AG2004/6185, Transcript of Proceedings [2004] AIRCTrans 3230 (16 August 2004)

AUSCRIPT AUSTRALASIA PTY LTD
ABN 72 110 028 825

Level 7, ANZ House 13 Grenfell St ADELAIDE SA 5000
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TRANSCRIPT OF PROCEEDINGS

O/N 2081
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER FOGGO

AG2004/6185

CONCILIATION IN RESPECT OF
AGREEMENTS

Application under section 170NA(1) of the Act
by Mitsubishi Motors Australia Limited re
negotiation of a proposed agreement

ADELAIDE

9.40 AM, TUESDAY, 3 AUGUST 2004

Continued from 30.7.04

PN72

THE COMMISSIONER: Are there any changes in appearances?

PN73

MR P. BAUER: I appear on behalf of AMWU, SA Division.

PN74

THE COMMISSIONER: Further to the recommendation that I issued on 30 July I have received written confirmation from the ASU and the AWU concerning the deferral which I sought for 48 hours regarding that, I was advised earlier, by Mr Jones, that the action would not proceed. Mr Johnston.

PN75

MR JOHNSTON: That was sent to the Registrar yesterday, Commissioner.

PN76

THE COMMISSIONER: Was it?

PN77

MR JOHNSTON: Yes.

PN78

THE COMMISSIONER: It obviously was not passed on to me. I note the union's response to that and thank them, I am sure as does the company. Mr Smith. I will confirm that we are on record for the purposes of the report back?

PN79

MR SMITH: Yes, thank you, Commissioner. Commissioner, I can confirm we have now received letters from all unions deferring industrial action until further notice to the company and to the Commission. We see that as a very positive move from the unions and employees and appreciate that. Obviously, it allows negotiations to proceed in a far more positive light without the eminent threat of industrial action.

PN80

Commissioner, at the moment, we still are a significant distance apart. As far we are aware, the unions still have a claim which includes 7 weeks severance and 7 weeks notice and obviously we are still at our position so there is a large distance between us, notwithstanding, I think, the Commission's recommendation. We are looking today, Commissioner, to try and close that gap. Ideally, we would like to close it to zero but if we cannot get to zero we would see that we would like to make some significant progress towards closing that gap. The gap, at the moment, is very large and that is something that is troubling to the company.

PN81

Again, it would be misleading to suggest that we have a large amount of money to resolve this issue, we do not. As you note, in your recommendation, we have budgetary constraints. We would be looking to move towards the middle but obviously I have to put people on notice that we cannot move in a large way. Commissioner, we would see it as useful if both parties could have the opportunity to meet with the Commission separately and perhaps discuss the various issues they have got with the Commission in that forum, if the Commission pleases.

PN82

THE COMMISSIONER: Yes, thank you. Mr Jones.

PN83

MR JONES: Commissioner, we indicated the other day that there was a capacity to bring these matters to finality and whilst our position was 7 and 7 we believe that we could move and that there was space to move further towards the middle. We were, in examining your recommendation coming out of the Commission the other day, buoyed by the fact that we thought it was a positive move towards coming towards that centre ground and that it does not specify the level of movement that is required, merely specifies the area where that movement is required. I think we would have to concur with the Commission's position in identifying both severance and loyalties, the key issues for us in these discussions.

PN84

Commissioner, we see that the proposition put by Graham as a constructive one. It may move us towards the middle. Can I say, Commissioner, we have taken the opportunity to speak with our delegates and our membership about the deferral of the meeting and whilst that is supported, it cannot be considered by any stretch of the imagination as a indefinite deferral. So we would be happy to go into conference, Commissioner.

PN85

THE COMMISSIONER: Is there anything else to add from any of the other FEIU members? Perhaps if I have a talk to the company first because I think if there is going to be any progress then it would be for the company to make some sort of revised offer. I mean, we can play games here forever and ever but this needs to be resolved. So put away all the - the union knows it is not going to get 7 and 7 and the members would know that as well, I mean, that is just pie in the sky.

OFF THE RECORD

RESUMED [1.15pm]

PN86

THE COMMISSIONER: We are back on transcript in relation to these matters. Mr Smith, I would like you to outline the final position, as you understand it, that has been put by the company today.

PN87

MR SMITH: The final position is as follows. In respect of the notice period, it is 5 weeks. In relation to severance, it is 4.5 weeks per completed year of service, that is there is no pro rata-ing. The cap is 100 weeks and that caps covers both the severance and the notice payments combined. There is a loyalty payment of 1 weeks per year of service, pro rata-ed and uncapped. The run-out payment that was claim is absorbed in the loyalty payment which I have just referred to. Finally, in respect of the shift premium, the shift premium, firstly - if I could deal with this in three subparagraphs.

PN88

Paragraph (a), I am reading from the document which was marked exhibit M1, paragraph (a) says:

PN89

Shift printers will be paid on the notice and severance periods for employees who are working ...(reads)... minimum period of 12 months.

PN90

A new subparagraph (b) which is: any employee who is working on shift, excluding day-shift, on 1 November 2003 for a minimum period of 12 months prior to this date and who does not receive the benefits prescribed in (a) above shall receive a one off ex gratia payment of $1000 gross. Commissioner, in other words, those people who were working back on 1 November get a $1000 gross ex gratia payment that they can't - people who get the other benefit of the shift premiums, can't double-dip.

