C2004/4429, Transcript of Proceedings [2004] AIRCTrans 3003 (2 August 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 7982
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT WATSON

C2004/4429

CARLTON AND UNITED BREWERIES
LIMITED

and

CONSTRUCTION, FORESTRY, MINING
AND ENERGY UNION

Notification pursuant to section 99 of the
Act of an industrial dispute re appropriate
workplace agreement to apply to two employees
at the Abbotsford Brewery Site

MELBOURNE

9.02 AM, FRIDAY, 23 JULY 2004

Continued from 2.7.04

PN55

THE SENIOR DEPUTY PRESIDENT: Is there any change in appearance or additional appearances?

PN56

MR B. REDFORD: I appear for the LHMU in this matter.

PN57

THE SENIOR DEPUTY PRESIDENT: Yes, thank you, Mr Redford. Yes. I am sorry.

PN58

MR M. WASHINGTON: I now appear for the Construction, Forestry, Mining and Energy Union.

PN59

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Washington. Yes, the matter has been re-listed for report back. I wonder if anyone is able to update me on what is occurring, in particular in respect to the broader meetings between unions that I recommended be organised. Mr Redford.

PN60

MR REDFORD: Your Honour, what I can say to you is that the LHMU is aware that there has been a proposal for a meeting between the - what are called - what are being referred to as the CUB unions - to be convened by Trades Hall on I think it is 30 July.

PN61

THE SENIOR DEPUTY PRESIDENT: Good, yes.

PN62

MR REDFORD: I think your Honour is aware though that the LHMU comes to you today raising another issue that we are concerned about.

PN63

THE SENIOR DEPUTY PRESIDENT: Yes.

PN64

MR REDFORD: But in relation to the meeting as we understand it that is what is happening.

PN65

THE SENIOR DEPUTY PRESIDENT: Yes, very well. What is the issue of concern to the LHMU?

PN66

MR REDFORD: Well, your Honour has something of a flavour of the issue, I believe, as a result of a letter that I faxed to your chambers yesterday.

PN67

THE SENIOR DEPUTY PRESIDENT: Yes.

PN68

MR REDFORD: And I am in your Honour's hands about that. My proposal was to go through that issue in just a touch more detail if it pleases the Commission.

PN69

THE SENIOR DEPUTY PRESIDENT: Yes.

PN70

MR REDFORD: The LHMU seeks to address you, your Honour, on the directions the Commission has made arising from proceedings on 2 July. These proceedings arose from a dispute notified by Carlton and United Beverages in respect to the CFMEU about the application or operation of the - what has been referred to as the FEDFA Agreement - FEDFA Certified Agreement, your Honour, to two employees. In relation to the application of that agreement the Commission made a recommendation and the recommendation was this:

PN71

Without prejudice to the CFMEU, any of the other CUB unions or CUB in relation to the broader issues, and noting the terms of the 1996 ACTU decision re membership coverage between LHMU and CFMEU at CUB's Abbotsford and Richmond warehouses, I recommend that pending the resolution of the broader issues that CUB apply the terms of the CUB Victoria CFMEU FEDFA Enterprise Development Agreement 2003 to those CFMEU members identified in the agreed list contained on file in a sealed envelope.

PN72

Your Honour, the LHMU has a number of concerns with this recommendation. At a base level, your Honour, we have a concern that it is unfortunate that the Commission was persuaded to make a recommendation like this without the benefit of the LHMUs perspective on the matter, given that we are the union with whom the company has an agreement under which these two individuals were being paid at that point and, of course, your Honour - - -

PN73

THE SENIOR DEPUTY PRESIDENT: Presumably from what you are saying you are appraised of the operation of the recommendation. The recommendation itself refers to persons on an agreed list. I gather you have some knowledge of what that means in practical terms.

PN74

MR REDFORD: Is your Honour referring to who those two persons are?

PN75

THE SENIOR DEPUTY PRESIDENT: Yes.

PN76

MR REDFORD: Yes.

PN77

THE SENIOR DEPUTY PRESIDENT: Yes, very well.

PN78

MR REDFORD: Well, yes, we do.

PN79

THE SENIOR DEPUTY PRESIDENT: Very well.

