C2004/5858, Transcript of Proceedings [2004] AIRCTrans 3708 (21 September 2004)

AUSCRIPT AUSTRALASIA PTY LTD
ABN 72 110 028 825

Level 10, 15 Adelaide St BRISBANE Qld 4000
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TRANSCRIPT OF PROCEEDINGS

O/N 3286

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER SPENCER

C2004/5858

AUSTRALIA POST

and

TRANSPORT WORKERS' UNION OF AUSTRALIA

Application under Section 127(2) of the Act
for orders in respect to impending or probable
industrial action by TWU members

BRISBANE

11.02 AM, FRIDAY, 10 SEPTEMBER 2004

PN1

THE COMMISSIONER: Thank you. I'll take appearances, please.

PN2

MR G. MARTIN: May it please the Commission, I seek leave to appear on behalf of the applicant, Australian Postal Corporation.

PN3

THE COMMISSIONER: Thank you, Mr Martin.

PN4

MR D. PRIOR: As it pleases the Commission, my name is Prior, initial D, industrial officer for the Transport Workers' Union of Australia, Queensland branch. With me, I have the state secretary, MR H. WILLIAMS - at his right, TWU organiser MARK WALKER.

PN5

THE COMMISSIONER: Thank you, Mr Prior. No further appearances? Mr Prior, Mr Martin is seeking leave to appear, do you have any objection to that?

PN6

MR PRIOR: We have no objection under the circumstances, Commissioner.

PN7

THE COMMISSIONER: All right. On that basis, Mr Martin, I grant leave to appear.

PN8

MR MARTIN: Thank you, Commissioner. Commissioner, the application in this matter was filed yesterday and today I seek leave to place before the Commission an affidavit of Merilyn - spelled M-e-r-i-l-y-n - Keene - K-e-e-n-e, which is in support of the application.

PN9

THE COMMISSIONER: Mr Prior has a copy of that?

PN10

MR MARTIN: Yes, yes. Just - - -

PN11

THE COMMISSIONER: Do you wish to proceed to call that evidence now? Because I may take - just the 2 pages, Mr Martin?

PN12

MR MARTIN: The affidavit?

PN13

THE COMMISSIONER: Yes.

PN14

MR MARTIN: There is only 2 pages, yes.

PN15

THE COMMISSIONER: Do you wish to - - -

PN16

MR MARTIN: I'll take you - may I just go to the background of this?

PN17

THE COMMISSIONER: Yes.

PN18

MR MARTIN: My client presently has, or is a party to, a certified agreement with the CEPU, which covers, for the purposes of this application, all relevant employees. That agreement is passed - - -

PN19

THE COMMISSIONER: I'm sorry, Mr Martin. Can you just repeat - there's an agreement reached with the CEPU?

PN20

MR MARTIN: There is a certified agreement in place with the CEPU. It has passed its expiry date.

PN21

THE COMMISSIONER: Thank you.

PN22

MR MARTIN: Negotiations have been taking place with the CEPU and an agreement has been reached. And that agreement or the terms of it, have been attached to the application as attachment 4.

PN23

THE COMMISSIONER: Yes.

PN24

MR MARTIN: And you will see from it - you need only go to the table of contents to see that it is a comprehensive agreement which deals with all of the matters one expects in a comprehensive certified agreement. The Transport Workers' Union is aware and has been aware of the negotiations with the CEPU and the Transport Workers' Union was informed on 8 September this year that the agreement had been made and that was known to the TWU prior to that union taking action on the afternoon of 8 September 2004, pursuant to - what that union would be fair to say was industrial action engaged and pursuant to a notice of bargaining period in seeking the making of an agreement.

PN25

THE COMMISSIONER: So you say, Mr Martin, the agreement has been made?

PN26

MR MARTIN: It hasn't been certified. There are some more steps to be taken before certification. There hasn't been vote taking yet, for example. We're confident, though, that given the previous certified agreement and the terms of this one, certification will follow in due course. Now, if our confidence is correct, then the certified - or the agreement, which is attachment 4 to the application, will cover all persons who either are or could be entitled to be members of the Transport Workers' Union and the subject of any possible action being taken by that union.

PN27

The Union has been asked to desist from taking any further action after the picket that was established on the 8th, but we have not received any response to that request. And we are still within the time period notified for the taking of action.

