C2004/4429, Transcript of Proceedings [2004] AIRCTrans 3579 (8 September 2004)

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TRANSCRIPT OF PROCEEDINGS


O/N 11071

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 a dispute re appropriate workplace agreement
to apply to two employees at the Abbotsford
Brewery Site

MELBOURNE

10.05 AM, TUESDAY, 31 AUGUST 2004

Continued from 6.8.04

PN210

THE SENIOR DEPUTY PRESIDENT: Yes, I will just note that I have received correspondence from Mr Spindler from AMWU indicating he is on leave currently and won't be appearing at this morning's hearing and indicates that he needs to and is happy to have further discussions with the LHMU in late September. Now the matter has been listed for report back. Who would like to lead off?

PN211

MR WASHINGTON: I am easy. The parties have met on several occasions, your Honour, there has been some correspondence on a settled position between the two unions if I might hand them up. The other parties have copies. There is an agreement that evolves around CUB facilitating a transfer of four CFMEU members out of certain areas, subject to a criteria which I am sure they will want to talk about, and that in turn the CFMEU will concede that the LHMU agreement covers production work in certain areas identified, and that we believe settles the issue in as far as the CFMEU and the LHMU.

PN212

In terms of its implementation I believe we have an agreement with CUB as to how that will operate and over what time period and necessities of that, if your Honour pleases.

PN213

THE SENIOR DEPUTY PRESIDENT: Yes, thank you for that, Mr Washington.

EXHIBIT #CFMEU2 CORRESPONDENCE

PN214

THE SENIOR DEPUTY PRESIDENT: It is only the one letter isn't it? Yes, thank you. Yes, Mr Redford.

PN215

MR REDFORD: Your Honour, the LHMU supports the position put in that letter, CFMEU2, and in particular supports the proposal that those four persons be transferred.

PN216

THE SENIOR DEPUTY PRESIDENT: Yes, very well, thank you for that. Mr Richardson.

PN217

MR RICHARDSON: Yes, thank you, your Honour. Your Honour, as Mr Washington in particular indicated there have been some discussions involving the three parties here today. For our part we met with both the unions on 18 August at which time the unions put forward a proposal for our consideration which evolved around the transfer of certain employees who are members of the CFMEU from different areas of the plant. And I suppose it is fair to say at that point the unions were essentially seeking our in principle agreement or otherwise to that proposition.

PN218

We indicated that for our part we were prepared to do so as long as there is an understanding reached in terms of how the transfers would be effected, this is in the context that whilst it is okay and appropriate to have the in principle agreement on the employees transferring, at the end of the day it would be the company who would be responsible for overseeing the implementation of that and in effect the processing of the transfers. So it was agreed that arising out of those discussions themselves that we would put together some wording around that as a proposal, and in fact we had a couple of attempts at doing that.

PN219

Following our sending off the first proposal the CFMEU in particular contacted us at that point and indicated that subject to a few changes being made that they would be generally supportive of that. So perhaps if I could tender to the Commission a copy of that proposal, or the amended proposal.

PN220

THE SENIOR DEPUTY PRESIDENT: Yes. That is amended after the comment by the CFMEU?

PN221

MR RICHARDSON: That is right, your Honour.

PN222

THE SENIOR DEPUTY PRESIDENT: Yes, very well.

EXHIBIT #CUB2 AMENDED PROPOSAL

PN223

MR RICHARDSON: As I indicated, your Honour, this is in effect an amended version of a process. The original one was a broader one in so far as it related to the site in toto - - -

PN224

THE SENIOR DEPUTY PRESIDENT: Yes.

PN225

MR RICHARDSON: - - - and also related to the other unions. The concern that was raised by the CFMEU was that the process that they were putting forward was one specific between themselves and the LHMU, so in effect we have narrowed down the process to specifically just cover that situation.

PN226

THE SENIOR DEPUTY PRESIDENT: Yes.

PN227

MR RICHARDSON: I won't go through the document verbatim, your Honour, but other than to indicate that, in particular in section 1, it details the basis in which an employee may transfer. And it is noted there that that could occur over a number of different means, whether it is on the basis of an employee swapping with another employee, subject to employees concerned having the specific skill requirements, or alternatively it could follow the company internally advertising for a particular position in a particular area where an employee who wants the transfer may do so, or as a result of a vacancy occurring as a result of attrition or whatever, and in which case the employee may also opt to transfer.

