C2004/5411, Transcript of Proceedings [2004] AIRCTrans 3566 (8 September 2004)

AUSCRIPT AUSTRALASIA PTY LTD
ABN 72 110 028 825

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

TRANSCRIPT OF PROCEEDINGS


O/N 11063

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER MANSFIELD

C2004/5411

COMMUNICATIONS, ELECTRICAL,
ELECTRONIC, ENERGY, INFORMATION,
POSTAL, PLUMBING AND ALLIED
SERVICES UNION OF AUSTRALIA

and

TXU ELECTRICITY LIMITED

Application under section 170LW of the Act
for settlement of dispute re application of
agreement, in particular application of the
TXU disciplinary policy and disciplinary
action taken and proposed to be taken against
two employees

MELBOURNE

10.03 AM, MONDAY, 30 AUGUST 2004

Continued from 16.8.04

PN508

MS K. PARKER: I appear for the CEPU. I may be joined shortly by MR HAYES, he is just stuck in traffic at the moment.

PN509

THE COMMISSIONER: Good, Ms Parker.

PN510

MR I. DIXON: I have MR B. TROY and MS L. TERESINSKI with me on behalf of the respondents.

PN511

THE COMMISSIONER: Good. Are there any objections to appearances? No, good. Leave to appear is granted. I have received correspondence this morning from Maurice Blackburn Cashman regarding the parties proposing to seek an adjournment of the hearing which was to commence this morning. Ms Parker or Mr Dixon, do you want - who wants to take the floor on that matter?

PN512

MS PARKER: Commissioner, I understand that that is by agreement - - -

PN513

THE COMMISSIONER: Yes.

PN514

MS PARKER: - - - with my friend. We spoke late last week and we have also had a discussion in relation to available - or dates upon which our various witnesses are available and ourselves and we wondered whether it would suit the Commission if it could be relisted for the 22nd and 23rd of this month.

PN515

THE COMMISSIONER: Yes, that is quite satisfactory, Ms Parker.

PN516

MS PARKER: And there was a further matter which I just wanted to - which is more of a technical issue that I just wanted to bring up provided that there is nothing about the dates that Mr Dixon wishes to add.

PN517

THE COMMISSIONER: Yes.

PN518

MR DIXON: No there is not, Commissioner. We do seek to adjourn it by consent having spoken to Ms Parker over that adjournment. We only have one possible problem if - I haven't had a chance to raise this with Ms Parker. Ms Teresinski may be away on the 23rd but if we can interpose her on the afternoon of the 22nd that would be fine. I don't anticipate that is going to be too much of a problem having looked at the witness statements.

PN519

But again I haven't had that possibility but we think that is enough time to try and sort out the documentation issues. We have three subpoenas which we have received being issued by the Commission at the request of the applicant and we need to go through that with you to see if - the breadth of those. And what we are proposing is that we will sit down with each other and try and come up with an agreed timetable over the next two weeks.

PN520

And I would also be seeking further orders from you or just procedural directions regarding delivery of a statement by Mr McTaggart, another witness of ours, in the next few days. But up till - we will leave that for the moment if I can because Ms Parker may want to raise these other matters with you first but the adjournment is something we do seek until that time - - -

PN521

THE COMMISSIONER: Yes, thank you.

PN522

MR DIXON: - - - to leave.

PN523

THE COMMISSIONER: Yes. Well, in regard to the adjournment, the adjournment is, of course, acceptable being requested by the parties and we will re-list this matter for 22 and 23 September. We will start at 9.30 on the 22nd just to give us a little bit extra time, and we may well sit till 4.30 that afternoon with a similar program the next day if it appears to be necessary. So that takes care of the adjournment. In relation to the subpoenas, is there any difficulty with TXU in responding to the issues that are raised in the subpoenas by way of provision of information to the applicant?

PN524

MR DIXON: There is, Commissioner. We say at the outset, as we wrote to you formally, I think, and we foreshadowed to Maurice Blackburn and Cashman that we think they are too wide and vexatious but that is a formal objection. At this stage we would seek to reach agreement with our learned colleagues about the depth and exactly what details and what documents are needed. And if we can do that over the next week or so then that will take care of any formal objection.

PN525

We simply suggest, if we could, that today be - no further orders or any directions be made about that other than where the parties will get together. And if we can't reach agreement we would seek leave to come back before you and formally argue that they are being oppressive or wide or unnecessary, but if we can reach agreement then that will go away. We suggest that timetabling - if this is - today being the 30th, if we haven't reached agreement by the - in two weeks time, I am not sure what Ms Parker thinks about that, I am making, discussing matters on my feet - by the 10th. If we haven't reached agreement by the 10th on what documents would satisfy those subpoenas then we have liberty to come back to you on a short hearing to argue if need be.

PN526

MS PARKER: Yes, that is agreeable, Commissioner.