PN28

THE COMMISSIONER: I did see, Mr Martin, in the grounds and reasons, that there was, I think, reference to a 48 hour stoppage to take place from 4 pm - it would have been, I think, Wednesday the 8th - did that occur?

PN29

MR MARTIN: There was a short picket on the 8th for about an hour or an hour and a half, and that was at the Australia Post premises at Underwood. About 30 people were involved in the picket and some or all of them stood in the driveway, interfering with access to the applicant's premises at Underwood. We are in the position, having entered into negotiations and having concluded those with the CEPU on a comprehensive agreement which covers all of the employees that might otherwise be affected by the TWU, of not being able to negotiate with the TWU for any sensible purpose, because we are in a position where, on the authorities, it appears we are incapable, even if we wanted to, of withdrawing from the agreement.

PN30

So that even though the agreement has not yet been certified, we are in a position where the CEPU would be within its own rights to bring it to the Commission for certification. Our point is that it is senseless and useless for the TWU to attempt to continue in its path of seeking an agreement with us when we are already a party to a comprehensive agreement with another union.

PN31

Commissioner, you would be aware of a decision of Senior Deputy President Lacy in Group 4 Securitas, which I thought was going to be here but it's not.

PN32

THE COMMISSIONER: I'm aware of the decision, Mr Martin.

PN33

MR MARTIN: The print number is 909786. It involved the ALHMWU and Group 4 Securitas. The gist of it is this - and I will read from paragraph 48:

PN34

An agreement made under the Act reflects a bargain between the parties, part of which may, as it does in this case, affect rights established and accrued as a result ...(reads)... if all other criteria for certification are met.

PN35

The point we seek to draw from that is this: say, for the sake of argument, we wanted to enter into negotiation with the TWU and we wanted to arrange a new agreement. The CEPU would be entitled to come before this Commission and, if the Act is otherwise satisfied, have the agreement we have already made with them certified. Thus bringing to an end any possibility of having an agreement with the TWU. The point is that the action of the TWU is useless; it cannot bring about our agreement because there's already one in place. Now, that particular viewpoint - - -

PN36

THE COMMISSIONER: Mr Martin, in that Group 4 Securitas decision that you referred to of SDP Lacy what stage was the agreement at there?

PN37

MR MARTIN: It was before the Commission.

PN38

THE COMMISSIONER: Yes.

PN39

MR MARTIN: Application for certification had been made and the employer sought to withdraw. It was in that period after execution but before certification.

PN40

THE COMMISSIONER: Yes. The agreement was said to be made because it had been taken to the vote of the employees?

PN41

MR MARTIN: Yes, it was at that point. We acknowledge we haven't reached that point. Now, also I do have this authority, a decision of Deputy President Hamilton in Pampas Pastry, Print 929936 at paragraph 15. Deputy President Hamilton referred to Group 4 Securitas and made the point at 15 that:

PN42

It is probably the case that the CEPU could not withdraw from the agreement ...(reads)... and certainly could not withdraw once the certification application was made.

PN43

Now, we accept that we're not as advanced as either of those cases. But both those cases speak of the manner in which the legislation has been drawn and the scheme which has been set up to encourage the making of agreements. It is one of the objects of the Part of the Act to encourage the making and facilitate the making of agreements. If in a circumstance where there has been an agreement reached between a union and an employer, which on its face is otherwise reasonable, then it is not consistent with the object of the Part to allow another union to make claims and rely upon claims in order to take industrial action to seek an agreement for itself.

PN44

It does not facilitate or encourage the making of agreements if, having made an agreement, another union can take action against the employer. We say that that is incompatible - what is being done at the moment is incompatible with the processes envisaged for these types of agreements. There is another quite substantial thing also that we say is in our favour. The action that was taken by the TWU on Thursday and any action it might seek to take under the notification of bargaining period will be unprotected. I would ask you, Commissioner, to go to the application. You will annexed to it the notice of initiation of bargaining period from the TWU.

PN45

THE COMMISSIONER: Attachment 1?

PN46

MR MARTIN: Attachment 1. And in particular I would ask you to look at matters that the TWU proposes should be dealt with by the agreement: rates of pay, allowances, occupational health and safety, protection of employee entitlements and any other relevant matters affecting the conditions of work at Australia Post. Following the decision in Electrolux by the High Court, that statement takes this notice out of the area of protection because it goes beyond those matters that deal with the relationship between employer and employee, because any other relevant matters affecting the conditions of work at Australia Post are substantial and much broader than matters pertaining to the relationship between employer and employee, because, for example, that would include or incorporate a bargaining agent's fee.

