C2004/5568, Transcript of Proceedings [2004] AIRCTrans 3613 (13 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 8361
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER BLAIR

C2004/5568

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

and

DELPHI AUTOMOTIVE SYSTEMS
AUSTRALIA LTD

Notification pursuant to section 99 of the
Act of a dispute re alleged lack to
prospective negotiations for a certified
agreement under section 170LJ of the Act

MELBOURNE

1.37 PM, THURSDAY, 2 SEPTEMBER 2004

PN1

MR A. COLE: I appear on behalf of the Australian Manufacturing Workers Union with MR P. DE FILICE and MR J. CUMMAUDA.

PN2

MR C.CAMERON: I appear for Delphi. With me today, Commissioner, is MS K. NEWMAN, who is the HR Manager for the Somerton plant, and MS L. DONNES, who is HR Manager for Australia.

PN3

THE COMMISSIONER: Yes, Mr Cole.

PN4

MR COLE: Yes, thank you, Commissioner. Commissioner, the application before the Commission basically lays out the purpose of our being here today. That is that on 2 August 2004 the union served a log of claims on the company following several unsuccessful attempts to reach agreement on entering into a certified agreement with the company. Perhaps I might hand that up.

PN5

THE COMMISSIONER: Thank you.

PN6

MR COLE: As you can see, Commissioner, the front page is the letter of demand and then followed by a log of claims formatted in the way that you would format an enterprise agreement. I hope the Commission will bear with me. Commissioner, further - following the logging of the company and no official response from the company, there has been informal discussions on a number of occasions by phone between the servicing organiser Mr Cummauda and representatives from the company, and they were held on 6 August and 12 August collectively.

PN7

On 23 August the union settled their outline the - its position in respect of bargaining and I will hand that up as an exhibit. I might read it into transcript, Commissioner.

PN8

THE COMMISSIONER: Yes.

PN9

MR COLE:

PN10

It is our understanding that commencing October 2004, current/existing Australian workplace agreements will expire and this will continue to occur through 2005. Vehicle Division members of Delphi have expressed to us the desire to have union representation at any negotiation and/or discussions regarding their ongoing employment conditions and wages. As such, we ask that the union be advised of any discussions and/or negotiations prior to them taking place. Your assistance in facilitating this request in an ongoing basis is appreciated. Yours sincerely, signed Gayle Tierney, the Regional Secretary of the AMWU.

PN11

At this point in time, Commissioner, I might hand up in confidence some - the bargaining agent's form, some 48 representing AMWU members and some five representing members of the CEPU, Electrical Division.

PN12

THE COMMISSIONER: Thank you.

PN13

MR COLE: And along with that, Commissioner, I will hand up a copy, a print out, of members of the AMWU consistent with the bargaining agents.

PN14

MR CAMERON: Is it possible to get a copy of the exhibits.

PN15

MR COLE: No, you can't. I am handing them up in - - -

PN16

THE COMMISSIONER: No, Mr Cole has asked that they be provided in confidence which means, Mr Cameron, that they don't require you to look at them. If you have any doubts then the practice, the normal practice, of the Commission is that the company provide a list of its employees and the Commission then looks at both lists and determines whether or not they are acting as agents and so forth.

PN17

MR CAMERON: Thank you, Commissioner.

PN18

MR COLE: Thank you, Commissioner. As you can see, Commissioner, there is a significant amount. I am unaware of the exact numbers of the employees, direct employees, of the company employed in the classifications covered by the AMWU and the CEPU, Electrical Division. Suffice to say that we put forward that there is a significant majority of those employees, so employed by the company, have authorised the union to act on their behalf in respect of the negotiations and in respect of wages and conditions of employment and the making and certifying of agreements.

PN19

What the union is seeking to do, Commissioner, is to negotiate if you like, a supersessionary agreement; to seek to put in place with the company collectively an agreement that people who, for whatever reason, do not want to continue on working under AWAs into the future and seek to be bound by a collective agreement. We believe that we can sit down with the company and negotiate such an arrangement. And as people come out of their AWAs they will have the ability to either sign a further AWA with the company if they so desire, or to be collectively bound by the certified agreement.

PN20

On the question of - questions of Australian workplace agreements, Commissioner, the union understands the provisions of the Workplace Relations Act. It does not seek to coerce employees who wish to remain employed under individual contracts of employment, be they AWAs or otherwise. And we seek that the company for its part recognise the rights and responsibilities under the Act of themselves and the employees who wish to bargain collectively under the umbrella of a registered industrial organisation.

PN21

That is for the purposes of this exercise, the AMWU and the Electrical Division of the CEPU. The company must not seek to pressure, pressurise or coerce employees in the signing of further Australian workplace agreements, with the implication of possible effects on their future employment with the company. And there is a large concern amongst the employees of the company that they will be railroaded into signing further Australian workplace agreements.

