C2004/5994, Transcript of Proceedings [2004] AIRCTrans 4050 (21 October 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 8700
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER MANSFIELD

C2004/5994

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

and

TXU AUSTRALIAN SERVICES PTY LTD

Notification under section 99 of the Act
of an industrial dispute re the alleged
removal of vehicle entitlements

MELBOURNE

3.00 PM, MONDAY, 11 OCTOBER 2004

Continued from 28.9.04 not transcribed

PN1

THE COMMISSIONER: There is no change in appearances from previously, Mr Hayes, Mr McTaggart and Mr Troy. Mr Hayes, you asked for this matter to be brought back on.

PN2

MR W. HAYES: Thank you, Commissioner. The issue from where we left it at the last hearing is that it was my understanding the company were to come back to the union after we notified - after the company had been notified, both by myself and employees, that there was a dispute over the issue of vehicles. The company were to come back to me with a response to the concerns that have been raised.

PN3

THE COMMISSIONER: Yes.

PN4

MR HAYES: Or the allegations. I was informed by some members last week that the company, since the last Commission hearing, had gone out to them and tried to coerce them into accepting offers. Once again, I wasn't made aware of this. I spoke to the company. They indicated that they have a right to talk to their employees. I indicated to them that given that the matter is subject to a dispute consistent with the disputes procedure, and I can go into that detail if I need to, there should be a status quo until such time as the company has spoken to the union, or certainly, as a matter of courtesy, responded to the union since our last Commission hearing so we can try and resolve this, and the company's position still is that they have a right to talk to their employees. It is my understanding the employees have rejected all the offers that have been put them and they are awaiting instructions from their union on the matter.

PN5

THE COMMISSIONER: Is it the reverse, Mr - - -

PN6

MR HAYES: Well, they wanted to know what had occurred in terms of the hearing, which I had expressed to them.

PN7

THE COMMISSIONER: Yes.

PN8

MR HAYES: And I said to them, well, I was awaiting a response from the company.

PN9

THE COMMISSIONER: Yes.

PN10

MR HAYES: So if you are telling me you are not accepting their offer - - -

PN11

THE COMMISSIONER: No, no, no. I just - picking up on your point, Mr Hayes, that they were awaiting instructions from the union as to - yes.

PN12

MR HAYES: Yes, in terms of the Commission hearing that occurred last time.

PN13

THE COMMISSIONER: Sure.

PN14

MR HAYES: So I explained to them and they said, well, we are not happy with what the company is offering.

PN15

THE COMMISSIONER: Yes, and they are saying to you go back and - - -

PN16

MR HAYES: Go back and renegotiate it.

PN17

THE COMMISSIONER: - - - see what the company is up to.

PN18

MR HAYES: I am attempting to do that with the company, but they are flouting the disputes procedure.

PN19

THE COMMISSIONER: Yes.

PN20

MR HAYES: If I can't get any resolution or commitment from them today on a process to try and sort this out we will have to lodge an application which will seek some orders against the company, preventing them from going outside the disputes procedure.

PN21

THE COMMISSIONER: Good. Thanks, Mr Hayes.

PN22

MR HAYES: If the Commission pleases.

PN23

THE COMMISSIONER: Well, Mr McTaggart, Mr Hayes is saying that the company has been out encouraging individuals to take certain proposals that you are making, whatever they might be, to get this matter settled. Now, is that the case? Mr Hayes is saying also that the individuals are not really amenable to any of the proposals that have been made, and he is seeking that the union get some response from the company as to what it is able to do in this matter, because - I have actually brought the wrong file in but I am just going to get it now, but I will just have a quick look at the notes I made at the last hearing. I think that was the arrangement, that TXU was going to respond to the union about the way the matter might be addressed.

PN24

MR McTAGGART: We have spoken to our employees, Commissioner, on this matter. We have also done some research on who the - who has a permanent job and who doesn't have a permanent job in that field. Of the four names that were raised at the last hearing, one of the gentlemen concerned, he is seconded to the role. He is not a permanent and has not received any of - any letters in writing to say that he could have the car. The other three have letters, and we went back to our employees with an offer. Yes, we did. We thought that was an appropriate method to try and get this resolved without going through a third party, and dealing directly with our employees.

PN25

THE COMMISSIONER: Well, not really, Mr McTaggart, quite frankly. This matter was raised by the union on behalf of the employees. I would have thought that the most appropriate thing to do would be for TXU to at least initially go back to the union that raised the matter on behalf of the individuals, and talk to the ETU about certain proposals that you might have. Now, it came in here as a matter on behalf of individuals, and personally, I don't think it is appropriate - this is my view. I don't think it is appropriate for the company then to go back and speak to individual employees about the way in which this matter might be responded to. That is - I am just saying that is my view and - but I hear what you say.

PN26

You know, companies have every right to talk to their employees. No doubt about that. But I would have thought the process should have been firstly to discuss it with the ETU, make it clear to the ETU that you intend to go out and talk to your individual employees if you wish. But I am sure Mr Hayes probably didn't know about it until - well, I get the impression Mr Hayes didn't know about it until probably individual members started ringing him up and saying, "Well, what is happening? We are getting these proposals put by the company."

PN27

MR McTAGGART: And that appears to be the case, yes.

PN28

THE COMMISSIONER: Yes. Well, having made that point, where are we with it, Mr McTaggart?

PN29

MR McTAGGART: Well, we are still considering where we would go to next. We have some other ideas about how to resolve this matter.