PN47

That is a matter that affects conditions of work, and a bargaining agent's fee has been held by the High Court to be outside the protection of the Act. I've got a copy of the decision for you, Commissioner. I will hand that up and just take you to a few parts of it. As much as you would like these judges to provide you with a very succinct one-paragraph answer, they never do. So I will have to take you to a few parts of it.

PN48

If I could take you to McHugh Js decision at paragraph 112, he has, on his way to getting to 112, dealt with the significance of certification and under the heading: Whether Industrial Action In Support Of A Proposed Non-certifiable Agreement Is Protected Action - paragraph 112 - he comes to the conclusion in that paragraph and over the page that if there is a matter which is not capable of being included in a certified agreement and action is taken in support of it, then that action is not protected. You will see there that he construes Section 170ML and the protection it affords; and at paragraph 114 he says:

PN49

The protection conferred by Section 170ML(2) operates if the following ...(reads)... satisfies the requirements of 170LI.

PN50

And the proposed agreement here does not satisfy that for two reasons. One is it's far too broad; it is vague and its vagueness means that it includes almost any matter affecting conditions of employment; and it is not restricted to the matters required under 170LI, that is, matters pertaining to the relationship between an employer and/or persons who are employed, etcetera. Now, he says there, that removes the immunity, the fact that the proposed agreement is in that form.

PN51

THE COMMISSIONER: So on your previous argument, Mr Martin, the immunity would only come to an end at the time of certification of the agreement?

PN52

MR MARTIN: Yes.

PN53

THE COMMISSIONER: But the next prong of your argument is that that immunity, by virtue of this Electrolux decision, is immediately at an end because of it's inconsistent with that particular decision - - -

PN54

MR MARTIN: Yes.

PN55

THE COMMISSIONER: - - - due to the proposed provisions and the broad ranging nature of those provisions that could be argued would be outside those pertaining to the employer/employee relationship.

PN56

MR MARTIN: That's so, Commissioner. Can I take you quickly to some other - - -

PN57

THE COMMISSIONER: So - just so I'm clear, Mr Martin, if, in fact, the second argument were to fail, on your first argument, any proposed industrial action that were to occur - and I'm just putting this back to you for testing - prior to the certification of that agreement would, in fact, be immune but for the Electrolux argument?

PN58

MR MARTIN: Yes. Well, subject to the action complying with the Act.

PN59

THE COMMISSIONER: Correct. I'm not encouraging that; I'm simply putting - - -

PN60

MR MARTIN: No, I know. Can I take you to paragraph 120 of McHugh Js decision, where he refers to section 170ML.

PN61

THE COMMISSIONER: When I say I'm not encouraging it, I'm not saying it's not legitimate, Mr Martin.

PN62

MR MARTIN: No. I understand that. At 120, his Honour says:

PN63

Given these limiting conditions -

PN64

and that's the conditions relating to the employer/employee relationship -

PN65

the natural and ordinary meaning of section 170ML is consistent with the two principles of statutory construction to which - - -

PN66

THE COMMISSIONER: My apologies. What paragraph are you at?

PN67

MR MARTIN: 120.

PN68

THE COMMISSIONER: Thank you. Yes?

PN69

MR MARTIN:

PN70

Indeed, those presumptions support the proposition that the scope of protected action is limited, and that industrial action is only protected if it is in support of a claim in a proposed agreement that is capable of being certified under Division 2 of Part VIB, and there is no proposed agreement here capable of being certified.

PN71

Commissioner, you will recall that this decision was by a majority of six to one. I won't take you to all the Judges in the majority, but to the joint decision now of Gummow, Hayne, and Heydon JJ, where they steal, at section 170ML, at paragraph 164, you'll see there that, at 164, they say:

PN72

The chain of provisions in Part VIB, from the phrase, "wants to negotiate an agreement under ...(reads)... pertaining to the relationship between the employer and employees.

PN73

Then, at 165, they explain why, in this particular case - that is the bargaining agent's fee - it failed, and they refer to reasons given by the primary Judge, Merkel J, in the Federal Court. And of course, as I said earlier, the matter set out in the initiation of bargaining period by the TWU is broad enough to encompass a bargaining fee, amongst other things.

