C2004/4509, Transcript of Proceedings [2004] AIRCTrans 3030 (4 August 2004)

AUSCRIPT PTY LTD
ABN 76 082 664 220

ADMINISTRATOR APPOINTED

Level 6, 114-120 Castlereagh St SYDNEY NSW 2000
PO Box A2405 SYDNEY SOUTH NSW 1235
Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS

O/N 12675
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER CARGILL

C2004/4509

FAIRFAX PRINTERS PTY LTD

and

AUTOMOTIVE, FOOD, METALS, ENGINEERING,
PRINTING AND KINDRED INDUSTRIES UNION
and ANOTHER

Notification pursuant to section 99 of the Act
of a dispute re negotiation of terms and conditions
of employment

SYDNEY

2.00 PM, TUESDAY, 20 JULY 2004

Continued from 30.6.04

PN21

THE COMMISSIONER: I have had your appearance previously, Mr Ball.

PN22

MR A. BALL: That's right, Commissioner.

PN23

THE COMMISSIONER: Did you need to change that today?

PN24

MR BALL: I don't, Commissioner. All I'd like to say is that I have with me MR S. SHIRVINGTON at the bar table. He's the General Manager of the company Fairfax Printers.

PN25

THE COMMISSIONER: Thank you.

PN26

MS K. FORD: I appear for the AMWU Printing Division. Also at the table I have with me MR J. AVERD who is the FOC for the metals of the AMWU; next is Mr J. LIAROPOULOS, a delegate from the ETU and MR T. WADE, FOC of the Print Division of the AMWU.

PN27

THE COMMISSIONER: I think you're also appearing on behalf of the CEPU today, aren't you, Ms Ford? I've had some correspondence indicating that they'd - - -

PN28

MS FORD: Yes, thank you, Commissioner, I haven't received that correspondence. However, I have been told by your associate that that's what I'm doing and that is fine with me.

PN29

THE COMMISSIONER: The correspondence says that they've authorised the AMWU to appear on their behalf as they couldn't have anyone here because of the short notice. Yes, Mr Ball, you've asked for this matter to be listed urgently I gather.

PN30

MS FORD: Excuse me, Commissioner, prior to us starting, I believe Mr Ball has to seek leave to appear and surprisingly I say with sarcasm we would be opposing that.

PN31

THE COMMISSIONER: That's all right because on the previous occasion no one else was here. Yes, Mr Ball?

PN32

MR BALL: That's right, Commissioner, I have appeared twice without any objection before. I seek leave today.

PN33

THE COMMISSIONER: Yes, but nobody else has been here before.

PN34

MR BALL: That's right, Commissioner. I seek leave today to appear.

PN35

THE COMMISSIONER: And perhaps you could put your grounds as to why you seek leave. You know you don't appear as of right.

PN36

MR BALL: Yes, Commissioner, on a couple of bases. Firstly, this matter has been as you indicated put on rather urgently and there has been a lack of time for anyone at the company to thoroughly prepare for today. Secondly, Commissioner, there are a couple of legal issues or legal technicalities that I do wish to raise during the submissions today regarding the nature of the intended industrial action and in particular whether or not it is in fact protected industrial action under sections 170ML and MP of the Workplace Relations Act. Given the fact that those issues will be traversed today, Commissioner, I would seek leave to appear in order to assist the Commission and the company in putting those views forward.

PN37

THE COMMISSIONER: This is a section 99 dispute, isn't it, Mr Ball?

PN38

MR BALL: Yes, it is, Commissioner.

PN39

THE COMMISSIONER: There might be arguments as to whether any of those issues are relevant in the context of a section 99 dispute but anyway maybe they can be dealt with in due course. Did you want to refer to any sections of the Act under which you're seeking leave?

PN40

MR BALL: Yes, Commissioner. If consent has been refused under section 42(3)(a) of the Act I'd be seeking to make those applications under section 42(3)(c) of the Act.

PN41

THE COMMISSIONER: What, on the basis that your client can only be adequately represented by yourself, is that it?

PN42

MR BALL: That's right, Commissioner, given as I said that there are two issues which although, as you say, this is a section 99 dispute the matters which will be traversed do go to two issues regarding the nature of the intended industrial action and may well indicate if the matter can't be adequately dealt with today where this issue may end up.

PN43

THE COMMISSIONER: Yes. Ms Ford, did you want to put anything?