PN22

Now, the union is not in a position to determine whether that is in effect a correct position or whether it is not. Our advice to the employees has been that there are legal obligations within the Workplace Relations Act, to which both the company and the unions are bound. And that there are penalty provisions for those that seek to go outside those provisions as outlined in the Act. And certainly in respect of the employees of the company, if they make application through the union for provisions of the Act to be sought to protect them from any pressure being applied to them, well, then the union would take that particular position up and make the appropriate application to the Commission.

PN23

Commissioner, we haven't at this point in time initiated a bargaining period in respect of this matter. We believe that it is early days yet and section 170MI of the Act is not the way forward at this point in time. We only seek that the employer and the employees are certain of their rights under the Act to pursue a collective agreement or otherwise without prejudice to their employment. As such, at the conclusion of these proceedings, we would seek that we would go into conference after submissions, Commissioner, but the conclusion of these proceedings, we ask that the Commission issue a statement outlining the issues raised and their compliance or otherwise within the meaning of the Act. If the Commission pleases.

PN24

THE COMMISSIONER: Thanks, Mr Cole. Yes, Mr Cameron.

PN25

MR CAMERON: Thank you, Commissioner. Commissioner, I can outline that Delphi currently have two sites. One site being at Somerton, the other one being in Clayton. I might just simply ask to commence with, as to whether the union is purporting to represent both sites in this matter or just the Somerton site, if I may?

PN26

MR COLE: To clarify that, Commissioner, the application before the Commission which was faxed to the company clearly states, Delphi Automotive Systems, 33 Freight Drive, Somerton, Victoria.

PN27

MR CAMERON: Thank you for that.

PN28

THE COMMISSIONER: So it is only Somerton?

PN29

MR COLE: It is, Commissioner.

PN30

THE COMMISSIONER: Thank you. Yes, Mr Cameron.

PN31

MR CAMERON: Commissioner, I can outline that there are existing in place at the Somerton plant - all employees of Delphi who would be potential members or actual members of either the AMWU or the CEPU Electrical Division are covered by existing Australian workplace agreements. Those agreements are currently all in force at this point in time and it is worth mentioning that over the next 12 months less than 50 per cent of those Australian workplace agreements will expire. At this stage, Commissioner, our position is that there is no dispute. There can actually be no dispute at this point in time.

PN32

Save to say that we - no doubt my colleagues at the table would clearly commit to observing their obligations under the Workplace Relations Act. And to that extent we, I guess to some degree, are, of course, not in a position to agree to enter into discussions given the existence of those statutory agreements as they currently stand. For that end, we don't oppose entering into conference if that aids a greater understanding of the current status, and if it would assist the Commission, we also would be prepared to hand up in confidence a copy of the list of the existing employees and the expiry dates of the Australian workplace agreements for, I guess, conveying that information to the union in a global sense here today. If that makes sense to the Commission, if the Commission pleases.

PN33

THE COMMISSIONER: Mr Cameron, is it the - nothing prevents the parties from negotiating an agreement. What is prevented, of course, is taking protected industrial action. Are you saying that it is the desire of the company not to have any form of agreement with the union?

PN34

MR CAMERON: At this stage the - my client has not determined at this point in time whether they - - -

PN35

THE COMMISSIONER: Are you an agent or counsel?

PN36

MR CAMERON: I am an agent.

PN37

THE COMMISSIONER: Okay, so you seek leave. You didn't.

PN38

MR CAMERON: I am not - I am not legally qualified, I am simply - - -

PN39

THE COMMISSIONER: No, no, but if you are an agent you still are required to seek leave.

PN40

MR CAMERON: I apologise, Commissioner.

PN41

THE COMMISSIONER: Okay.

PN42

MR CAMERON: And to that extent I do seek leave to appear on behalf of Delphi.

PN43

THE COMMISSIONER: Okay. Mr Cole, do you object?

PN44

MR COLE: No objection, Commissioner.

PN45

THE COMMISSIONER: Thank you. Leave is granted, Mr Cameron.

PN46

MR CAMERON: Thank you, Commissioner. To that end, Commissioner, at this point in time and it has been conveyed verbally to the union that they have not determined the matter in which they would like to progress negotiations with their employees, whether that be on a collective basis or individual basis. Save to say that the Australian workplace agreements - the first agreement to expire does not occur until February, so we clearly have some months ahead of us before we enter even the period where they would have to contemplate the way forward, Commissioner.

PN47

THE COMMISSIONER: Yes, because the union only requires one member in order to seek an agreement from the company. There is no requirement, of course, under the Act for the company to actually reach an agreement. But if what you say is right, that there are some AWAs that expire in February, and the union has provided a list of what it says are its members or people that have authorised it to act as their agent, how many employees does the plant have?