PN80

MR REDFORD: Our concern in terms of not being heard, your Honour, is obviously because we disagree with the CFMEUs submission that these two individuals are covered by the FEDFA Agreement and what we are seeking, your Honour, is that the Commission consider withdrawing that recommendation. And the reason - - -

PN81

THE SENIOR DEPUTY PRESIDENT: The recommendation was made, Mr Redford, essentially as an interim measure to allow some stability pending the resolution of the broader issues between unions and ultimately the CUB, hopefully by agreement, if not by some determination of the Commission, whether that involves demarcation orders or decision arising out of interpretation of the various agreements, but as I said, hopefully as a result of some agreement between the unions and CUB.

PN82

It is intended to be an interim holding position, if you like, and I was very much conscious that there were other unions going beyond the LHMWU involved and that is why it was put on that basis and the emphasis for the recommendation as a whole is really on providing the unions an opportunity to try and seek some resolution of the issues between them and then with CUB, or alternatively, as I said, the termination of the broader issues by the Commission in some other form.

PN83

MR REDFORD: Yes, and I won't - - -

PN84

THE SENIOR DEPUTY PRESIDENT: Does the LHMU really have any difficulty with that process of trying to bring some finality to the issues in a broader sense, with that particular recommendation really being an interim measure to facilitate that process?

PN85

MR REDFORD: Your Honour, I can't stress enough that we do. We do because we say that even if it is an interim measure what it does is suggest that these two employees are covered by an agreement that in our respectful submission clearly does not cover them, even if it is an interim measure.

PN86

THE SENIOR DEPUTY PRESIDENT: Well, it doesn't suggest that. It is a recommendation made without prejudice to the position of the CFMEU or any other union as to the final disposition of the matters between, in the first instance, the unions, and the CUB to some extent is a victim of the issues between the unions rather than being directly in dispute with particular unions.

PN87

MR REDFORD: Well, it may be made on a without prejudice basis, your Honour, but as your Honour is aware I am informed that it has been followed and I would have thought the Commission would expect it to be followed.

PN88

THE SENIOR DEPUTY PRESIDENT: Well, that was intended, as I said, to give some stability whilst the important part of the recommendation, the broader issues are dealt with and in that regard I have provided an opportunity for the Trade Union Movement processes to be tried in the first instance. The only alternative is to directly go to issues of interpretation of the agreement and demarcation orders without providing that opportunity to the unions.

PN89

MR REDFORD: Or another - - -

PN90

THE SENIOR DEPUTY PRESIDENT: Is that a preferable course from the LHMUs position?

PN91

MR REDFORD: The LHMUs preferred course, your Honour, is for the recommendation to be withdrawn for the status quo to prevail and the - and saying that, the LHMU commits itself to a process to discuss these broader issues. We are happy to do it. Could I say one other thing on that though, your Honour. In the LHMUs view what this recommendation does is in fact make it more difficult for us to resolve those broader issues. We suspect that the CFMEU - - -

PN92

THE SENIOR DEPUTY PRESIDENT: Why is that? It is put in a without prejudice position. I would expect there to be open discussion and resolution of the issues.

PN93

MR REDFORD: We suspect that the CFMEU in persuading you to make that recommendation has on this issue got what it wanted and may be less prepared to sit around a table with us and deal with us in an attempt to resolve these broader issues in a different way, because what it has achieved, your Honour, is the transfer or alteration of the terms and conditions of two employees who work in an area of the brewery that is clearly covered by our agreement by way of the proceedings in the Commission.

PN94

Again, what we say, your Honour, is that that is something that may make it more difficult for the parties to come to some resolution about things, albeit that I don't resile, your Honour, from my submission that - - -

PN95

THE SENIOR DEPUTY PRESIDENT: Well, I doubt whether that is the case because the issues are open for the parties to resolve and if not they will be resolved for them.

PN96

MR REDFORD: Well, in a sense, your Honour, the immediate issue from the CFMEUs position has been resolved and what I am - - -

PN97

THE SENIOR DEPUTY PRESIDENT: In terms of an interim position to - whilst the process of achieving some ultimate resolution of the issues is conducted and presumably completed.