PN527

THE COMMISSIONER: Yes. Well, why don't we tentatively list a report back for 4.00 pm on the 13th, which is the Monday, with the intention that if the parties have reached agreement we won't go ahead with that hearing.

PN528

MR DIXON: That is fine with us.

PN529

MS PARKER: Yes, Commissioner.

PN530

THE COMMISSIONER: Good.

PN531

MR DIXON: On the witness statement by Mr McTaggart, having discussions with Ms Parker, we will provide that by close of business on Wednesday - the - this Wednesday the 1st. Mr McTaggart is still on leave but being a willing officer of the respondent is prepared to sacrifice the necessary time. He has just come back from overseas this weekend, so I do have to contact him to see if he is available but it will not be a lengthy affidavit. We have filed two - three at the moment so - or witness statement. So we will provide that by close of business on 1 September.

PN532

THE COMMISSIONER: On the 1st, so there is no need to issue any directions in regard to that.

PN533

MR DIXON: I would hope not.

PN534

THE COMMISSIONER: Good. In relation to the material sought in the subpoena, do you wish to have any more discussion either on or off the record this morning in relation to that? Or would the parties prefer just to discuss that between themselves for the time being and involve the Commission at a later time if necessary?

PN535

MR DIXON: From the point of view of the oppressed respondent or the alleged oppressed respondent, we are happy to have a discussion with Ms Parker first to see if we can - we do - we have our formal objection on the record - - -

PN536

THE COMMISSIONER: Yes.

PN537

MR DIXON: - - - and they have their subpoena for good reasons and - but if we can sort it out between ourselves I don't think we need to take the Commission's time any further today.

PN538

THE COMMISSIONER: Yes. Good, that is fine. Well, is there anything else we need to do this morning?

PN539

MS PARKER: Commissioner, just one matter and it deals with - the application that was filed on behalf of the CEPU by our firm doesn't actually set out the companies that have been notified.

PN540

THE COMMISSIONER: Yes, and you mentioned that in your correspondence, I think, that - - -

PN541

MS PARKER: I just - I thought it was worthwhile clarifying that because on some of the Commission documents- - -

PN542

THE COMMISSIONER: Yes.

PN543

MS PARKER: - - - there is different company names that have been mentioned as the respondent.

PN544

THE COMMISSIONER: Yes.

PN545

MS PARKER: And I thought it was worthwhile clarifying now the respondents to the notification and the certified agreement names TXU Electricity Ltd and TXU Australia Services Propriety Ltd as the parties bound. And I note that we received a statement on Friday from Mr Gorfine, who explains in his statement that TXU Networks is a business of both of those companies. But - - -

PN546

THE COMMISSIONER: Is it a business which is a separate corporate entity or is it simply a - - -

PN547

MS PARKER: Well, it is - - -

PN548

THE COMMISSIONER: - - - trading arrangement within TXU Electricity Ltd?

PN549

MS PARKER: I am not quite sure, Commissioner, but - - -

PN550

THE COMMISSIONER: Well, you are looking for clarification on that, Ms Parker, are you?

PN551

MS PARKER: Well, I guess for the purposes of the notice, given that the two companies that I mentioned are bound by the certified agreements, I think it appropriate that they be the named respondents for the purposes of the proceedings but - - -

PN552

THE COMMISSIONER: Yes, we could always refer to them as the TXU group of companies I expect.

PN553

MS PARKER: That is right, but look I have - - -

PN554

MR DIXON: Probably wouldn't be sufficient, Commissioner, normally - - -

PN555

MS PARKER: Well, Commissioner, I also did a company search and TXU Australia Services Pty Ltd has changed its name to SPI Australia Services Pty Ltd. So - - -

PN556

THE COMMISSIONER: Yes. Ms Parker, I think the point is understood.

PN557

MS PARKER: Yes.

PN558

THE COMMISSIONER: Mr Dixon or Ms Teresinski.

PN559

MR DIXON: The proper officer is - the proper companies are TXU Electricity Ltd and TXU Australia Services Pty Ltd. Let me explain Mr Gorfine's position. It is put in there because he is engaged within the TXU group of companies but does fulfil the functions that are carried - set out in that paragraph (iv) - the two companies.

PN560

They are properly named TXU Electricity Ltd although they have formerly changed their name SPI. But rather than complicate matters with that, unless there is a desire by the Commission or the applicant to make that change, we would continue under TXU Electricity Ltd. Business is as usual at the moment. The corporate structure remains exactly the same. The name has changed.

PN561

THE COMMISSIONER: So Mr Loveday and his colleague are both employed, I think, by TXU Electricity Ltd.

PN562

MR DIXON: There is - yes, there is no change at all. There is no change to their employer except for the name.

PN563

THE COMMISSIONER: Yes.