PN44

MS FORD: Yes, with all due respect, Commissioner, we don't agree with any of those submissions. Firstly, it is a section 99 dispute as the Commissioner has pointed out. Mr Ball has got many representatives from the company here today who have been part of the negotiations to date. They are well aware of the issues that are outstanding and the issues that we do need to discuss. It's not necessary for a lawyer to be here to outline what their grievances are or the reason why they've asked for this section 99 dispute hearing today. Further, with respect to the legal issues this is not the forum to argue whether or not it's a legal industrial action. This is a forum to negotiate or try to work out a dispute between both the parties. Therefore we remain in our original position of requesting the Commission not to allow a solicitor on behalf of Fairfax to present their case for them. The general manager is quite adept at doing that. They are industrial issues. We are negotiating an EBA. We'd like to continue those negotiations without the input of their law firm. Thank you, Commissioner.

PN45

THE COMMISSIONER: Did you want to respond, Mr Ball?

PN46

MR BALL: Yes, Commissioner. The company's position is that it seeks the assistance of external representation today in order to try and assist the parties. These matters which will be raised are relevant and pertinent to the proceedings. They do need to be canvassed in a way where there can be little doubt as to what the company's position is. If that's not the case we are fearful that the overall negotiations may take a turn for the worse, Commissioner, and I do strongly suggest that in the interests of moving the negotiations forward that all issues are properly aired and canvassed and without the assistance of external representation today, Commissioner, I'd be fearful that that may not be the case. Commissioner, may I just have one moment? It's also the case that - I've just asked my friend whether she is a solicitor. I know the section of the Act regarding employee representatives of an organisation but it is the case that Ms Ford is a solicitor as well.

PN47

THE COMMISSIONER: Yes, I'm aware of that, Mr Ball.

PN48

MR BALL: There may be some unfair advantage done if both parties aren't represented by legal representation.

PN49

THE COMMISSIONER: The Act sets out in specific terms that you as a solicitor have to seek leave. Ms Ford who is appearing as an employee of the organisation doesn't need to seek leave. I'm aware of her professional standing. I'll give you leave to appear, Mr Ball, but may I say that my view is that I have a section 99 before me. I do not have some other type of matter where various fine legal points may need to be raised. I mean maybe depending upon the outcome of today maybe there might need to be such proceedings. I'd appreciate it if perhaps you could concentrate on the negotiations and the main issues. I'm not saying you can't raise those other issues but could you perhaps not get too carried away with the legalism. I suspect we're all here hoping to see if we can get a fruitful result rather than go down that track.

PN50

MR BALL: Certainly, Commissioner, and that's the intention. This is a notification under section 99 of the Workplace Relations Act notifying the Commission of the existence of an alleged industrial dispute between Fairfax Printers and the Australian Manufacturing Workers Union and the Communications Electrical and Plumbing Union. Commissioner, it arises out of negotiations that are currently taking place with respect to a new enterprise agreement at Fairfax's premises at 1 Worth Street, Chullora. The current certified agreement is the Fairfax Printers Enterprise Agreement 2001 and that came into force on 9 November 2001 and had a nominal expiry date of 24 February 2004. Commissioner, do you have a copy of that agreement?

PN51

THE COMMISSIONER: No, but as long as it's passed its nominal expiry date that's probably all I need to know for today, isn't it?

PN52

MR BALL: There are two clauses that may be of relevance for today's purposes, Commissioner.

PN53

THE COMMISSIONER: Well, if we need that I can go to that later but it's to do with negotiations that are presently - for a new agreement. The matter is to do with negotiations for the new agreement.

PN54

MR BALL: That's correct, Commissioner.

PN55

MS FORD: With all due respect, Commissioner, this is a 99 dispute. I don't think it's with respect to my learned friend here to go into certain clauses of the 2001 enterprise agreement. We are in the middle of negotiating this EBA and basically what the company is trying to do with the use of their lawyer is to stop or prevent those negotiations that we're trying to conduct in good faith. It's not necessary to go through certain clauses. It's not necessary to go through what they believe their rights are and especially whether or not they believe that the industrial action is legal or not. That's all irrelevant for the purposes of today. What we would like to do is to find out why they've called on a section 99 dispute when we are in the middle of negotiations and what is their objection to our notice of industrial action which we lodged yesterday.

