C2004/4217, Transcript of Proceedings [2004] AIRCTrans 2505 (7 July 2004)

AUSCRIPT PTY LTD
(Administrator Appointed)
ABN 76 082 664 220

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

TRANSCRIPT OF PROCEEDINGS


O/N 7600
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER MANSFIELD

C2004/4217

RESTRICTIONS IN TORT

Notice under section 166A of the Act
by TXU Electricity Limited re application
by TXU Australia Services Pty Ltd and
TXU Electricity Limited gives you notice
of intention to bring action in tort against
Communications, Electrical, Electronic, Energy,
Information, Postal, Plumbing and Allied Services
Union of Australia

MELBOURNE

11.11 AM, FRIDAY, 25 JUNE 2004

PN1

MR I. DIXON: I seek leave to continue my appearance on behalf of TXU Australia Services Pty Ltd and TXU Electricity Limited. With me is MR G. McTAGGART.

PN2

MR G. BORENSTEIN: I appear for the CEPU along with MR W. HAYES, an organiser from the CEPU.

PN3

THE COMMISSIONER: This is a matter which has been notified by TXU. It concerns a large number of TXU employees not attending work yesterday and calling in sick. I would understand that TXU believes that it is a form of industrial action which is being taken and the individuals were not legitimately unable to work. Mr Dixon.

PN4

MR DIXON: Thank you, Commissioner. That is quite so. We notified a section 166A application for that reason. It has been the subject of considerable media comment and we believe, as we said, in the notice that it is unauthorised absence from work which is in concert and with an industrial dispute rather than any general genuine illness.

PN5

There are various media commentaries which have taken place. Mr Mighell, the Secretary of the ETU, has been interviewed and says that it is a very nasty bug; a bad case of "lineitis". Something like 220 out of 240 people did not turn up and I will come to that in more detail, but - - -

PN6

THE COMMISSIONER: That was 220 out of 240, Mr Dixon?

PN7

MR DIXON: Yes, yes, it is a fair coincidence and we say it stretches the bounds of credibility. But before we get started, Commissioner, something came to us through TXU actually addressed to the ETU and its members care of us, and it is a get well card to them and - - -

PN8

THE COMMISSIONER: I see.

PN9

MR DIXON: It is to the ETU and its members:

PN10

Get well soon. From the people of Victoria, and a genuine feeling of sympathy and warmth.

PN11

But I don't seek to tender that because we have some doubts about its genuineness.

PN12

THE COMMISSIONER: Yes.

PN13

MR DIXON: Yes. And - - -

PN14

THE COMMISSIONER: Is there a signature on it - it is from the people of Victoria?

PN15

MR DIXON: No, it just says from the people of Victoria, Commissioner, and it is probably not genuine - - -

PN16

MR BORENSTEIN: Commissioner, I - sorry, I just - - -

PN17

THE COMMISSIONER: Perhaps Mr Theophanous sent it.

PN18

MR DIXON: - - - any more than the certificates we believe are not genuine.

PN19

MR BORENSTEIN: I don't know why it is - - -

PN20

THE COMMISSIONER: Mr Borenstein.

PN21

MR BORENSTEIN: Well, Commissioner, if Mr Dixon - - -

PN22

THE COMMISSIONER: Would you like it to be tendered, Mr Borenstein, or not?

PN23

MR BORENSTEIN: No, I don't think - well, if someone can so authorise the document, well, it may be tendered, but I don't think that is what Mr Dixon is saying.

PN24

THE COMMISSIONER: It has about the same standing as Mr Mighell's comment about a nasty bug and lineitis, I think, Mr Borenstein.

PN25

MR BORENSTEIN: Well, I prefer that these matters - these matters are serious matters and if Mr Dixon is going to make a case, well, he can provide us with evidence which we haven't got.

PN26

THE COMMISSIONER: Well, he is coming to that, Mr Borenstein and as soon as you sit down, he will start to do it.

PN27

MR BORENSTEIN: Well, I asked him to provide us with the evidence before so that we could actually look at it and he refused to do so.

PN28

THE COMMISSIONER: Well, the evidence he has put forward so far, Mr Borenstein, is that 220 out of 240 individuals reported in sick.

PN29

MR BORENSTEIN: I haven't seen any evidence of that.