PN564

MR DIXON: So it is a name change by their employer. So to be perfectly correct it would be SPI Electricity Ltd.

PN565

THE COMMISSIONER: Well - - -

PN566

MS PARKER: Sorry, SPI Australia Services Pty Ltd.

PN567

THE COMMISSIONER: No, TXU - SPI Electricity Ltd is currently the employer of Mr Wall, is it, and Mr Loveday?

PN568

MR DIXON: Yes.

PN569

THE COMMISSIONER: Yes.

PN570

MR DIXON: Yes, TXU - the two companies who are employers in the group are TXU Electricity Ltd and TXU Australia Services Pty Ltd. I think Mr Wall and Mr Loveday fall within TXU Electricity Limited.

PN571

THE COMMISSIONER: Yes.

PN572

MR DIXON: Contrary to other proceedings perhaps we weren't going to take any point about that. We take it as being TXU Electricity Limited, I think, is the actual employer.

PN573

THE COMMISSIONER: Yes.

PN574

MR DIXON: And that remains the employer other than the name change.

PN575

THE COMMISSIONER: To SPI Electricity Ltd.

PN576

MR DIXON: To SPI.

PN577

MS PARKER: Yes but, Commissioner, we are seeking an application which deals with the effect of the enterprise bargaining or certified agreement to which those two companies are a party to. So obviously any orders we would seek to have made or directed towards those two companies - and I guess I am seeking to clarify one of them is TXU Electricity Ltd.

PN578

MR DIXON: Yes.

PN579

MS PARKER: The other one is SPI Australia Services Pty Ltd. That is its current legal name.

PN580

MR DIXON: Yes, we agree with that.

PN581

MS PARKER: So, I think we are in agreement about that but I just wanted to raise that because we probably introduced some confusion in having our statements naming various respondents, and I think the same with the respondent as well.

PN582

THE COMMISSIONER: Yes, and from our end as well there is a - with the change of ownership of the company to now include SPI, plus the various trading arrangements and corporate arrangements within the old TXU, its - it has got elements of confusion in it. But I think we are clear. So from the Commission's point of view, if we referred to TXU Electricity Ltd and TXU Australian Services Pty Ltd, would there be any challenge to that?

PN583

MR DIXON: We would - no. We would take that as binding the current companies - - -

PN584

THE COMMISSIONER: Yes.

PN585

MR DIXON: - - - whatever name they are and the old companies - - -

PN586

THE COMMISSIONER: Yes.

PN587

MR DIXON: - - - as the employers.

PN588

THE COMMISSIONER: Good. Thanks, Mr Dixon. Good. Is there any other matter that the parties wish - - -

PN589

MR DIXON: Well, Commissioner, there is one which is not directly on point and Ms Parker is at a bit of a disadvantage here because I don't think she has Mr Hayes with her and we would ask that you would keep tomorrow free, if you wouldn't mind.

PN590

THE COMMISSIONER: Tomorrow is free, Mr Dixon.

PN591

MR DIXON: We had hoped that would be the case. Following this - going to be - we would ask you for another matter.

PN592

THE COMMISSIONER: Yes.

PN593

MR DIXON: And I can foreshadow it to Ms Parker which - it may help her. Mr Hayes would understand and the Commission will - we believe that there is continuing industrial action being taking place despite assurances to this Commission by the union it is not; despite a letter from the union to the Commission and to the employer, that it is not.

PN594

THE COMMISSIONER: And this probably goes to weekend overtime, does it, Mr Dixon?

PN595

MR DIXON: And we - it does go to weekend overtime, Commissioner, and we will be bringing an application tomorrow - most likely bringing an application tomorrow to continue the 166A application to get an order from this Commission to finalise it because it is continuing in our view. I am seeking instructions at the moment to confirm that but we would be very grateful if the Commission could keep tomorrow morning free.

PN596

THE COMMISSIONER: Mr Dixon, tomorrow morning is free and I will keep it free. I wouldn't expect anything will come up in the meantime anyhow but - or most likely tomorrow will be free in its entirety. But regardless of anything else that might come up during the day, I will keep tomorrow morning free.

PN597

MR DIXON: Thank you very much. We were hoping to speak to Mr Hayes this morning and we are also getting instructions from the field at the moment. But I should tell you that - and I should foreshadow to Ms Parker.

PN598

THE COMMISSIONER: Yes. All right. I should say to Ms Parker, in her reporting to Mr Hayes, this matter has been before the Commission on several occasions, Ms Parker. The references to ongoing industrial action by members of the ETU in - contrary to the suspension and later withdrawal of the bargaining period by the ETU. So, I can say to Mr Hayes whatever patience we might have had at one stage, it is rapidly running out. Good, well, this matter is adjourned.

ADJOURNED UNTIL WEDNESDAY, 22 SEPTEMBER 2004 [10.17am]