PN98

MR REDFORD: Well, even though your Honour describes it as an interim position, it is an interim position for as long a time as it takes for the broader issue to be resolved and the broader issue won't be resolved unless the parties agree. I put this - - -

PN99

THE SENIOR DEPUTY PRESIDENT: No, that is not correct, Mr Redford. If the parties don't agree there are processes by which it can be determined within the Commission, and as I said, I have taken the approach of allowing the internal processes of the Trade Union Movement to have some operation. It is preferable if matters can be resolved in that way but if not they will be resolved.

PN100

MR REDFORD: I am pressing the point, your Honour, but what the Commission has done is alter the status quo in an attempt to facilitate that process and what the LHMU is saying is that that is an inappropriate way, both as a matter of law and also as a matter of process, to move this issue forward. We are saying to you, your Honour, that we - - -

PN101

THE SENIOR DEPUTY PRESIDENT: It was put by way of a recommendation and I don't think any issues of law in terms of that arise.

PN102

MR REDFORD: Your Honour, if your recommendation is followed, as I am sure you expect it to be - - -

PN103

THE SENIOR DEPUTY PRESIDENT: Yes.

PN104

MR REDFORD: - - - then it will result in an alteration of the legal position of these two employees and, with respect, what I am putting to you is that that is a matter of law.

PN105

THE SENIOR DEPUTY PRESIDENT: What are you saying, Mr Weissman[sic] do you want us to go directly to have those matters of law determined? I mean that seems to me to be the only alternative, otherwise CUB is put in an untenable position of two unions with alternate positions. One can put in an interim position presumably either way but that is done entirely without prejudice so that the matters can be ultimately and finally determined.

PN106

MR REDFORD: Could I say this to your Honour. The company's position that it has put to you on transcript and that might I say it has put to the LHMU in writing - - -

PN107

THE SENIOR DEPUTY PRESIDENT: Yes.

PN108

MR REDFORD: - - - is that the appropriate coverage for these two employees is the LHMU Agreement. So the company's position has been and currently is that these two employees are covered by that LHMU Agreement and what I am putting to you is that it is inappropriate to alter that - - -

PN109

THE SENIOR DEPUTY PRESIDENT: Well, I am getting the impression that the position of the parties - the union parties is so entrenched and intractable that there is probably no potential for the resolution of the matters between them, is it best that with programs and demarcation proceedings and interpretation proceedings and have the matters fully and properly determined? If the position is that the parties are going to - the two immediate union parties are going to take a position of well, we are going to insist on our position as being maintained in an interim without position - without prejudice manner whilst we go through a process of trying to resolve the matters, it would seem to suggest little prospect of the matters being resolved between the parties.

PN110

I mean I am trying to be practical about this, Mr Redford. It is without prejudice and it is an interim position and it is directed to allowing the union parties in the first instance to try and resolve matters between them and then - and if not, for the matter to be determined in some orderly way.

PN111

MR REDFORD: I appreciate your Honour is being practical. Could I say though in relation to demarcation, your Honour, that is not what I am making submissions to you about. What I am making submissions to you about is about the - - -

PN112

THE SENIOR DEPUTY PRESIDENT: Well, that seems to underlie the issues in my view. I think there is a reasonable basis of finding there is a demarcation dispute.

PN113

MR REDFORD: I am doing my very best, your Honour, to make it clear that from the LHMUs perspective the issues of demarcation and the issues of agreement coverage are separate issues and you have made a recommendation about agreement coverage and that is what we are concerned about. We are perfectly prepared to commit to a process of resolving the demarcation issues but you have made a recommendation about agreement coverage. That recommendation either has been followed or is going to be followed - - -

PN114

THE SENIOR DEPUTY PRESIDENT: Yes.

PN115

MR REDFORD: - - - to the alteration of the terms and conditions of employment of those two employees and I am in a position, if it would assist your Honour, to take you through why we say that recommendation should be withdrawn, based on the application of the awards in the agreements, but what I am saying to your Honour that it is that recommendation that we are putting submissions to you about today. And might I say it is that issue that was the subject of the notification of this dispute.

PN116

THE SENIOR DEPUTY PRESIDENT: Yes, I am aware of that but it has become apparent to me that there is a demarcation issue underlying and associated with the coverage issue.