PN56

THE COMMISSIONER: Perhaps first of all, Ms Ford, can we just let Mr Ball make his submissions. You'll obviously be able to make all your submissions when the time comes. Yes, Mr Ball?

PN57

MR BALL: Thank you, Commissioner. In accordance with and this is by way of background which I would hope would provide some assistance to the Commission to set the scene as to where we are today. Commissioner, in accordance with clause 66 of the agreement Fairfax Printers provided the unions with letters in or about October of last year seeking to commence the negotiations for the enterprise agreement. It wasn't until about March of this year that the AMWU and the CEPU agreed to commence negotiations for a new enterprise agreement. The first of those meetings took place on 30 March 2004.

PN58

As part of establishing the negotiations and starting the negotiations off Fairfax Printers sought to put in place a negotiation frame work. The purpose of that negotiation frame work, Commissioner, was to assist in the smooth running of the negotiations during the negotiation period. On 20 April 2004 a final draft of the negotiating frame was circulated at a negotiation committee meeting and was agreed to by all the parties. I would like to hand up a copy of that negotiation frame work. In particular, I'd like to draw your attention to the second page of the negotiation frame work and that is the last two dot points on that page and I read them:

PN59

The parties agreed to consider and to respond to proposals made by each ...(reads)... that is, an independent facilitator or Commissioner.

PN60

Since the negotiations started, Commissioner, on 30 March and prior to the first notification of industrial action on 28 June there have been approximately 16 or 17 meetings, negotiating meetings seeking to negotiate a new enterprise agreement. Arising from those meetings prior to 28 June a number of issues were resolved between the parties both of an administrative nature and a substantive nature. I won't go into the administrative matters that agreement was reached upon but in relation to some of the more substantive matters issues were resolved about selection of staff. Issues were resolved about metal relativities. Metal relativities, an eight years back claim was resolved.

PN61

The company's position in relation to a termination clause was resolved. Holiday hours which were to be taken as actual hours, a claim by the employees was actually put forward and dropped. The definition of temporary absence which the company sought to put in was ultimately dropped. Indeed, Commissioner, on 28 June 2004 which was the afternoon on which the company first received the notices of intended industrial action the parties met for a further enterprise agreement negotiation. At that meeting on 28 June agreement in principle was reached on three issues and they included part time employment, Fairfax Printers attire clause in relation to casuals and apprentices.

PN62

Commissioner, it was surprising therefore that on 28 June, that is a day on which there was a negotiation meeting, a day on which issues were resolved, that the AMWU and the CEPU served on Fairfax Printers for the first time notices of intended industrial action. That industrial action, Commissioner, which was threatened was a stoppage of work by all employees on Friday, 2 July, at 2 pm and ceasing at 5 pm. A stoppage of work by all employees on Friday, 2 July, at 10.30 pm and ceasing at 1.30 am. And a third and final stoppage of work by all employees on Saturday, 3 July 2004 at 10.30 pm and ceasing at 1.30 pm.

PN63

Commissioner, Fairfax on 28 June lodged the notification under section 99, which brings us here today. The matter was first before you, Commissioner, on 30 June 2004. At that time I appeared and informed you, Commissioner, that as a result of further discussions between the parties it was agreed that the intended industrial action would not proceed.

PN64

It was further agreed between the parties, Commissioner, that a full week of negotiations would occur between 5 July and 9 July. The parties met, as agreed, between 5 July to 9 July. That was a week which was set aside to negotiate the key issues between the parties. That week resulted in a number of outstanding issues being resolved between the parties, either agreed to or agreed to in principle. For example, a new subclause and process for internal training was agreed. Additional clarification of co-ordinators, team leaders, team and team members and team trainers roles was agreed, in principle. Changes to contractors clause to ensure further consultation, was agreed to. Phone support increase for night shift and weekend calls, was also agreed to.

PN65

In addition, the parties agreed to form a sub-committee, Commissioner, so that the re-drafting process in relation to those matters that were agreed in principle could be formed and the drafting could start occurring in relation to those clauses.

PN66

At the close of the meeting on 9 July the unions requested that Fairfax Printers table its package offer at the next scheduled meeting, that being 13 July 2004, last week. Fairfax, indeed, Commissioner, agreed to do that and I would like to hand up, Commissioner, the package offer that was put forward by the company.