PN228

So we put forward this process, your Honour, as what we see is an orderly process, it may take some time to implement in the case of individual employees depending on their circumstances. We have some indication of who the employees are that the CFMEU is seeking to have transferred but we still need to go through that process of confirming that and verifying which areas they wish to transfer to. For our part we will, if it is agreed by all parties, we will seek to implement that as quickly as practicable in the circumstances.

PN229

In relation to this process that we have put forward, we have had some indications from the CFMEU that they are agreeable to it. At this point we haven't formally had any response from the LHMU so perhaps we need to hear from them in relation to that and otherwise I am pleased to hear that the unions have reached what is the basis of a resolution for this issue.

PN230

THE SENIOR DEPUTY PRESIDENT: Thank you for that, Mr Richardson. Mr Redford, did you want to say anything or did you want to - - -

PN231

MR REDFORD: Your Honour, just a couple of things. Firstly this is the first time we have seen the proposal in its current form - - -

PN232

THE SENIOR DEPUTY PRESIDENT: Yes.

PN233

MR REDFORD: - - - so we may need to ask you for a few minutes just to consider our position. Frankly we find it unnecessary. This dispute involves two workers who are contained within a sealed envelope on the file, but it in fact has brought it out to four workers. The dispute in respect of those four workers has been resolved, and it has been resolved on the basis of a proposal put by the CFMEU, supported by the LHMU, and as I understand it accepted by the company.

PN234

THE SENIOR DEPUTY PRESIDENT: Yes.

PN235

MR REDFORD: Your Honour, problem solved.

PN236

THE SENIOR DEPUTY PRESIDENT: Yes. Look - - -

PN237

MR REDFORD: If we are going to be pressed on the issue then I would respectfully request just a couple of minutes to consider it.

PN238

THE SENIOR DEPUTY PRESIDENT: Yes, well certainly I will give you that opportunity. The arrangement reached between the CFMEU and CUB nearly facilitates the implementation of the agreement between all parties, as I understand it, but do you want five minutes at this stage?

PN239

MR REDFORD: Five minutes would be good thank you.

PN240

MR RICHARDSON: Could I just clarify one aspect, your Honour?

PN241

THE SENIOR DEPUTY PRESIDENT: Yes.

PN242

MR RICHARDSON: Mr Redford has indicated this is the first he has seen of this document, and I can't verify that one way or the other here and now, but just for the record we sent this proposal off to both unions on 20 August, and that was by way of fax.

PN243

THE SENIOR DEPUTY PRESIDENT: Very well. Very well, I will adjourn until 20 past 10.

SHORT ADJOURNMENT [10.12am]

RESUMED [10.30am]

PN244

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Redford.

PN245

MR REDFORD: Your Honour, in the interests fo time, the time we have taken this morning and in fact overall with this matter, I am going to be quick.

PN246

THE SENIOR DEPUTY PRESIDENT: Yes.

PN247

MR REDFORD: It is my understanding - I wasn't at the meeting - the most recent meeting about this matter - but it is my understanding that what happened was that the CFMEU put to the company that this matter was resolved between the unions on the basis of that first letter that you have seen this morning.

PN248

THE SENIOR DEPUTY PRESIDENT: Yes.

PN249

MR REDFORD: And that what the CFMEU said to the company was, "Now we want those four persons transferred out of those areas of contention and it is up to you to work out the mechanics," so that what you have before you now in the form of that second document is the mechanics. And the LHMU's position is we recognise that the company will come up with - for want of a better way of putting it - the mechanics for the implementation of these transfers, and we have no problem with those mechanics, that is all we say.

PN250

THE SENIOR DEPUTY PRESIDENT: Yes, very well, and that will resolve the issues in respect to CFMEU, LHMU. Look would that raise the question of what is required in respect to the file, if anything, does that - I understand there will be further discussions involving AMWU , but that is a separate - - -

PN251

MR REDFORD: Well we didn't manage those, your Honour, yes.