PN117

MR REDFORD: And I appreciate your Honour is concerned about that issue and I think the parties appreciate your Honour's attempt to assist us to resolve that issue, but again, your Honour, what the LHMU is putting to you is that it is the other recommendation - the recommendation about agreement coverage that we are particularly concerned about.

PN118

THE SENIOR DEPUTY PRESIDENT: Yes, I understand that.

PN119

MR REDFORD: As I said, your Honour, I can, if it would assist you, take you through why the LHMU says those two employees are covered by the LHMU Agreement and not the FEDFA Agreement.

PN120

THE SENIOR DEPUTY PRESIDENT: Well, that - - -

PN121

MR REDFORD: The purpose of such submissions would be to request that the recommendation be withdrawn.

PN122

THE SENIOR DEPUTY PRESIDENT: Well, that really goes to a determination of a dispute involving an agreement and its application. If you want to go formally down that path immediately we can do that. When I say immediately I mean some time in August.

PN123

MR REDFORD: Could I say to you though, your Honour, that you have, albeit of an interim basis, already done that. You have already determined a dispute - - -

PN124

THE SENIOR DEPUTY PRESIDENT: No, I haven't determined that, I have recommended it.

PN125

MR REDFORD: Well, you have made a recommendation. I take your point but in any event that recommendation, as I have said to you, on my instructions has been followed and if it hasn't been followed is about to be followed. It is a matter of immediate concern, your Honour.

PN126

THE SENIOR DEPUTY PRESIDENT: Yes, very well. Anything else at this point?

PN127

MR REDFORD: Well, other than taking you through those more detailed issues, no, your Honour.

PN128

THE SENIOR DEPUTY PRESIDENT: No. Well, you won't need to do that. If it gets to the point of an actual determination in respect of the application of the agreement, that will occur by full submission and hearing at some later time.

PN129

MR REDFORD: Do I take your Honour to mean that you have accepted my - - -

PN130

THE SENIOR DEPUTY PRESIDENT: No, no, you shouldn't take that. What I intend to do is hear from Mr Richardson, Mr Washington and if necessary also adjourn into conference to discuss these matters.

PN131

MR REDFORD: As your Honour pleases.

PN132

THE SENIOR DEPUTY PRESIDENT: Who would like to - Mr Washington.

PN133

MR WASHINGTON: From our point of view, your Honour, we say your recommendation was without prejudice. We don't see the difficulty with it. These two individuals have been somewhat caught up in an issue and we covered this question extensively before you on the last occasion. The LHMU had an opportunity to intervene at that point; they chose not to.

PN134

THE SENIOR DEPUTY PRESIDENT: Was it made aware of the proceedings?

PN135

MR WASHINGTON: In the same manner I was made aware.

PN136

THE SENIOR DEPUTY PRESIDENT: Yes. No, they weren't made aware of - - -

PN137

MR WASHINGTON: Weren't they. Well, I don't think there is any secret, but in any event the recommendation is without prejudice. We don't believe that it prejudices the LHMUs position. We are more than happy to have an internal process within the Victorian Trades Hall. As been reported, that meeting is now programmed. I expect we will be able to make headway in due course. I don't believe it entrenches our position at all.

PN138

Indeed, it was us that suggested it to your good self, that that form part of your recommendation and, indeed, that arises out of discussion with the State Secretary of the LHMU. So quite frankly we say the recommendation ought to stand. It is proper in the circumstances and it is without prejudice to anybody's position. If it please the Commission.

PN139

THE SENIOR DEPUTY PRESIDENT: Yes. Mr Richardson.

PN140

MR RICHARDSON: Yes, thank you, your Honour. Your Honour, in essence the fact up to this point is that the company notified a dispute to the Commission, the Commission heard submissions from both parties and in conference took on board the respective positions and issues raised by the parties and the recommendation was issued in relation to that and a process was set forward from there on a without prejudice basis. Now, we accepted the recommendation in the context of resolving the specific dispute at that point in time. We foreshadowed that there could be and more likely would be issues arising from the future, as we foreshadowed in the context of our submissions, that this is in essence a broader issue than just relating to those two specific employees.