PN67

Commissioner, I don't want to go through all the items of the offer but what is of relevance are a couple of matters. That is that the company, at the bottom of page 1 of the offer, was prepared to include the words - this is in relation to the protection of entitlements - the company was prepared to include the words:

PN68

Fairfax Printers Pty Limited is a wholly subsidiary of John Fairfax Holdings.

PN69

Additionally, the company was prepared to obtain a deed of cross-guarantee. Secondly, the company put forward its offer in relation to reduced hours and salary increases, which amongst other things involved a salary increase of 1.5 per cent from the date of the certification of the Agreement. That was to have retrospective adjustment and back-pay to the period - sorry, adjustment back-pay to the first full pay period on or after 25 February.

PN70

A further 1.5 per cent for salaries, from the first full pay period after the certification of the Agreement. A proposed reduction in hours for work for full-time employees currently from 45 hours per week to 43 hours per week; effective from 1 January 2005. A further salary increase of 1.5 per cent for salaries from the first pay period after 25 February 2006. A further salary increase of 1.5 per cent for salaries from the first pay period from 25 August 2006, which a nominal expiry date for the Agreement of 24 February 2007.

PN71

In addition, Commissioner, the company was prepared in the circumstances to provide for a one thousand dollar productivity bonus. In that regard the company was prepared to make a one-off bonus payment as at the first full pay period on or after the certification of the Agreement.

PN72

The company therefore upon the request of the unions put its package forward to the unions on 13 July last week. Further negotiations, Commissioner, took place last week on Tuesday, the 13th as I said and on Wednesday, 14 July. At those negotiation meetings it was indicated to the company that the employee representatives were concerned that the company's offer, in particular the quantum of salaries increases, would not meet employee expectations and therefore they could not accept the offer in its entirety until the outstanding issues were resolved.

PN73

The company, Commissioner, indicated a preparedness to make a further offer if all outstanding matters were resolved. Negotiations, therefore, continued over Tuesday and Wednesday of last week and issues that were raised and discussed were an additional two weeks annual leave for real shift workers. The introduction of a "no job share" clause. Increased redundancy benefits. The rejection of a "no extra claims" clause, and updating the award. The union representatives also put forward claims including the introduction of a 42-hour week, plus a 15 per cent increase for wages over the three year life of the agreement and seven weeks annual leave for shift workers.

PN74

Commissioner, at the conclusion of last week's negotiations, that is on Wednesday evening, a further negotiating meeting was planned for tomorrow; Wednesday, 21 July. Moreover an agenda was set to discuss the outstanding matters and those outstanding matters included the "no extra claims" clause; the award issue, that is updating the award; the "no job share" clause; seven weeks annual leave and; five weeks "redundancy pay" clause.

PN75

Commissioner, it was therefore surprising - and the company would say, contrary to the negotiation framework which I have handed up and the principle of genuinely trying to reach agreement under the Workplace Relations Act - that yesterday afternoon the company received by fax notices of intended industrial action from the AMWU and the CEPU. I seek to hand those up, Commissioner.

PN76

Commissioner, as you will observe the intended industrial action takes the form of a 3 hour stoppage of work by all employees on Friday, 23 July, commencing at 2 pm and ceasing at 5 pm and a 3 hour stoppage of work by all employees on Friday, 23 July 2004 commencing at 10 pm and ceasing at 1 pm. Sorry 1 pm on Saturday, 24 July. a.m. sorry. So I will read that again, Commissioner, that is.

PN77

THE COMMISSIONER: I note that it is a.m. Mr Ball.

PN78

MR BALL: Commissioner, although this is not a section 127 application, the company wishes to make its position clear in relation to the legality of the intended industrial action. It believes, Commissioner, that the industrial action would be unprotected industrial action if it proceeds on two bases. The first is that with respect to section 170MP of the Workplace Relations Act which provides that:

PN79

Engaging in industrial action by a person who is a member of an organisation of employees ...(reads)... reach agreement with the employer.

PN80

In other words, Commissioner, if one of the negotiating parties conduct does not satisfy the test under section 170MP, that is genuinely trying to reach agreement, the effect is that industrial action is not protected. The cases which go to the application of genuinely try test indicate that whether a party genuinely tries or not there's a question of fact of degree requiring an even-handed assessment of the industrial context of demands, conduct and character of the negotiators and the negotiations.