PN74

So without taking you in any greater detail to other decisions, those decisions - the reasons of those four Judges is sufficient, in my respectful submission, to establish that the action is unprotected because of the nature of the initiation of the bargaining period. As it is unprotected, you are entitled, if otherwise satisfied, to make an order under section 127. In the circumstances of this case, where there is an agreement yet to be certified, but to replace a current certified agreement with another union governing all relevant terms and conditions and all employees, you should make an order of the type sought, so that the bargaining process is not disturbed, and because such an order would be consistent with the objects of the Act, namely to encourage and facilitate the making of agreements. Unless you have something, Commissioner, those are my submissions on the point.

PN75

THE COMMISSIONER: Right. Not at this point, Mr Martin. Thank you. Mr Prior?

PN76

MR PRIOR: Thank you, Commissioner. Perhaps, having heard what we heard in relation to the application under 127, and bearing in mind I have another matter imminent this morning, we would seek your permission for a 10-minute adjournment.

PN77

THE COMMISSIONER: All right. That's for discussions with Mr Martin?

PN78

MR PRIOR: For discussions.

PN79

THE COMMISSIONER: Not to attend the other matter, Prior?

PN80

MR PRIOR: No, Commissioner, to have discussions with - - -

PN81

THE COMMISSIONER: All right. Certainly. I'll grant that adjournment.

PN82

MR PRIOR: Thank you.

SHORT ADJOURNMENT [11.28am]

RESUMED [11.49am]

PN83

THE COMMISSIONER: Mr Prior?

PN84

MR PRIOR: Thank you, Commissioner. By way of response we say, as we've said ever since we initiated a bargaining period in this matter back on 20 April, that we have members in the work site. Those members have the right to be represented. They are members of the TWU. We believe, under the freedom of association provisions of the Federal legislation in 298A that employees are free to join industrial associations of their choice, or not to join, accordingly. We came here to the Commission twice - actually three times, on 9 June, on 26th August and, again, on 1 September. At those conferences - - -

PN85

THE COMMISSIONER: 9 June, 26 September - - -

PN86

MR PRIOR: 26 August, and again on 1 September. On those occasions, we expressed our intention to represent members. Australia Post expressed its intention that it would not allow us on site to speak to members directly. We indicated that we intended to negotiate, and continue to negotiate on behalf of those members. It ignored our claims and it refused to meet with us on three occasions separate to that. Industrial action occurred on 21 June, 12 June and was again proposed over the 48 hour period commencing at 4 pm on Thursday.

PN87

Commissioner Bacon presided in those matters. To the extent that the Commission can be persuasive without having any direct authority in this day and age, he urged Australia Post to negotiate with us. Australia Post resisted at that point. I thank our learned friend for the explanation that he's given of the most recent Electrolux decision. In the proceedings that are before this Commission, the bargaining period, we say, was competent as at the time it was provided. The notices for industrial action, we say, in each occasion have been competent to the extent that the requirements of the Act are met.

PN88

A 48 hour stoppage was proposed in the most recent notice of industrial action and, indeed, a picket on Wednesday afternoon did occur. The concern that we have, Commissioner, and we would simply say that this is a discretion in this matter, whether you exercise your discretion or not. We would simply say, in terms of what we've heard, they talk - it talks about the capacity of the parties to reach agreement heading towards certification. We say what has taken place, from what we can see, is that the CEPU has met nationally with Australia Post.

PN89

We've been excluded from that. We've not been consulted. Members working in the workplace have not been privy to what negotiations have taken place, what the scope of those negotiations was, whether a draft agreement to that extent had been put out. Again, they were ignorant of the terms in that capacity. We understand what's been said about, I guess, the benefit of hindsight criticism of the bargaining period notice and other matters based on a decision which has now been handed down as recently as last week, but the problem that we perceive in relation to the 127 application is very simple.

PN90

One party has now put out an agreement to another union party. That union, by correspondence of Wednesday's date, have indicated that they have reached an in principle agreement. In terms of what the Act contemplates, it's our belief that, until such time as that agreement is put out to a vote and an application is lodged before the Commission, that we are still entitled to try and negotiate an agreement with Australia Post. So, to that extent, Commissioner, we say, in relation to the 127 order, that you exercise your discretion to that extent not to issue an order because, to the extent that we're still trying to negotiate with Australia Post, we believe that is still a live and valid issue.

