C2004/4251, Transcript of Proceedings [2004] AIRCTrans 2656 (14 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 10959

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER MANSFIELD

C2004/4251

APPLICATION FOR AN ORDER TO STOP
OR PREVENT INDUSTRIAL ACTION

Application under section 127(2) of the Act
by Powercor Australia Limited and Another for
an order to stop or prevent industrial action
in relation to planned overtime

MELBOURNE

12.03 PM, FRIDAY, 2 JULY 2004

PN1

MR N. RUSKIN: I seek leave to appear on behalf of Powercor Australia and Citipower.

PN2

MR G. BORENSTEIN: I appear on behalf of the CEPU together with MR G. ARNETT.

PN3

THE COMMISSIONER: Thank you. Mr Ruskin, this is your application under section 127 of the Workplace Relations Act. It relates to a view of the Powercor company that members of the ETU are refusing to undertake overtime, and this is effectively industrial action which is in breach of a Commission decision.

PN4

MR RUSKIN: Yes, or words to that effect, yes.

PN5

THE COMMISSIONER: Or words to that effect, yes.

PN6

MR RUSKIN: Yes, Commissioner. Firstly, leave to appear is granted?

PN7

THE COMMISSIONER: Yes, I am sorry, I should have just clarified that. Mr Borenstein, any challenge to the leave to appeal?

PN8

MR BORENSTEIN: No obstruction.

PN9

THE COMMISSIONER: Thank you. Mr Ruskin.

PN10

MR RUSKIN: Thank you. Yes, this is an application to seek an order from the Commission to prevent industrial action which is occurring, and which is described in the application. The industrial action is the fact that planned overtime is not being performed, and has not been performed effectively since the bans were imposed by the union during the bargaining period on 10 February.

PN11

With the suspension of the bargaining period by your order of 4 June, overtime works programs planned overtime, work programs were put up around Victoria for staff to perform overtime, planned overtime on weekends. Names were placed on those works programs, or on those rosters just after 4 June when your order was issued. Mysteriously a few days later all the names were removed.

PN12

THE COMMISSIONER: This means, Mr Ruskin, that individuals indicated that they were available for overtime?

PN13

MR RUSKIN: Yes, they were available for overtime, and then - - -

PN14

THE COMMISSIONER: They became unavailable.

PN15

MR RUSKIN: They became unavailable, and have since been unavailable. This has meant that planned overtime, which is particularly critical, given that there have been bans in place over planned overtime since February, has not been able to take place. There are, I understand, two exceptions to that which I can deal with, which were - one is for community reasons, and one because I understand the employees wanted the money: but I can bring some evidence on those things.

PN16

We say that this is a - I should say, the staff normally perform planned overtime by volunteering to do so when the works program goes up on the board, and they put their name down. That has been the practice for a very long period of time. Since the bans were lifted, no-one has come forward other than in the first few days to volunteer to perform this.

PN17

THE COMMISSIONER: Mr Ruskin, can I just stop you for a moment. I just to try and perhaps shorten this hearing a little, by turning to Mr Borenstein.

PN18

MR RUSKIN: Yes.

PN19

THE COMMISSIONER: Mr Borenstein, is it going to be challenged by the ETU that most, if not all of its members employed by Powercor are refusing to undertake overtime? Are you going to argue that point?

PN20

MR BORENSTEIN: It is our position that the employees are working reasonable overtime, although we don't have any figures.

PN21

THE COMMISSIONER: So you are going to argue that employees are available for overtime, and are working reasonable overtime?

PN22

MR BORENSTEIN: We say the employees are working in accordance with the award, which says that upon request they are to work reasonable overtime.

PN23

THE COMMISSIONER: And are you also going to say that there has been no action by the ETU, either by its delegates or by its officials to restrain its members who wish to work overtime?

PN24

MR BORENSTEIN: That is correct.

PN25

THE COMMISSIONER: Thank you, Mr Borenstein. Mr Ruskin, you know what is ahead of you now.

PN26

MR RUSKIN: Yes, that is fine.

PN27

THE COMMISSIONER: Okay. I thought perhaps the ETU would concede certain things, but it obviously is not going to.

PN28

MR RUSKIN: Yes. Well, there has been an outbreak of family responsibility among the employees of Citipower and Powercor since the order was lifted on 4 June, in that employees are not able to perform planned overtime which they had previously been willing to perform. In fact, before the bans were imposed there was a great effort on the part of people to do the planned overtime on the weekend.

PN29

This is a bit like the TXU 'flu that occurred last Thursday amongst some employees at TXU, and it is exactly the same thing. We say it is a campaign, a covert campaign by the CEPU to direct its members not to perform planned overtime, and to assert to their employer reasons why they cannot do the planned overtime, any reason, so long as it is not a reason that places any responsibility on the part of the CEPU, or suggest that it is a campaign of an industrial kind.

PN30

So I see that the task before us is to demonstrate that the unavailability of staff to perform overtime which they would otherwise volunteer to perform, and their refusal to perform overtime when they were directed yesterday is something we have to demonstrate as being industrial action. Whether we demonstrate that is industrial action by the employees or with the cooperation of the union, is another matter. But we have a witness who we are able to put in the witness box to provide some evidence about the fact that there is a strange coincidence between the unavailability of staff to perform overtime during a period of suspended bargaining period, and compared to the huge amount of planned overtime that was performed before this dispute began, and inferences can be drawn from that material.

PN31

So we are ready, willing and available to run a case. If the Commission wishes to attempt some means of conciliating, we would be open to that for a period of time.

PN32

THE COMMISSIONER: Good. Well, perhaps we might go down that track initially, Mr Ruskin, and spend perhaps 15 minutes to 30 minutes seeing if there is a basis to resolve this matter through conciliation.

PN33

MR RUSKIN: Thank you.

PN34

THE COMMISSIONER: Good, thank you. We will go off the record for a moment.

SHORT ADJOURNMENT [12.10pm]

RESUMED [1.04pm]

PN35

THE COMMISSIONER: Following discussions between representatives of Powercor, Citipower and the ETU, an agreed statement by ETU officers will be sent to members of the ETU in Powercor/Citipower. On the basis of that agreed statement the company is prepared to not proceed with its application. I will therefore adjourn this matter in a moment to take account of the agreement that has been reached.

PN36

I would say to the ETU though, that the test of this particular letter will be in regard to what happens in the future, and I expect that if a reasonable number of your members don't make themselves available for rostered overtime next week, we may well be back in this room next week with a further application by the company in regard to the 127 order. I think everybody understands that. Good. Any questions from either of the ETU or Powercor, Citipower? Good. This matter is adjourned.

ADJOURNED INDEFINITELY [1.05pm]