PN30

THE COMMISSIONER: Now - well - - -

PN31

MR BORENSTEIN: He hasn't put any evidence, he has made - - -

PN32

THE COMMISSIONER: He has yet to come to it and I am yet to hear your answer as to why 220 out of 240 suddenly got a nasty bug.

PN33

MR BORENSTEIN: I would also like to put on notice that we haven't received any evidence before today and Mr Dixon - - -

PN34

THE COMMISSIONER: It is coming, Mr Borenstein.

PN35

MR BORENSTEIN: No, I am just saying it is - we have had no chance to actually see any evidence so it is going to be very hard for us to provide a response to the particular allegations, if there are any. I don't know, whatever Mr Dixon has. I put the Commission on notice.

PN36

THE COMMISSIONER: Well, I think he is going to say at some point this morning that there was some form of a conspiracy involved in a general sense in that the people acted in concert and they possibly were given some indication from your office that it would be a good idea for them all to call in sick. Now, you will have a chance later on to say whether you accept that or deny it, or whatever.

PN37

MR BORENSTEIN: I put on notice that we haven't been provided with any material that has actually set out what facts they rely on for the section 166A notice.

PN38

THE COMMISSIONER: Sure, sure. The regrettable thing about today is we are here talking about this rather than you two sitting down and trying to work our the differences between you before July 14. That is the real problem. Mr Dixon?

PN39

MR DIXON: Commissioner, if that is regarded as a farce that I tender something which we don't believe is genuine, we think this whole thing is farcical. I mean, surely the ETU does not believe that the people of Victoria and the company in this Commission are fooled into thinking that 220 people are genuinely sick altogether on a day with a background of industrial action which has been taking place. I mean, it is just a nonsense and if that card highlights it then I am pleased about it, because it is farcical, so let us go to it.

PN40

And there is no need to provide evidence. I am here to provide a submission on a 166A application and we think this is conduct which is in relation to an industrial dispute and that is what we will endeavour to show. Now, I understand the conduct has ceased.

PN41

THE COMMISSIONER: Now, Mr Dixon, you have asserted that 220 out of 240 took leave. Do you have anything - Mr Borenstein has already indicated that he hasn't seen any evidence of that. Perhaps you are able to provide him with some.

PN42

MR DIXON: We would probably like to provide him with evidence, probably weeks in advance, maybe even days, but it only took place yesterday, Commissioner, so it is a bit hard and this is across Victoria. So we do tender it. I tender a list of people who have reported into various areas and down the left side are their names, down the middle are their departments, there is the job title and then there is in/out meaning absence, out is absent. And as far as - we haven't been able to, in the time, to gather the evidence, Commissioner, to tell you whether they were all notified - illness - because our - what I can tell you from the table that in some areas three out of 31 rang in and complied with the sick leave procedure.

PN43

So three out of 30 may be looked at which I will come to regarding illness and 27 just didn't turn up for work so they will lose a days pay. Now, a large number of people called in sick, or their partners were sick. All areas of TXU were affected including Lilydale, South Morang, Beaconsfield, all depots in the east and all depots in the north. Now, it is a bit hard for Mr Borenstein to stand here and say on behalf of the ETU, who he appears for and is part of, that he doesn't know about this when the state secretary is on the radio and in the newspapers talking about the number of people who have had that very illness, lineitis, I think Mr Mighell calls it. And he was asked on a radio transcript which took place at 7.50 this morning - - -

PN44

MR BORENSTEIN: Do you have a copy

PN45

MR DIXON: No, I haven't but I am reading it. It says - - -

PN46

MR BORENSTEIN: Commissioner, I haven't seen this document.

PN47

THE COMMISSIONER: Mr Borenstein - - -

PN48

MR DIXON: There is no need for prior notice to be given on these things. These are transcripts that Mr Mighell was part of. If there is going to be a challenge to them I will provide them.

PN49

THE COMMISSIONER: Mr Borenstein, I am sure Mr Dixon, once he reads the quote into transcript, will give you a look at the quote.

PN50

MR DIXON: Certainly.

PN51

MR BORENSTEIN: I thought the usual process was that I could have a read before he actually puts it in transcript and disclosed it to the Commission. There are some rules of natural justice in the Commission still whether it be a - - -

PN52

THE COMMISSIONER: Mr Borenstein, I am quite happy for you, after Mr Dixon reads it into transcript - if you read it and want to dispute part of it, I am happy for you to get to your feet and make an argument as to why it shouldn't be taken on face value.