PN91

I understand what has been said in relation to our attempts being useless and senseless in their capacity, but we believe it's still a live issue and we're still entitled to negotiate with the company. That is our response in relation to those matters, and the core issue simply is, right throughout these proceedings, that what we wanted and what we've attempted to do is represent those members by speaking to the employer to agitate for terms and conditions of employment and improvements that affected our members. We've been resisted, and we believe we're still entitled, at this stage and in this capacity, to continue to do that.

PN92

THE COMMISSIONER: And I understand what you say in terms of Electrolux being a relatively new decision, but do you have a submission in response to the detail that Mr Martin suggests that, in relation to your notice, Part VC:

PN93

Any other relevant matters affecting the conditions of workers at Australia Post Corporation -

PN94

that particular provision then removes the immunity of your bargaining notice in that, as I understand your submission, it suggests that that would result in a provision in an agreement that would be outside those pertaining to the employer/employee relationship?

PN95

MR PRIOR: The only response I would make to that would be that that bargaining notice has been drafted based on Full Court Federal Court decisions and, to that extent - to the extent that a bargaining notice would, in any sense, be an ambit, it's the ambit that existed at the time when that bargaining notice was issued.

PN96

THE COMMISSIONER: All right. Thank you, Mr Prior. Mr Martin, I might ask you what evidence or information you can provide to the Commission that - that Part VC - that Australia Post, what belief they would have, or confirmation that that would result in a provision that would pertain - would be outside the employer/employee relationship. Has there been any discussions? Is there anything that would confirm that particular provision resulting in such provision in a proposed log or certified agreement?

PN97

MR MARTIN: May I say, with respect, Commissioner, that that is not the question that the High Court said needed to be addressed. It is not whether there might be an agreement which is within the Act because action is taken before an agreement is reached, and action is taken in support of an agreement as put forward by the union.

PN98

THE COMMISSIONER: Where is the understanding that, as you say that agreement put forward by the union, did have an offending provision?

PN99

MR MARTIN: Well, we rely upon the words as they appear in the notice because matters which affect conditions of work at Australia Post go beyond matters pertaining to the relationship of employer and employee.

PN100

THE COMMISSIONER: Isn't it, though, that the High Court also looked - considered that we should take the provision on the face of it. Why should I take that particular provision and form a contrary view that that particular provision will result in a provision in an agreement that falls outside the employer/employee relationship?

PN101

MR MARTIN: You don't - with respect, you don't go that far. You don't need to say, "This will result in" because the action that is taken by a union in support under these - under this procedure that is a - action in support of an agreement is the agreement proposed by the union, and it need not be an agreement which is ever made. There is a substantial amount of industrial action taken around Australia where agreements are never reached, and action is sometimes found to be protected and sometimes found to be not protected.

PN102

So it is, with respect, unnecessary to go that extra step that you're proposing at the moment. One looks at the document and one says, is what they propose - that is, this broad range - an agreement, a broad range agreement that would encompass any other - any other relevant matter? This is no restriction on what is sought there. They do not purport to confine it in any way so that what they are pursuing is an agreement that would deal with any other relevant matter. Now, the fact that they have not said to us or in any other way - - -

PN103

THE COMMISSIONER: They haven't been given an opportunity to say, Mr Martin, have they?

PN104

MR MARTIN: Well, it's quite possible for them to write. I mean, this is in writing. They could have listed, as you will have seen many times, notifications of bargaining periods where items are specifically listed. That could have been done. It's - when an application is made in this way, or when a notification is made in this way, it is not the employer's responsibility to investigate what is being sought. Don't forget, with respect, that we are dealing with another union seeking to have an agreement certified to replace an agreement we've currently got with another union covering all of these things. This is not a situation where you have an employer seeking to avoid union involvement.

PN105

THE COMMISSIONER: All right. Well, Mr Martin, you do still say the - use the words "proposed agreement". Where is it that you say, on the basis of Electrolux, that prior to the stage of a proposed agreement, simply on the face of wording in a bargaining period such as this, that the immunity is lost?

PN106

MR MARTIN: The requirement of the notice and the requirement which is purportedly met, that's set out in 170NJ. 170NJ requires the notice to be accompanied by particulars of the matters that the initiating party proposes should be dealt with by the agreement. So the onus is on the initiating party, which in this case is the union, to set out what it says should be dealt with by the agreement, and it says "any other relevant matter," and that could include matters which go beyond agreements able to be certified and agreements sought to be pursued by protected action.