PN252

THE SENIOR DEPUTY PRESIDENT: - - - separate matter, and if there are any issues requiring Commission involvement they can be raised with the Commission. Is everyone content with that? Does that dispose of this file?

PN253

MR WASHINGTON: Yes, I think it does, your Honour.

PN254

THE SENIOR DEPUTY PRESIDENT: Yes, very well. Well I will close this - Mr Richardson.

PN255

MR RICHARDSON: Yes, I take it, your Honour, I just want to clarify it because I think there is a bit of confusion before the adjournment, but - - -

PN256

THE SENIOR DEPUTY PRESIDENT: Yes.

PN257

MR RICHARDSON: - - - as I indicated, the meeting that we had with the parties on the 18th it was put for us, "Here is an in principle process which is based around the concept of transferring those employees from one part of the plant to another plant," and it was then asked of us to put some detail around mechanics on how that would be effected.

PN258

THE SENIOR DEPUTY PRESIDENT: Yes.

PN259

MR RICHARDSON: And unfortunately there appears to have been some breakdown in communication with the proposals that we put forward to the unions for their consideration, not being at least received in one instance by the LHMU for whatever reason.

PN260

THE SENIOR DEPUTY PRESIDENT: Yes.

PN261

MR RICHARDSON: So the proposal that we put forward essentially as we see it, as per exhibit CUB2, reflects the outcome of those discussions that we had from 18 August and subsequent discussions that we had at least with the CFMEU, who had had some further discussions with the LHMU after we put the initial proposal to them. So it is my understanding, taken from what Mr Redford has indicated and Mr Washington, that they are in broad agreement with the terms of that exhibit as tendered.

PN262

THE SENIOR DEPUTY PRESIDENT: Yes, and that through that effect will be given to the agreement recorded in CFMEU2. Very well, well I will close the file, obviously if there are - - -

PN263

MR REDFORD: Sorry, your Honour.

PN264

THE SENIOR DEPUTY PRESIDENT: Yes. Well I can't see any difference between the parties at the moment, I think Mr Richardson has just confirmed his understanding that this is as you described it, the mechanics, and that will give effect to the agreement between the unions.

PN265

MR REDFORD: Yes, although I may be hearing things a little differently from you, your Honour, but I just want to make this clear. This is the company's document, it is not our document, we are not party to it, we don't support it, we simply say we recognise that this expresses the company's right to manage these transfers according to their own guidelines.

PN266

THE SENIOR DEPUTY PRESIDENT: Yes.

PN267

MR REDFORD: As simple as that.

PN268

THE SENIOR DEPUTY PRESIDENT: Yes, well I don't think there any - - -

PN269

MR REDFORD: No.

PN270

THE SENIOR DEPUTY PRESIDENT: - - - any misunderstanding between the parties and hopefully effect will be given to the agreements between the parties and all will be well.

PN271

MR RICHARDSON: Your Honour, I accept what Mr Redford says in so far as basically alludes to the company having the prerogative to manage transfers as it sees appropriate, and we would accept that. What we have sought to do in this instance is come up with a process or develop a process that is supported by each of the parties here today to give effect to the transfers in question. Now the LHMU is saying, "Well we don't necessarily support it," presumably they are saying also they won't stand in its way.

PN272

THE SENIOR DEPUTY PRESIDENT: Yes.

PN273

MR RICHARDSON: On that basis we will accept it but they acknowledge at least that we have the capacity to manage it in the process that we are outlining we will undertake that we will apply it as per the terms of this document.

PN274

THE SENIOR DEPUTY PRESIDENT: Very well. And the proof of the pudding will be in the eating and you can all go back and do things in a practical way. All right, well I will close the file, if there is any issue arising out of implementation of the position recorded in CFMEU2 then obviously the matter can be reopened, but I am trusting the parties have put some effort in and come to a resolution that that will all be smoothly effected. So I will close the file and adjourn the matter on that basis.

ADJOURNED INDEFINITELY [10.35am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #CFMEU2 CORRESPONDENCE PN214
EXHIBIT #CUB2 AMENDED PROPOSAL PN223