PN53

MR BORENSTEIN: I would just like to have a read of it. Maybe we could have a five minute adjournment.

PN54

THE COMMISSIONER: You will read it, Mr Borenstein.

PN55

MR DIXON: Thank you, Commissioner. I think the usual approach from the Commission is that you will give it the weight it deserves after hearing all the parties and I am quite happy with that because we - all I am making the point is, it is really interesting to hear the ETU to come and say they don't know what we are complaining about when the state secretary is being interviewed yesterday and today - and we only got this shortly - some time ago - when he says - Mr Mighell says that the action of 200 people being ill is a bit of a surprise. But Mr Mighell said we organised industrial action and you know, of course, we are in control of the process, at least, how it works in getting endorsement from our members.

PN56

And he was asked what affect did it have on people who required the power workers yesterday and Mr Mighell said, all the emergency stuff where you had any power outages and that sort of stuff, as ..... the guys were, they made sure there was enough of them to do that sort of work. And he went on saying that the issues about trying to create - really trying to create apprentices - that TXU don't employ young people. Well, I am not sure how 229 coincidental illnesses is supposed to suddenly turn over to be a campaign to increase apprenticeships, but that is what the state secretary says and that is fair enough.

PN57

Now, I am more than happy to pass that across to Mr Borenstein to give him time to read it. Because we believe it is conduct which is under 166A and we believe the public does not support it. I don't think they would be at all sending cards saying, "Please get well soon." The Minister - Victorian Energies and Resources Minister who allegedly speaks for the public at times, was asked in the ABC radio news, 24 June in an interview, which was yesterday at 3 pm, he was asked and says that TXU was reviewing its maintenance schedules after more than 200 workers called in sick or didn't turn up for work.

PN58

And Mr Theophanous said it is quite clearly a try-on. You don't get 200 people suddenly become sick on one day, it is a try-on, it is an attempt to get round the legitimate power of the Industrial Relations Commission and their desires. It is a guerilla tactic and we don't think it is appropriate. Now, that is a - that is the Minister speaking for the people. It - - -

PN59

MR BORENSTEIN: Commissioner, I have to object again. I have to object. I don't understand what relevance the opinion of Mr Theophanous has to a section 166a certificate.

PN60

THE COMMISSIONER: Little, I think, Mr Borenstein, but - - -

PN61

MR BORENSTEIN: It is not appropriate for Mr Dixon to - - -

PN62

MR DIXON: We will come to it.

PN63

MR BORENSTEIN: - - - be using these things.

PN64

MR DIXON: We will come to it when I get a chance to make submissions, Commissioner.

PN65

MR BORENSTEIN: Well, how does it come - you relate to which section it comes to because it is just not relevant.

PN66

THE COMMISSIONER: I think it is relevant, Mr Borenstein, as to the opinion of the Minister in charge of the energy industry in Victoria who makes a public comment about actions of your members; for Mr Dixon to relate that comment to the Commission. The weight I give to it is another matter. I have agreed with you that I don't think it is going to carry much weight but I am not prepared to say to Mr Dixon that it is irrelevant.

PN67

MR BORENSTEIN: I would just like to formally - - -

PN68

THE COMMISSIONER: The man - the individual concerned has got ministerial responsibility for the energy industry in this state.

PN69

MR BORENSTEIN: Commissioner, I would just like to note my objection to him saying that and I reserve my rights in respect of that.

PN70

THE COMMISSIONER: Certainly.

PN71

MR DIXON: Well, let me seek to tell you how it is put, Commissioner and I don't object - or take umbrage to anything that has been said by you or if Mr Borenstein - this comes down to a simple matter, as we say, whether this is people who are genuinely sick or whether this is conduct related to an industrial dispute and that is a matter of credibility and that is what this goes to with these things. It comes down to whether you believe if this is an industrial dispute and by the ETU, then it is unprotected industrial action and a 166A certificate should issue if that conduct doesn't cease within 72 hours.

PN72

And as I have indicated, Commissioner, it has ceased, they are back at work to some degree. We are placing on the record what we believe the conduct in the past 24 hours has been. Now, we anticipate that the ETU will say these people were genuinely sick or didn't turn to work for other reasons, their partners, carer's leave or just didn't turn up, they had the day off. We say it is industrial action. Now, in the test of credibility when you are deciding whether it is or isn't - and you may not have to make that decision on this occasion but you may have to at some later date if the conduct repeats.