PN107

For example, a relevant matter affecting conditions of work might be that union representatives be entitled to attend at each workplace on a daily basis. And that all employees be afforded two hours a day to meet with their union representatives. Now, that would not on the reasoning of Electrolux, be a matter pertaining to a relationship of employee and employer. But it would be a matter affection conditions of work.

PN108

The bargaining agents fee itself is an example. A bargaining agents fee would affect conditions of work but the High Court says, is not a matter pertaining - - -

PN109

THE COMMISSIONER: I'm not at crossed purposes with you there, where that was in the body of a proposed agreement.

PN110

MR MARTIN: Yes. The other point that is made, and can I take you to McHugh Js reasons again.

PN111

THE COMMISSIONER: Yes, yes.

PN112

MR MARTIN: Where he criticises the bargaining agent's fee claim itself, at paragraph 82. He says:

PN113

That very claim itself is too general to constitute a matter pertaining to the requisite relationship in Electrolux's workplace.

PN114

So it appears there that His Honour is saying it's too general - a claim of that nature is too general to fall within the requirement of a relationship between employer and employee. Now if the claim made for a bargaining agent's fee is too general, it must be that a claim that the agreement contained any other relevant matter is even more general and falls clearly within the prohibition in Electrolux.

PN115

Commissioner, we'd ask you to take these things into account. The Electrolux case deals with the scheme set up by which agreements are certified and by which parties are able to take protected action, provided certain points are met. And judges recognise that where you are interfering with ordinary contractual rights, the legislation should be read reasonably strictly to ensure that those rights are not unnecessarily thrown to one side.

PN116

THE COMMISSIONER: So on the face of that, to provide an order that would interfere with the notice, if that notice was in fact rewritten to remove the offending provision as you say, Mr Martin, to provide an order of three months would in fact be interfering with that proposed scheme as well, wouldn't it.

PN117

MR MARTIN: No, because this is unprotected action.

PN118

THE COMMISSIONER: Yes, but - - -

PN119

MR MARTIN: And they are entitled, with respect, to take protected action.

PN120

THE COMMISSIONER: All right. So if in fact the union's saying that they've written their particular notice in line with the precedents that were in place at that time, if they were to rewrite it to remove what is suggested as the offending provision that broadens that particular notice so that is inconsistent with Electrolux, then in fact if I were to provide the order, they - it would have no affect on that particular action.

PN121

MR MARTIN: Well, I would rather not give advice to my opponents at the Bar table. There may be ways of doing it. There may be ways of doing it.

PN122

THE COMMISSIONER: I only ask simply that obviously I have an obligation to look at both sides of the scheme.

PN123

MR MARTIN: Of course.

PN124

THE COMMISSIONER: In terms of the taking of protected action.

PN125

MR MARTIN: Yes.

PN126

THE COMMISSIONER: And of that facilitating the encouragement of making agreements.

PN127

MR MARTIN: Quite. And while you're doing that you would have course take into account the progress that's been made with respect to the CEPU agreement. One cannot look at this without keeping that firmly in mind. Because to allow a union to come in and disrupt proceedings, or disrupt the employment, while a sensible set of negotiations is taking place and was proceeding in the normal way for certification, would seem on the face of it to be outside the scheme.

PN128

THE COMMISSIONER: All right. I haven't - and I'm not sure. I think the most that you went to in relation to that, Mr Martin, is that there's been no further response even though you've inquired of the TWU as to what proposed or further action may be threatened.

PN129

MR MARTIN: We sought by letter dated 9 September an immediate undertaking that no further industrial action would take place. No response has been received to that and nothing has been set before you, Commissioner, to suggest that there is any intention not to proceed. Now is the opportunity for the union to say openly in the Commission, "We are not going to proceed". Or, "We will withdraw the notice".

PN130

THE COMMISSIONER: Well, the reason I ask obviously is that's a jurisdictional prerequisite in terms of satisfying whether there is threatened - - -

PN131

MR MARTIN: Quite. And you should be easily satisfied knowing that action has been taken, knowing that we are still within the 48 hour period, knowing that there has been no response either written or verbal, to yesterday's letter, and nothing was said for the union during the submissions made on its behalf today.

PN132

THE COMMISSIONER: Well, perhaps it might be appropriate to ask you, Mr Prior. I know that I think you're still due in another matter, is that correct?

PN133

MR PRIOR: That is correct, yes.

