN: Correct, yes.

PN123

THE SENIOR DEPUTY PRESIDENT: Your current assessment is that no witnesses will be required - will be called?

PN124

MR COONAN: Yes, I stand corrected, we would probably have one witness on the classification systems.

PN125

THE SENIOR DEPUTY PRESIDENT: And where is that witness based?

PN126

MR COONAN: That witness is in Gladstone but that witness can come to Brisbane or Sydney for that matter.

PN127

THE SENIOR DEPUTY PRESIDENT: All right, well putting to one side the issue of just what sorts of times each side might have to do the various things you have identified, you are looking at a hearing in about one month's time, are you?

PN128

MR COONAN: Yes, we are requesting a hearing as soon as possible after that month, yes.

PN129

THE SENIOR DEPUTY PRESIDENT: Yes, I understand. All right, Ms D'ath.

PN130

MS D'ATH: Thank you, your Honour. Just in relation to the chronology that Mr Coonan has spelled out; it is reasonably accurate as far as the meetings that have occurred. I think that the way that it has been outlined attempts to put a bad light on the unions again, as Freehills have sought to do every time they have come before the Commission.

PN131

I think that the situation - and if you put aside the company's views as to when we should have met and our responses to phone calls and so forth - I think that the fact that there have been a number of versions of the document, that there have been discussions between the parties, shows that the parties have genuinely been attempting to try to reach a consent award in this matter. I can't comment at this stage as to the list that Mr Coonan has run through as far as what is agreed and what is not. I haven't seen such a list and I was the one who was absent from last Friday's meeting so I am not familiar with what has been agreed, or not agreed, to date.

PN132

I certainly would be critical or oppose any proposition that we are now at a stage that the parties should set dates for arbitration simply because the unions have received version 4 on Wednesday, and we haven't provided a response yet. I mean, the fact is that the company had advised that they would try to get a response to us by Tuesday, that didn't happen. Two of the secretaries did in fact meet on Wednesday, despite the advice Mr Coonan has received, but that was prior to 2 o'clock; we didn't have a draft version for that stage.

PN133

So, the three unions have been unable to have a meeting between Wednesday afternoon and this morning, being one working day, to actually go through version 4 to find out what our views are at this stage on that matter. So, we think it is a bit premature to go straight into saying, well we now know what is outstanding and let us arbitrate.

PN134

In relation to - and this is just a bit of background for your information, your Honour. In relation to why the unions didn't originally meet on the proposed date with the company, the answer is quite simple. The company's representative when this matter was last for report-back did advise on transcript that it could provide a response to the union's draft document, in full, within a week's time. Well, in fact, that did not occur.

PN135

The fact is that it wasn't till version 3 that we had a complete response from the company and that was 13 May. We are not saying that to be critical of the company. We are just trying to show that the timelines that all the parties have met have been more than reasonable; no-one has been dragging their feet as such. The company rightly took a couple of weeks, at least, from the last report-back to prepare a substantial response to what the union had previously put to them. There was a meeting subsequent to that, some week later. Again, not an unreasonable timeframe and we have now received another draft document in response to that meeting.

PN136

My request today, your Honour, would be to list the matter for report-back in a fortnight's time to allow the parties to look at version 4 and to work out exactly what is still outstanding. I take on board - if the list that Mr Coonan has run through is accurate on the face that it may appear that the majority of clauses itself is agreed to the fact is that the major parts of the proposed award are outstanding. We all know that is easy to reach, sometimes, agreement on 90 per cent of the clauses but that the 10 per cent remaining are the major clauses; especially when you are talking hours of work and wage rates and so forth.

PN137

I would through the Commission request that the list of agreed and outstanding matters, Mr Coonan read out, be provided to the unions to assist us in further progressing the matter and that as stated we would be speaking a further report-back in a fortnight's time. I think that timeframe is tight, and it is consistent with the way these proceedings have been dealt with so far, but it gives the unions adequate time to look at the draft and to consult jointly so that we are able to have a single position on the draft. If your Honour pleases.

PN138

THE SENIOR DEPUTY PRESIDENT: Mr McCauley?