PN73

We are saying it is interesting to note the view of the Minister charged with the responsibility, it is his view that this is a farce. It is a try-on, it is guerilla industrial action and we support that because that is what we say. So we allege that straight up, that is what we have to do, persuade the Commission that that is what this is. And we say again, it is stretching credibility to believe that 229 out of 250 get sick selectively - and we do not have the World Health Organisation running down to Victoria, saying you are in trouble, there is an outbreak of serious illness and disease throughout the community of regional Victoria. It is only 229 selective persons.

PN74

THE COMMISSIONER: But you are also saying, Mr Dixon, that of the 220-odd individuals only a small proportion actually reported in sick and - - -

PN75

MR DIXON: Yes, only a very small proportion, Commissioner, actually rang in and said, I will not be in for this reason or that.

PN76

THE COMMISSIONER: Yes and so the others didn't even try and run the argument that they were sick, they simply didn't turn up.

PN77

MR DIXON: That is true, that is true, they were absent. They just didn't notify which is an unusual procedure. Generally when people are sick, they notify. The large numbers of them did not do so. Let us come down then to where we are, to take the Minister's words, that we think this is action in contravention of what the Industrial Relations Commission desires, ie, aims for. And we think that was expressed pretty clearly in the decision of the Commission as presently constituted - in your decision - and I must admit I didn't bring copies because I thought we would all be well aware of it, of 9 June when you suspended the bargaining periods, which we say the industrial dispute to which this action relates.

PN78

This is conduct relating to an industrial dispute which has been before this Commission now since the notification of a bargaining period by the ETU operative from 10 February earlier this year. And in that, the Commission's desire, in our view, is expressed in your conclusion which I won't take you to in detail because I don't think it needs to be said and it is labouring the obvious, that the bargaining periods which were instituted by the ETU would be suspended for six weeks from 12 midday on Monday 7 June. In other words, it was anticipated, we say, by the Commission that there would be no industrial action.

PN79

The orders would include a declaration there would not be any new bargaining periods set out and the parties were encouraged to use the conciliation services with the Commission. That is what we think the aims are. We think - against the Commission's aims which we think have been thwarted by this industrial conduct, if you weigh up 220 people of the ETU working for this company only going away from work for one reason or another and if the ETU seriously believe that anyone would give that credibility that this is some sort of outbreak of illness, beyond being slightly light-hearted and humorous as Mr Mighell has been and as I started out being, then they are stretching credibility beyond anything anyone has seen before.

PN80

To repeat the history again shortly, eight months of negotiations, 18 direct meetings between the companies, two with the Victorian Government and 18 days of hearings in the Industrial Relations Commission. The most recent hearings since your decision of 7 June; there have been three meetings with the ETU by the company and a further hearing before - sorry, two - and a further hearing before Senior Deputy President Lacy in a compulsory conference, none of which reached agreement. So matters are still outstanding on key issues for the new certified agreement of 2004.

PN81

I urge you that that background and that environment means you cannot say that this is coincidental sickness or injury. Now, we say that that will be conduct which may soon, if it continues to be repeated again, be the subject of a 166A certificate. We appreciate you will not get it today. We say the conduct has ceased. We are prepared to say that; they are back at work as we understand it, except for those who are genuinely sick.

PN82

THE COMMISSIONER: Yes.

PN83

MR DIXON: And the problem with those people, of course, is that the genuinely sick will now be regarded as ETU sickies. You may not take a sickie any more, you might just do an ETU and those people will have their certificates challenged because this sort of behaviour, industrial action, camouflaged, or attempted to be camouflaged as a sickie is just going to bring genuine sickness into disrepute. So we deal, Commissioner - having put that on the record we will deal with the genuine illness in the ordinary way. Each of the people who have not notified of a sickness or a reason for being absent are absent from work without cause and, therefore, will lose a day's pay.

PN84

Of the people who say that they are sick, if people claim to be, they are being reminded that under the EEEE Award, which binds this union and this company, an employee may be required to furnish a satisfactory certificate in respect of any or all leave absences should the employer so decide, 18.2.2.5. This employer has decided that they should furnish a satisfactory certificate because we doubt whether, in fact, they are genuine. In fact, to refer to the interview done by Mr Mighell he indicates that many may not have gone to medical certificate, they may have simply rung in. So 18.2.2.5 says that they may be required to furnish a certificate. That refers to a certificate, not a statutory declaration and they will be asked to do that.