PN91

THE COMMISSIONER: So in fact what you would do, in the negotiating document that was marked as exhibit M1, clause 18, there is part (a) and part (b) and you are adding a catch-all then through (c)?

PN92

MR SMITH: Yes. The existing paragraph (b) will become paragraph (c). Commissioner, as I understand it, that is the final position of the company and it is a matter for the unions now as to whether or not they accept that position.

PN93

THE COMMISSIONER: Yes, thank you. Mr Jones.

PN94

MR JONES: Thank you, Commissioner. We are pleased to be nearing the end of these negotiations. There are a couple of points I would like to make. Firstly, can I say that in respect to the union's caucus during the break, that we are able to recommend to out collective membership, at a time to be convened, the package as has been presented by the company so that we concur with their understanding as to what is and what is not agreed. There are a couple of questions that we need to ask. Firstly, when Graham was expressing the issue in respect of loyalty payment, I do not know if I heard the pro rata aspect of that, so I just put that on record.

PN95

MR SMITH: I can confirm that it is pro rata-ed.

PN96

MR JONES: The second issue, Commissioner, was a confusion that existed, on our side, in respect to notice and I just simply ask the question: is it intended that a person's notice count for the purpose of service? For example, if a person has 4 years 11 months and 5 days, does the notice period count for the purposes of building that to 12 months?

PN97

MR SMITH: The answer to that is no.

PN98

MR JONES: Thank you, Commissioner.

PN99

THE COMMISSIONER: Mr Jones, I take it, is speaking on behalf of the FEIU unions?

PN100

MR JONES: Yes.

PN101

THE COMMISSIONER: How do I describe these people who are here today? I know there are many ways. Are they delegates?

PN102

MR SMITH: Yes.

PN103

MR JONES: Yes.

PN104

THE COMMISSIONER: All the people here are delegates of one form or another.

PN105

MR JONES: Yes.

PN106

THE COMMISSIONER: Are there any people who are not delegates, I should have asked that before?

PN107

MR SMITH: All delegates.

PN108

THE COMMISSIONER: I am going to issue this as a recommendation of the Commission. It has been well-negotiated between the parties. I think you have taken to the job in a sensible way, understanding, of course, the employees want to get as much, and the union's on your behalf, out of this as you can given you are losing your job and it is a bona fide redundancy position. I am going to indicate the main elements of the package are well-understood. The other parts that are in the negotiating position document, which was marked as M1, I am not going to reproduce that. You have agreed in relation to the medical testing and it is a matter for you to put that in place and, of course, all the other elements on sick-leave, annual leave, etcetera. They are all agreed.

PN109

However, I am going to leave nothing to chance because if this is not accepted, then there will be an arbitration of this matter. The top precedents, the most generous precedents which exist, is the Toyota package. My understanding of the figures is this arrangement that you have negotiated is superior to the Toyota position. So people who think, well, the company said yes, to this, they have gone up here, they have gone up, that there is room left, would be fooling themselves.

PN110

So make sure that the other employees understand that if this position is not accepted, the redundancy will be subject to arbitration and you will never do as well out of an arbitrated agreement as you will out of a negotiated one, you just will not. For various reasons, the Commission is put into a position where it has to look at current industry levels of things. It has principles it has to abide by. Seldom, if ever, have I known a situation where an arbitrated outcome is going to give you in excess of anything that has existed before.

PN111

So that really does need to be understood by people who may believe that you have not got as good a deal for them today as you could have. You have got a very good deal. The company is over budget by this. You might like to take the opportunity to sort of give your best wishes to Mr Collett and Mr Barrett on the way out, they probably will not be around tomorrow and Mr Smith, the end of your career representing Mitsubishi, I would say. In all seriousness sit is a good deal and should be supported and I am very pleased the delegates have decided to do that. I hope there is nothing else but I will require a formal response from the unions on the acceptance. Perhaps if you just advise Donna at some stage - when are you going to have your mass meeting, this week or next

PN112

MR JONES: It depends, Commissioner, on how soon we can get some simplified information out to people and we will need a clean document, which the company have committed to preparing for us so we need that sooner rather than later. We are aiming for Friday still as a report-back meeting. We have got the mandatory 2 week issues that I suppose we have to subscribe to. So we are still aiming for Friday for a report-back but nothing more than a report-back.

PN113

THE COMMISSIONER: All right, nothing more than a report-back, what does that mean? No vote?

PN114

MR JONES: Incapable of having a vote at this stage. It depends - the vote will take place predominantly when we have got information out there for people to have a look at. That is going to take, I think, a day or two to get done. Then the shop stewards need, once they have understood that information, to then talk to their people to explain it to them so we can have a quiz Friday or do it the following Friday or whatever, I am not particularly fussed.

PN115

THE COMMISSIONER: All right, pending - I understand fully - pending acceptance by the rest of the employees and union members, then I envisage that is the end of this. There are only two other issues that I should advise the company there are people in this room who tend to take up the opportunity of transfer so I hope that is a separate issue, the VSPs through Tonsley Park, I hope they can be sorted out sooner rather than later so that people can get on and start taking up the new direction in their lives. For the rest of you, I hope you can have a good life post Mitsubishi but do not forget to buy before you go because that would help.

ADJOURNED INDEFINITELY [1.25pm]