PN139

MR McCAULEY: Thank you, your Honour. Yes, the AMWU supports the submissions of the AWU. It is fairly clear that no-one has been dragging their heels on this and that rushing into arbitration would cut short any opportunity to properly examine version 4; which was only provided two days ago.

PN140

THE SENIOR DEPUTY PRESIDENT: Yes. Mr Flatt?

PN141

MR FLATT: Thank you, your Honour. I have taken the opportunity to prepare a short chronology of this matter to date because I think it is useful for the Commission to have that on record, and I can provide copies to the parties in Brisbane by email later today provided that I think it is going to be fairly uncontroversial but I've provided copies of the AMWU Today. It's basically a chronology since the CEPU and the AMWU became involved in this matter back on 5 March and just the steps taken and the meetings that have occurred since then.

PN142

In particular, on the second page in relation Friday 7 May, as Mr Coonan has stated, the version 2 of the revised CAR was provided to the unions on Friday, 7 May. It was the CEPU and myself on behalf of the combined unions that by email forwarded some correspondence on 19 May to Comalco via Freehills. Version 2 did not provide responses to a number of issues that Comalco had indicated it would provide to the unions.

PN143

In particular the Version 2 did not provide responses to many more areas than was just reported by Mr Coonan, there was wage rates, classifications, apprenticeships, training, a number of shift and allowance issues as well. A number of these issues were silent and the version and it was later informed to the unions that that was a rejection of it but we received no formal response on those points and, in fact, the combined unions proposed award had been dropped completely as a document that has been worked upon.

PN144

We have had to rely upon the Freehill documents which are to say the least a lot shorter and not as clear on a number of points, so that's taken a large amount of the cross referencing back and forth and as you can see we've been provided with a 40 page document that the unions have been working on over the last few meeting. It attempts to compare the two positions and it's just as good a background. It's quite a lengthy process.

PN145

So that was the reasoning behind my communication on 10 May that we needed to get some responses on this other area. As a reply to that on 13 May, Comalco provided a revised proposal. This was the Version 3 and it did contain some responses on wage rates, classifications and apprenticeships. That was the reasoning behind the union's not responding on a meeting on 12 May because it wasn't seen as going to be useful for our time.

PN146

Also in relation to the CEPU, I am personally going to Brisbane for these meetings. The CEPU belies it's important for the notional office to be involved so there is cost implications in that. So we didn't see that the meeting on 12 was relevant in light of those responses not being provided. Then the response was provided on 13 May and officials of the AMWU and CEPU, myself and Mr Moorehead from the AMWU met with the company representatives and Freehills on Friday, 21 May.

PN147

That was a short meeting because there was a number of appointments that all the three unions had during that week and we attempted to at least get some discussion during that week and we were able to have s short two hour meeting. I personally attended that, as I said, and a number of those clauses that Mr Coonan has stated were agreed upon. There was discussion around them and, in particular, the responses from the unions in relation to the seven clauses that needed to provide responses on.

PN148

It was made clear at that meeting that our agreement on those was conditional upon responses in other areas, particular classifications, wage rates and allowances and that we agreed in principle with some of those but our ultimate decision would be responded on the total nature of the award put up by Freehills and Comalco.

PN149

I also made it clear that agreement in areas such as long service leave, personal leave, a number of other areas, overtime shift rates, was conditional upon this meeting with the State Secretaries as well and we were attempting to have on the Tuesday or the Wednesday and that we would be looking at these clauses and there was some improvement on the earlier Version 2 drafts but that was still dependent on all three unions meeting together and discussing those and providing responses.

PN150

As has been mentioned this morning, their response was provided on Wednesday 26 May to a number of those issues, Version 4 of the award. I made it very clear to the representatives of Freehills that both myself and Evan Moorehead were unavailable and out of State during that week. Evan Moorehead was in training with the AMWU; I was involved in a coal conference delegates course for the majority of the week and was at night at my computer or able to get to one and that I would not be able to see the draft till I returned late yesterday to Sydney.

PN151

I arrived yesterday to the Version 4 and had a quick look through it. That was not assisted by the fact that there is the no editing of the changes in this Version 4. There is no referencing to what are the new insertions of matters agreed at the last meeting or what has been taken out which also increases the time that's going to be necessary in examining it.