PN81

We say, Commissioner, if an even-handed assessment is made of the facts that there has not been a genuine attempt by the unions to reach agreement for a number of reasons with respect to and in particular given the threat of industrial action which is proposed and the bases we say that are firstly the fact that the company attempted to commence the negotiations in or about October 2003 and the negotiations were delayed and did not commence until the end of March 2004.

PN82

Secondly, the negotiating framework provides that when there is an impasse it calls for a party to seek the assistance of a third party to assist with the negotiations. At no stage, if there has been an impasse, have the unions sought to seek the assistance of a third party, whether it be this Commission or whether it be an external facilitator.

PN83

Nextly, Commissioner, it is clear that from the last occasion the experience the parties have is that negotiations and sitting down to it in relation to these matters has actually worked. Previously there was the notification of the intended industrial action on the last occasion. That was avoided. Further negotiations, a full week was set aside to negotiate, and as I've outlined before real results occurred as a result of the parties sitting together and actually negotiating.

PN84

Fourthly, Commissioner, there is a provision in the enterprise agreement and it is clause 8 of the enterprise agreement that provides that during the life of the agreement that the representatives guarantee the production of the newspapers will not be stopped or delayed.

PN85

On the bases of those four matters, Commissioner, we would be submitting that if the matter goes further that there has not been a genuine attempt by the unions to negotiate the agreement in accordance with the provisions of the Workplace Relations Act.

PN86

The second basis, Commissioner, that we would be saying that the intended industrial action would be unprotected would be pursuant to section 170ML of the Workplace Relations Act. Commissioner, in this respect the log of claims as set out in the notice of initiation of bargaining period of the AMWU and then the combined unions working log which was provided to the company at the commencement of the negotiations both refer to a claim being the update of the award. The award being the Fairfax Printers Award 1999.

PN87

The unions have continued to pursue this claim, Commissioner, throughout the negotiations despite the company stating that it is not a matter for the EBA negotiations. Section 170ML of the Workplace Relations Act as you would be aware provides that:

PN88

During the bargaining period an organisation of employees -

PN89

That is the negotiating party -

PN90

is entitled for the purpose of supporting or advancing claims made in respect of the proposed ...(reads)... is protected industrial action.

PN91

Commissioner, in these circumstances one of the key requirements for the industrial action to be protected is that it is supporting or advancing claims made with respect to the proposed agreement. The current threat of industrial action among other things is towards supporting the updating of the award rather than in respect of the proposed agreement. As such it would be Fairfax Printers submission, Commissioner, that the proposed industrial action would not be protected.

PN92

Finally, the impact of the industrial action should it proceed could not be underestimated. It would have a devastating effect on production of the papers which would result in the Fairfax Printers suffering significant financial losses as well as adversely affecting the readership numbers and its reputation to get the product out in a timely fashion. A rough estimate puts financial loss in the order of a million dollars with consequential financial losses as a result of the loss of future readership.

PN93

In addition there would be serious impairment with Fairfax' relationship with its news agents, its road transport carriers, its air carriers and its advertisers. Commissioner, not withstanding the threatened industrial action it appears that the unions seek to negotiate in the matter given that the matter had been set down for a further negotiations for tomorrow. Fairfax is prepared, Commissioner, to continue negotiations but it can't negotiate in circumstances which is tantamount to having a gun pointed at its head.

PN94

Commissioner, in the circumstances we seek your assistance to explore ways and means to overcome the current impasse and we would be seeking to go into private conference to explore those options. Thank you, Commissioner.

PN95

THE COMMISSIONER: Thank you, Mr Ball. Yes, Ms Ford?

PN96

MS FORD: Thank you Commissioner. I'll save the Commission time by not going into a step by step analysis of how negotiations have taken on foot to date. Needless to say that the unions categorically reject the version of events that has been put forward by Fairfax Printers. In essence I think what I need to do is clarify exactly what Fairfax Printers are asking and by virtue of my learned friend's submissions they are merely asking for off the record conciliation.

PN97

In that light Commissioner we suggest we do go into private conference and if we do need to make substantive submissions with respect the legal issues that have been put forward we suggest that they be put forward under the correct sections of the Workplace Relations Act and we will have that argument then.

PN98

Thank you Commissioner.

PN99

THE COMMISSIONER: Mr Ball do you want to put anything further on the record before we go into conference?

PN100

MR BALL: Not at this stage Commissioner.

PN101

THE COMMISSIONER: We will go off the record and into conference.

NO FURTHER PROCEEDINGS RECORDED [2.33pm]