PN134

THE COMMISSIONER: Well, it might be appropriate to ask you in relation to that particular matter as Mr Martin sets out, that they have written to the union, I am being asked to provide an order, there's nothing been said at this stage in relation to - all you've said is that you think the framing of your notice at this stage - I don't want to speak on behalf of the union, but you've acknowledged the Electrolux decision in relation to part 5(c) - sorry, part C(5) of that particular notice.

PN135

MR PRIOR: Commissioner, I'm advised that in relation to the current notice which was put on for 48 hours, commenced Wednesday at 4 pm, and I understand that notice would conclude today at 4 pm. I am advised by the State secretary that it's not our intention to take further industrial action.

PN136

THE COMMISSIONER: Under the basis of that notice?

PN137

MR PRIOR: Under the basis of that notice.

PN138

THE COMMISSIONER: Mr Martin, did you have any response to that, in the basis of your application?

PN139

MR MARTIN: Well, I don't want to get into an argument about present intention and intention in an hour's time. The normal case is if the union is not going to do anything, they either undertake that no action will be taken, or they withdraw the notice. And this business about it's our present - it's our intention not to do something, really doesn't answer the question that the Commission asks. At the moment the union's attitude is that they have the right to represent members, and they are still trying to negotiate.

PN140

They say that the bargaining period was competent at the time it was commenced. Now, we of course say it wasn't. But you are still being given only a glimpse of what they're talking about. You're not being given anything concrete. They should really say, "We will not, and we undertake not to". Or, "We withdraw the notice". Just saying, "We don't intend to do it", doesn't mean very much because intentions can change.

PN141

THE COMMISSIONER: Well, Mr Prior, I'm simply asking these questions of you. I'm not expecting a particular result. I'm simply wanting to assess this matter in the appropriate knowledge. I think you have made a concession on behalf of the union in relation to your bargaining notice. I've made no determination as such at this stage. I'm aware that you're required in another matter. So that all the parties here can be clear before you and Mr Williams have to leave, I would like to know the position of the union in relation to that, this particular notice and this particular occasion.

PN142

MR PRIOR: Thank you, Commissioner. I've just conferred with the State secretary, and I can reiterate that there is no intention to take industrial action under the guise of this notice.

PN143

THE COMMISSIONER: All right, I think Mr Martin was - and this is not the position of the Commission. But Mr Martin has indicated that for the satisfaction of Australia Post, they are expecting since that is your answer, a withdrawal of that particular notice.

PN144

MR PRIOR: On that basis, Commissioner, our position would simply be that we would be quite prepared to withdraw the notice on the basis that we have an expectation of some input into a proposed agreement.

PN145

THE COMMISSIONER: That's negotiation, Mr Martin. Mr Martin, I'm not sure if you wish to respond at this stage.

PN146

MR MARTIN: I'm sorry, I missed that, last - - -

PN147

THE COMMISSIONER: I'm not sure, are you wishing to respond to that?

PN148

MR MARTIN: Well, that's really putting the Commission over a barrel by saying, "Look, we'll do it if Australia Post does something."

PN149

THE COMMISSIONER: I'm not sure it's putting the Commission over a barrel, Mr Martin.

PN150

MR MARTIN: Well, putting somebody - there's a barrel somewhere.

PN151

THE COMMISSIONER: It's been tossed to you at this point, Mr Martin.

PN152

MR MARTIN: Yes. Our attitude has been made quite clear. I'm just reading some instructions. Well, can I just have two minutes.

PN153

THE COMMISSIONER: Yes.

PN154

MR MARTIN: Commissioner, my instructions are these, that an offer was made in a telephone conversation between Catherine Walsh and Hughie Williams that he could put what he wanted to put in writing and that would be put before the negotiating committee.

PN155

THE COMMISSIONER: Is that what's part of that affidavit?

PN156

MR MARTIN: No, it's not.

PN157

THE COMMISSIONER: I haven't looked at that.

PN158

MR MARTIN: And this has been raised at conciliations before Commissioner Bacon. The point is that an invitation was provided to the TWU to put something in writing to Australia Post and that has not yet been responded to.

PN159

THE COMMISSIONER: And that's it, Mr Martin?

PN160

MR MARTIN: That invitation hasn't been responded to.

PN161

THE COMMISSIONER: All right. Mr Prior?

PN162

MR PRIOR: The only response I'd make, Commissioner, is that in principle that's not the way we respond.