PN85

Commissioner, as I have indicated, we can take the matter no further today. We are grateful for you listing this matter at short notice in case the matter was going to develop further. We do say that this is industrial action and conduct which a certificate would properly order and on the balance of credibility that surely must be the case. If the Commission pleases.

PN86

THE COMMISSIONER: Thank you, Mr Dixon. Well, Mr Borenstein, you have heard the submissions of Mr Dixon and you have - I will record your list of employees, Mr Dixon, as TXU1

PN87

MR DIXON: Grateful.

EXHIBIT #TXU1 LIST OF EMPLOYEES

PN88

THE COMMISSIONER: Now, Mr Borenstein, it stretches the credibility for anyone to argue that 220-odd, maybe 210, maybe 208, whatever, out of 230, 240, all either ring in on the one day or don't turn up for work. Now, I am, of course, going to sit here and listen to any argument you might have as to the fact that they may have been genuinely sick, but you have got the job ahead of you, right.

PN89

MR BORENSTEIN: Thank you, Commissioner. Can I firstly say that I think what Mr Dixon says is they are not actually pushing for the 166A certificate today.

PN90

THE COMMISSIONER: Not today, Mr Borenstein, but he is saying if it happens again or anything like this happens again, any other bright idea that somebody has as to what can be done to mess up TXU, he will be back here asking for a certificate and I am telling you now that it will be very difficult for anyone that hears the matter not to give him a certificate.

PN91

MR BORENSTEIN: Well, I accept that, Commissioner, and - - -

PN92

THE COMMISSIONER: So I think the ETU would be well advised to apply its industriousness and its intelligence to sitting down with TXU and

PN93

getting on with reaching an agreement if it is possible, because everybody is running out of time and both parties need to see what is achievable in terms of reaching an agreement, not put new demands on the table, not make a new demand one day from what you made yesterday and see what can be done.

PN94

MR BORENSTEIN: I agree, Commissioner. I agree. If the certificate is not being sought after today I don't want to waste the Commission's time and - - -

PN95

THE COMMISSIONER: Do you want to make an argument, Mr Borenstein, that they just misunderstood, they thought it might have been Saturday rather than Thursday or something?

PN96

MR BORENSTEIN: I can say, Commissioner, that we dispute the contentions put by TXU, but to go further than that I don't think it is required for today's proceedings.

PN97

THE COMMISSIONER: Mr Borenstein, I am going to ask you the direct question. Was any of this promoted or suggested from your office?

PN98

MR BORENSTEIN: My instructions is it wasn't.

PN99

THE COMMISSIONER: Well, it better not be because if that is found out in the future it will blow the credibility of the union - give it another little cut, there is no doubt about that. Okay. So, Mr Borenstein, what you are saying basically is TXU has indicated its strong concern about the actions that were taken yesterday. They are not applying today for a certificate under section 166A. They have said if this happens again they will and I can tell you if it does happen again, or anything like it happens again, it will be very difficult not to issue a certificate. So I would strongly encourage that the people who sit around and think about these things to apply their minds in other directions.

PN100

MR BORENSTEIN: Thank you, Commissioner.

PN101

THE COMMISSIONER: All right. Mr Dixon, anything else to say?

PN102

MR DIXON: Just briefly, Commissioner. I didn't raise, and it has been my instructions that we do have concerns regarding weekend work which despite the directions of the Commission in the more substantive action, weekend work is mysteriously disappearing. We haven't raised that today but I do mention it. Four jobs have been cancelled because people are not making themselves available for weekend work. We are looking at that carefully and monitoring it and just to make it quite clear, which I think you have, the 166A(7) talks about other conduct which may be related and so we are watching those others.

PN103

We would like those people who are being inconvenienced in the public to work, as you have directed, so that during the substantive matter to at least parties continue to negotiate to reach a certified agreement.

PN104

THE COMMISSIONER: Good. Thanks, Mr Dixon. Now, I will adjourn this matter but before we go I will just go off the record for a moment if we could, please.

ADJOURNED INDEFINITELY [11.41am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #TXU1 LIST OF EMPLOYEES PN88