PN48

MR CAMERON: In total the Somerton plant has - - -

PN49

THE COMMISSIONER: Yes.

PN50

MR CAMERON: - - - approximately 120 employees and to that extent clearly the position of the company is - they are not necessarily writing off the option of entering into negotiations - - -

PN51

THE COMMISSIONER: Yes, yes.

PN52

MR CAMERON: - - - but, of course, likewise I could stand here, if I sought instructions, and say they are outright rejecting those logs of claims and do not intend to enter into such negotiations. And to that extent they reserve their right to take either path, Commissioner.

PN53

THE COMMISSIONER: Yes. Hang on just a jiff, if I may?

PN54

MR CAMERON: I should mention, Commissioner, we probably would seek to take you up on the option of supplying a list of employees to cross reference, just to determine - - -

PN55

THE COMMISSIONER: Yes.

PN56

MR CAMERON: - - - that whether indeed they are all employees of the company at that particular site. Just to get clarification.

PN57

THE COMMISSIONER: No, that is fine. That is generally the way that it is done to satisfy the parties that there are genuine members or people that have - require the union to act as an agent. The only thing - I mean, it is entirely up to the company as to whether or not they wish to negotiate an agreement. But I have to say, if at some point the union were inclined to serve a bargaining period and to exercise their rights in terms of industrial action in the bargaining period, given the list that has been provided to the Commission, they have sufficient members to do some damage to the company's production.

PN58

MR CAMERON: I guess that is debatable, Commissioner. In the first instance, of course, those employees are - let us say who are covered by Australian workplace agreements, given that they don't expire until February and then it is a staggered period over in excess of 12 months - - -

PN59

THE COMMISSIONER: Right.

PN60

MR CAMERON: - - - the - of course, the right of them to take protected industrial action would be limited if non-existent. And to that end - - -

PN61

THE COMMISSIONER: Well, to those that might be - - -

PN62

MR CAMERON: Other than - - -

PN63

THE COMMISSIONER: - - - AWA free.

PN64

MR CAMERON: Yes, indeed.

PN65

THE COMMISSIONER: Upon the expiry of the AWA.

PN66

MR CAMERON: Correct and to that extent that is, of course, within the rights of the union to seek to represent those parties - - -

PN67

THE COMMISSIONER: Yes.

PN68

MR CAMERON: - - - and assuming that they don't want to enter freely into an Australian workplace agreement and I reiterate that the company will certainly comply with its obligations under the Act to - not to coerce individuals to do that.

PN69

THE COMMISSIONER: Well, I hope so.

PN70

MR CAMERON: Exactly, so - - -

PN71

THE COMMISSIONER: I wouldn't expect you to stand there and tell me that they weren't.

PN72

MR CAMERON: Quite right, and just to satisfy, I think there was certainly an undertaking that was probably sought to some extent by the union and, of course, they equally reserve their right and no doubt comply with the legislative provisions equally in regards to seeking to represent employees in a collective capacity.

PN73

THE COMMISSIONER: Okay, thanks, Mr Cameron.

PN74

MR CAMERON: Thank you.

PN75

THE COMMISSIONER: Yes, Mr Cole.

PN76

MR COLE: Yes, thank you, Commissioner. Just for clarification, I have been advised by the servicing organisers that indeed the Australian workplace agreements start expiring in October of this year. The first of those start expiring in October this year, and the company says that there is 120 employees. I am advised that there are about 70 directly employed - employees of the company in the classifications covered by the unions. The company does use supplementary labour hire employees from a labour hire company. However, they are not full-time permanent employees of the company and they would not be employees for all intents and purposes that would have coverage under the full provisions of a certified agreement negotiated between the parties.

PN77

So it would be interesting to ensure that the list the company said they would supply the Commission, outlined in detail those that are direct employees of the company and those employees - by classification, those employees who are labour hire employees employed by the company in the classifications as affected. Because my understanding is the labour hire employees are not employed under Australian workplace agreements.

PN78

THE COMMISSIONER: All right, thanks, Mr Cole. Yes, Mr Cameron.

PN79

MR CAMERON: Yes, Commissioner, to provide some clarity it is worth outlining ..... clarified to me that the number in regard to 120 employees would include salaried employees. So those who would otherwise be - what I should say is represented or have the capacity to be represented by my friend from the union would total at this point in time some 86 employees, which is probably more in line with, of course, the numbers that have been indicated.

PN80

To the extent that - of course, Delphi don't employ what I will call on hire employees or labour hire employees. There are some employees there who are on hire and provided by a supplier and to that extent we are not in a position to provide that information given they are not legally employees of Delphi. But however, of course, to assist and aid the Commission I am sure in confidence we may be able to facilitate something in that regard.