PN152

As has been mentioned earlier, the State secretaries have not had an opportunity to meet, all three. Two have but the CEPU State secretary was unable to meet. We would request, sorry, we would support the submissions that we do need a further two weeks to look through this Version 4. Hopefully Freehills can provide us a copy that is actually edited to show changes and we can then get a response. So, in light of that, if there's no further questions, they would be our submissions.

PN153

THE SENIOR DEPUTY PRESIDENT: I won't mark that document, Mr Flatt, but I note your undertaking to send a copy of it as soon as possible after we adjourn today to the representatives in Brisbane. Mr Coonan, I will give you now an opportunity to respond but I am assuming it would not be a difficult task to provide at least Version 4 marked in an appropriate way so that changes from Version 3 are immediately apparent. Is that what you want, Mr McCauley, a change for Version 3. Sorry, Mr Flatt.

PN154

MR FLATT: Yes, that would be very helpful to the union and parties when we go through the process of examining the changes.

PN155

THE SENIOR DEPUTY PRESIDENT: It seems to me a reasonable request, Mr Coonan, if that could be attended to as a matter of some urgency. The other thing, too, so I better understand what might have happened to the original what I call competing draft that first came into existence representing the union's position, has that disappear?

PN156

MR FLATT: It seems to have dropped off. We raised this with the Freehill representative by email in my earlier correspondence of 10 May, that it would have appeared more useful to have based these discussions upon this proposed combined union award, even if that was a matter of striking out and going through them and crossing out the points that weren't agreed to because it is the more comprehensive document.

PN157

It has been gone into and all drafts based upon the company's first version which has increased in length by eight pages to now I think a large 20 but we are still working off that document and that makes analysis, as I've said, more time consuming and a longer process.

PN158

THE SENIOR DEPUTY PRESIDENT: Personally, I don't mind one way or the other. In an ideal world I prefer to work off one document with an indication of what within it is agreed and what is not agreed and then, in addition, somewhere within that document or by way of an annexure what deficiencies the union say it has, as in things that just aren't in there at all. If the matter is working its way towards a hearing that sort of document is going to be the most useful one for me.

PN159

So, Mr Flatt, I leave it to you and the other unions to persuade Mr Coonan to bring back into existence your document and to cross reference it but that's probably not something I direct you to do. The sort of document that I suggested will ultimately be useful to me. Mr Coonan, what do you want to say in response.

PN160

MR COONAN: Deputy President, a couple of points. I note your position on the document. I also reserve our position on the chronology as well. You haven't marked it and we reserve any objection to it once we see it as well. On the specific points you raise, Senior Deputy President, I just find some amazing jumps in logic here. The document takes longer to review because it is shorter, sorry?

PN161

THE SENIOR DEPUTY PRESIDENT: Are you criticising my logic there Mr Coonan, or the unions'?

PN162

MR COONAN: Far be it for me to do that, no Mr Flatt's logic.

PN163

THE SENIOR DEPUTY PRESIDENT: Well I don't know that that's necessarily fair but the fact is it might have gone from eight pages to one, but if I was on the receiving end of it, I'd like the eight pages with a line through the seven so I know what has occurred. So I think it is a fair request.

PN164

MR COONAN: Just on that if the Commission pleases the early discussions over this document, you will recall we were having trouble getting discussions going. We had to produce a draft to get discussions underway. We had to come to this Commission to even get a response from the unions, which was then their version. Now all of a sudden we are asked to go back and use their version and not ours. With respect, what we have done in the early versions of this document, we've had tables where we have had our cause, the unions' cause right next to it. Now I'm happy to go back to that. I'm not going back, with respect, to saying this is the unions' version document and we'll work from this. I'm happy to say, here's our version where it is up to at the moment, here's your original claim, here's the difference.

PN165

THE SENIOR DEPUTY PRESIDENT: Yes, I'm not suggesting that you do Mr Coonan. The parties can do whatever they like about the form in which they exchange documents reflecting where they think they have got to in discussions. I had foreshadowed the type of document that will ultimately be of assistance to me. That's all I wish to say on that topic today.