PN141

It is not an issue I don't think any party hadn't foreseen could arise over a period of time. It just happened to be in this instance that it had arisen. For our part we are not seeking that the recommendation be withdrawn insofar as we have expressed our concerns. We have expressed our position in relation to which award and which agreement should be applicable to, not only those employees but also other employees, but we accepted the recommendation on the understanding that a process was being put forward for resolving the issues on a broader level.

PN142

And I would say we had some subsequent discussions with both parties for that matter but in particular with the LHMU following the hearing on 2 July and it is true, the union expressed its concerns over the proceedings and the recommendation that was issued by yourself and at the same time we reiterated our position that whilst we understood their situation, and we had our own concerns, we were prepared to accept the recommendation in the context of the dispute matter.

PN143

But we understand at the same time that the Commission was seeking to put forward a process for dealing with the broader issues in relation to the operation of the agreements and it was our understanding that the unions were wanting to have those discussions amongst themselves to see if they can come up with some form of resolution and pending the outcome of that that we may or may not be back before yourself or within the Commission to determine any outstanding issues.

PN144

These are the very matters that we raised last year in the context of our discussions with the unions - virtually this time last year - and as I indicated in our submissions on the 2nd, we put forward a suggested process for dealing with the issues and the operation of the agreement and the unions at that point in time said that they wanted to have those discussions in-house, if I could put it that way, between themselves. The simple fact is they haven't been able to get to a resolution at this point.

PN145

I am obviously hopeful - or the company is hopeful that some progress could be made in relation to that at their meeting scheduled for the 30th, but having regard to some of the comments this morning I am probably less optimistic about that at this point, but perhaps being the eternal optimist, hopeful at the same time that some progress can be made in relation to that. Other than that, your Honour, I have nothing further to say at this point.

PN146

THE SENIOR DEPUTY PRESIDENT: Anything further before I adjourn into conference, Mr Redford.

PN147

MR REDFORD: Your Honour, I am now very much pressing the point. I just want to say one more thing if I may. It arises out of the submissions that have been put to you by the CFMEU and the company that have related specifically to what I think we are now starting to refer to as the demarcation issues and the meeting on 30 July. Could I say this to you, your Honour. That meeting will not result in the variation of the FEDFA Agreement or the variation of the LHMU Agreement, nor will it result in an alteration of the work tasks performed by those two employees and yet as a result of your Honour's recommendation those employees will continue to be paid under the FEDFA Agreement, and that from our perspective, your Honour, is inappropriate.

PN148

THE SENIOR DEPUTY PRESIDENT: Well, at this point in time they are not, they are being paid rates in excess of the LHMWU. There is no breach of the LHWU Agreement.

PN149

MR REDFORD: In our view it is a breach of the LHMU Agreement, your Honour, and in the event that - - -

PN150

THE SENIOR DEPUTY PRESIDENT: Why is that? Is the company not adhering to any condition of that agreement in respect of these employees?

PN151

MR REDFORD: No, you have got me, your Honour. It may not be an underpayment or a breach in that sense, but in the event that that situation prevails and the LHMU rates of pay - which they will do - increase - - -

PN152

THE SENIOR DEPUTY PRESIDENT: Yes, I am aware of that at some later time.

PN153

MR REDFORD: - - - it will be a breach. Perhaps if those employees continue to be paid under the FEDFA Agreement and those terms and conditions are in excess of the LHMU terms and conditions, there is not a typical breach, but as a matter of form it is inappropriate, your Honour, and it arises, as I say, with the greatest of respect, because of the Commission's recommendation.

PN154

THE SENIOR DEPUTY PRESIDENT: Well, it arises at a practical level. We are trying to secure some interim position without prejudice to anyone whilst the issues are resolved.

PN155

MR REDFORD: But as I said, your Honour, that process of resolution will not result in a variation of the agreements or in an alteration of the work tasks performed by the employees and as such those two things won't match and those employees will continue to have applied to them an agreement that does not apply to them as a matter of law, your Honour.

PN156

THE SENIOR DEPUTY PRESIDENT: Very well. I will adjourn into conference.

NO FURTHER PROCEEDINGS RECORDED