PN81

THE COMMISSIONER: Mr Cole says that his advice is that some AWAs start expiring in October this year.

PN82

MR CAMERON: That is - my instructions are clear that is not the case. The first one, I think, is February 6 and there - as to where that information has come from - but we are happy to provide to you - - -

PN83

THE COMMISSIONER: All right.

PN84

MR CAMERON: - - - and disclose to you those dates if necessary to justify the position.

PN85

THE COMMISSIONER: Okay.

PN86

MR CAMERON: Clarify, I should say.

PN87

THE COMMISSIONER: All right. And as I understand it, the company's current position is that they wouldn't be inclined to want to enter into conciliation today. Is that right? I think that is what you put.

PN88

MR CAMERON: I think it would be fair to say. I am happy to seek instructions directly but I would - save to say, we contemplated the - what may occur in the matter today and clearly at this point in time the company seeks to simply reserve its rights in terms of which way it chooses to go forward. So to the extent that conciliation today, of course, they don't have the enjoyment of maybe being able to go back and speak to a greater - let us say senior managers or managing directors and the like to provide any constructive feedback today, Commissioner.

PN89

And I should add at that point they still, I have no doubt, would seek to reserve their right until such a time that we are getting closer to that February 6 date. But reminding the Commission that again, that it is clearly a staggered position where it is not like we have a circumstance where 86 employees, all of their AWAs expire on that day.

PN90

THE COMMISSIONER: Yes.

PN91

MR CAMERON: It clearly is over an excess of 12 month period from that point in time as I am instructed. So the suitability of entering into such collective negotiations, I guess, is questionable from our perspective.

PN92

THE COMMISSIONER: Okay, thank you. Well, there is not much I can do in terms of what might be available under the Act. It is an entirely discretionary thing as to whether or not the company wishes to enter into an agreement, and whether or not the union wishes to pursue an agreement. What I might do though is encourage the parties to consider their respective positions, and if they deem it necessary, to have some ongoing discussions about whether or not it is worthwhile from the company's perspective entering into a collective agreement for those whose AWAs are due to expire.

PN93

And I may, in fact, set a report back date, I think, in November. I would assume by that time the company would have given serious consideration regarding their position. And, I think, that would then assist at least the union in trying to understand the company's view if they chose or they choose not to go down the path of a collective agreement, well, then what might be their options. And if you do, well, then the Commission can assist the parties in terms of facilitating those negotiations anyway if that is the desire of the parties. So I will set a report back date sometime in November. September I am really not interested in because I won't be here anyway. Mr Cole.

PN94

MR COLE: Commissioner, you know, with - I think it is an appropriate date if things to come to pass as the trade union would see it, well, then there may well be real reason for people to sit down around November and talk about Australian workplace agreements and the future of them given the political industrial platform of the - one of the political parties in respect to Australian workplace agreements. But I hear what the Commission has said and I think it is a logical process to go through but I again put to the Commission that if - it would assist if the Commission could issue a statement outlining the matters that have been raised before the Commission today in respect to the rights of employees to be party to an enterprise agreement or not to be party to an enterprise agreement; similarly to Australian workplace agreements.

PN95

THE COMMISSIONER: I have got a view that at this stage any statement would be a bit premature, I think, Mr Cole. I think the Commission would need to understand or at least have a clearer picture from the company as to what their options might be. They are not in a position to say that yet. They say they are considering all their options. Come November, they might be in a position to say, well, we have identified what we think might be our best option, and it might be the continuation of the AWAs or it might be a collective agreement. Then it might be appropriate for the Commission, if it deems it necessary, to issue a statement but I think at this stage it is probably a bit premature.

PN96

MR COLE: Well, I have been instructed by Mr Cummauda that the company, in fact, has said to him the other day on the telephone that, you know, they may give consideration to an LK or an LJ agreement next year. But they haven't committed themselves any further than that, so - - -

PN97

THE COMMISSIONER: Well, I mean, they still say that they haven't made a definite decision - - -

PN98

MR COLE: I understand that, Commissioner.

PN99

THE COMMISSIONER: - - - but I mean if it is of any help, I mean, the transcript will be available to the parties and you - as long as you don't cut and paste to the extent where you change it to suit your own particular purpose. But the transcript is available to the parties and if you wish to distribute that to your members then you are entitled to do so, okay?

PN100

MR COLE: Yes, thank you.

PN101

THE COMMISSIONER: All right.

PN102

MR COLE: Thank you, Commissioner.

PN103

THE COMMISSIONER: The Commission will stand adjourned until some time in November. Thanks.

ADJOURNED INDEFINITELY [2.04pm]