PN163

THE COMMISSIONER: In writing?

PN164

MR PRIOR: No, we respond in writing, but we've been negotiating since April to try and sit at the negotiating table with the other parties as a party to a workplace agreement, and we've not been successful.

PN165

THE COMMISSIONER: Well, was there an invitation put to you to put your claim in writing?

PN166

MR WILLIAMS: Yes, Commissioner, it was indeed, but I think for us to be able to negotiate an enterprise agreement, to have some input into that agreement, it's not the right way to go about it as to write letters. We've been negotiating enterprise agreements for many years now, but never been told by any employer where we have members that we should put something in writing. We should be able to sit down at the consultative committee table and negotiate any matters that our members want us to put forward. That hasn't been permitted to us, nor have we at any times been able to have any negotiation whatsoever.

PN167

THE COMMISSIONER: Well, the initial negotiation that was put was one about - to satisfy the Commission in relation to the definition of industrial action in this particular matter, and I'm not quite sure what the response got to there, Mr Prior, because I think you indicated that at this stage the union under the current notice - and I'm simply putting this back to you for clarification - is not intending to take any industrial action.

PN168

MR PRIOR: Under the current notice, no.

PN169

THE COMMISSIONER: But as I understand it, Mr Martin asked you to go further and to withdraw that particular notice and on the basis that you would be given the ability to attend and negotiate and I understand that that offer was put to you to put it in writing. I understand that Mr Williams pursuit is to sit at the table and I'm not sure if that was actually denied but at this point I need clarification of that position - that as far as you're taking it is that no industrial action would occur under that particular notice but it still stands.

PN170

MR PRIOR: I understand. That is my understanding, Commissioner, and in response to would we withdraw the notice, we would withdraw the notice with the ability to sit at the table to negotiate an enterprise agreement with Australia Post.

PN171

MR WILLIAMS: Commissioner, may I just add to that. We'd be quite happy to withdraw that application provided Australia Post gave us the opportunity of being in some way on that negotiating committee to come back with an outcome for the quite large number of members that we do represent.

PN172

MR MARTIN: The only response we make, Commissioner, is that the invitation was to put whatever the TWU wanted to put in writing. That's still open, but we won't go any further than that.

PN173

MR WILLIAMS: Commissioner, it's very difficult for us to put something in writing when we haven't had - we're not privy in any way to the original document that has been proposed or any such matters, nor have any of our members been privy to any of those matters that may be contained in that proposal.

PN174

THE COMMISSIONER: Well, Mr Williams, I understand the predicament that your union is in, and whilst I have not been privy obviously to the dates that you refer to where you've been before Commissioner Bacon, I understand from the generalised submission that Mr Prior has made that obviously they were disputes in relation to bargaining in good faith, so I assume that there has been a full discussion about what the union sought and what they were seeking from Australia Post in relation to those matters at that time.

PN175

So this is not a dispute conference in relation to the nature of those negotiations and the Commission has limited powers in compelling negotiations in a particular way and I'm sure that that was discussed at that particular conference. So I'm aware that you are required before Commissioner Hoffman. I'm not sure that there's anything further that we can take in terms of these particular submissions. You've clearly put before me that no further industrial action is to be taken in relation to this particular notice.

PN176

MR PRIOR: That is the instructions that I've just been given in that regard, Commissioner.

PN177

THE COMMISSIONER: All right. I think you've been issued with your own order by Commissioner Hoffman, Mr Prior.

PN178

MR PRIOR: I believe I may need to absent myself and I apologise for the need to.

PN179

THE COMMISSIONER: All right. Well, is there anything further the parties wish to put before me at this time?

PN180

MR WILLIAMS: We've got nothing further, Commissioner, of any great extent.

PN181

THE COMMISSIONER: All right. Mr Martin, given that in relation to the definition of industrial action there seems to be the union's clear position that there is no threatened or intended industrial action at this particular point, it may be that I will consider this particular matter. If in fact - and issue a determination, but if in fact that situation were to change, that industrial action was threatened or in fact was to occur, then I would bring this matter back on at very short notice.

PN182

MR MARTIN: Thank you, Commissioner.

PN183

THE COMMISSIONER: Mr Williams, you're aware of that?

PN184

MR WILLIAMS: Yes, Commissioner, yes.

PN185

THE COMMISSIONER: All right. On that basis I'll adjourn.

ADJOURNED INDEFINITELY [12.20pm]