PN166

MR COONAN: Yes, as I say Senior Deputy President we think that's the document that's got to be of more assistance to you, where we are at, what their claim is, if we are now appearing to be that their claim is that document holus bolus, but I won't go there. But we will provide for all the parties a comparison of what our version four is, what the unions' position was and see how they are different on a comparative chart. Therefore I suggest I should not do it in mark up. If I did that in mark up then the Commission consider changes that have been made over the past three weeks, that would triple the length of that document. As I say I think with that comparative chart basis it will be starkly obvious what the issues are.

PN167

I'll also provide to the unions that summary sheet of the version four of our document which sets out what we believe were the agreed clauses and what are the remaining clauses between the parties. Just in response to something Mr Flatt raised. Again, with respect Senior Deputy President, it took us three weeks to get any response from the unions on their issues that they would respond to. Having got that response because of what I could say was a roughly presented letter to the unions of what our position would be if they didn't meet. It was only in response to that letter that the quick two hour meeting last Friday afternoon was arranged. So I go back to the position that we have made every attempt. We missed one deadline by one day with our document. We offered the unions a two day extension for their response to that document. When they were one day late we offered them a two day extension. It took us over nine days and a significant threat to get any response from them.

PN168

I will reiterate Senior Deputy President please is that we would like within a week to have a week of us providing those documents to the unions, a response to each of the outstanding clauses. I think that will crystallise quite clearly what the matters for arbitration are and as I say with respect I do not think we need to come back for report back once those matters are are crystallised. Let's get it on so to speak. We can get submissions, affidavits and the process goes on. We have now been trying to do this since February. We have spent three months of, with respect, trying to drag the unions along in this process and we are asking for some finality. So we reiterate our request for the directions sought. May it please the Commission.

PN169

THE SENIOR DEPUTY PRESIDENT: All right well I will shortly go off transcript to talk about some dates, but I might just indicate generally what I am inclined to do and I think it is appropriate that be recorded on transcript. I am going to have this matter listed again for report back in two, two and a half weeks. In that time I will indicate what I expect will occur so that at that report back it is clear to us all what matters need to be the subject of an arbitration. I am also when I go off transcript going to talk about holding some days for potential arbitration. So we will now go off transcript.

OFF THE RECORD [10.38am]

RESUMED [10.49am]

PN170

THE SENIOR DEPUTY PRESIDENT: Now this matter is listed on 15 June here in Sydney at 11.00 am for report back and programming and I've indicated that I'm holding the 21 and 22 July for a hearing in Brisbane re matters that need arbitrating. I'll hold the 23rd also and not list but hopefully any matters that need arbitration can be adequately dealt with in the two days.

PN171

Now I understand that what's going to happen between now and the report back that I have listed for 15 June is Mr Coonan is going to provide a copy of version four that highlights the changes that have been made from version three. Also a document that provides what he understands to be the competing positions of the unions and the company in relation to matters contained in version four. I suppose there might also have to be an additional document in relation to conditions not in version four that he understands the unions are proposing.

PN172

I don't know if there was some other document too that I have overlooked that you are providing Mr Coonan, is that it?

PN173

MR COONAN: Yes Senior Deputy President you've asked us to provide that summary I gave at today's hearing of the matters of version four agreed - - -

PN174

THE SENIOR DEPUTY PRESIDENT: Yes of course, that's at least where you believe, where the company things they have got to. No one is going to be held to what they understand but at least that's where you've got to. Now I think it is necessary within seven days of receipt of those documents that the unions respond. The response might be by way of a meeting with Mr Coonan and his clients or at least a response in writing but I would have thought maybe a meeting is best.

PN175

Now it also seems to me that at, or shortly after that meeting, the unions need to clarify or confirm in writing what their position is in relation to version four, what they agree, what they don't, what additions to it they see. So I want to be in a position on 15 June to know exactly where you are apart and exactly what is asked of the Commission in relation to arbitration in Brisbane. That's probably as far as I want to go today but I will just adjourn on the basis that each party has liberty to apply. Madame Reporter if possible if we could have the transcript sooner rather than later that would be useful. The Commission now adjourns.

ADJOURNED UNTIL TUESDAY, 15 JUNE 2004 [10.52am]