PN30

THE COMMISSIONER: Yes.

PN31

MR McTAGGART: Again, our preference is to talk to - directly to the employees about their concerns and their issues. Happy to put Mr Hayes back in the loop if that is where we should be.

PN32

THE COMMISSIONER: Well, the note I have got here, the final two lines says:

PN33

GMC to investigate and get back to WH by the end of next week.

PN34

That was the undertaking we all - - -

PN35

MR McTAGGART: I didn't have that.

PN36

THE COMMISSIONER: - - - reached at the last - - -

PN37

MR HAYES: That is what you told me.

PN38

THE COMMISSIONER: And that was on the 28th.

PN39

MR McTAGGART: Okay.

PN40

THE COMMISSIONER: It was on the 28th.

PN41

MR McTAGGART: That is certainly not in my notes so, but that is, you know, I have probably missed it so - that is okay.

PN42

THE COMMISSIONER: Well, that is my note.

PN43

MR McTAGGART: No, that is okay.

PN44

THE COMMISSIONER: But, you know, accurate.

PN45

MR McTAGGART: I take your - - -

PN46

THE COMMISSIONER: No. I wouldn't - - -

PN47

MR McTAGGART: No, no.

PN48

THE COMMISSIONER: I wouldn't assume that, but - - -

PN49

MR McTAGGART: Well, I have got Mr Hayes - - -

PN50

THE COMMISSIONER: That was written immediately after the hearing finished.

PN51

MR McTAGGART: No, Mr Hayes has got the same, but that certainly wasn't in my notes and because it was conference I didn't take - - -

PN52

THE COMMISSIONER: Yes.

PN53

MR McTAGGART: - - - excessive notes on it.

PN54

THE COMMISSIONER: Sure. But in my view what should happen in this matter is that TXU should provide a response to the ETU on the matter which the union has raised. Are you in a position to do that today, Mr McTaggart?

PN55

MR McTAGGART: We can certainly talk about what we have got on the table currently.

PN56

THE COMMISSIONER: Yes.

PN57

MR McTAGGART: And we have got other ideas about how to resolve the matter. So I am happy to talk about that in conference, if Mr Hayes so desires.

PN58

THE COMMISSIONER: Sure, and do any of those options include leaving the vehicle with the individuals?

PN59

MR McTAGGART: No.

PN60

THE COMMISSIONER: They don't?

PN61

MR McTAGGART: No.

PN62

THE COMMISSIONER: So you are probably talking about some option which - - -

PN63

MR McTAGGART: Compensation.

PN64

THE COMMISSIONER: - - - basically refers to compensation.

PN65

MR McTAGGART: Yes.

PN66

THE COMMISSIONER: Yes. Okay. Well, do you want to go into conference for a little while.

PN67

MR HAYES: Can I just put one more thing on the record, Commissioner?

PN68

THE COMMISSIONER: Yes.

PN69

MR HAYES: Commissioner, just in response to that, you are correct. The company did agree to come back to the union in response to the matter that was in dispute. It was not inconsistent what either yourself saying or what we are saying with the disputes procedure. All the steps within the disputes procedure under the current agreement, TXU Enterprise Agreement 2002, do say that any dispute or grievance must be dealt with between the employee and the company, and then goes into the process of the shop steward can be involved in that process. It does talk about if there is still no agreement that the issue referred to a joint manager with the industrial relations responsibility and the relevant union official, which had been done.

PN70

If the matter was still unresolved we would go the Commission, which occurred last week. If the matter was - while the matter was still unresolved the status quo was to apply on a without prejudice basis; and effectively the company, in this instance, after the matter was raised as a formal dispute went outside of that and went to the employees behind the union's back without notifying the union that they were trying to settle that, consistent with the disputes procedure. Now, one of the matters that the company were to investigate was whether or not people were entitled to the vehicles, and obviously I take it the fact that the company has offered a financial settlement to these people, that they have obviously established that they were entitled to the vehicles and it was part of their conditions of employment. So I am glad that matter is resolved. It is just a question now of - - -

PN71

THE COMMISSIONER: I am not quite sure it has been resolved as clearly as you have stated, Mr Hayes, but - - -

PN72

MR HAYES: Well, I am assuming they wouldn't have offered them any money if they didn't think the vehicle was - - -

PN73

THE COMMISSIONER: Well, they might - the company might think it is simply arguable, so - - -

PN74

MR HAYES: Well, they should - well, they will know how to argue that, I suppose, if they want to. But as far as our members are concerned, the instructions they have given me is that they want to retain the vehicles as they have, as that condition has existed for the last - - -

PN75

THE COMMISSIONER: Is there any suggestion, Mr Hayes, that the company is - have the vehicles been taken back from the individuals at this point?

PN76

MR HAYES: Well, they have. That is why it is a very sensitive situation. The terms upon how the vehicle is used has been changed. I am not saying it has been removed entirely, but certainly it has been altered to the detriment of our members.

PN77

THE COMMISSIONER: Yes.

PN78

MR HAYES: So I am happy to listen to any offers that the company is prepared to put forward, but the instructions I have from the members are that they want to maintain the existing - the arrangement that was in place before the company forwarded - sent out e-mails in July, notifying the employees that they had lost their right - - -

PN79

THE COMMISSIONER: But if one of your members had a vehicle previously - - -

PN80

MR HAYES: Yes.

PN81

THE COMMISSIONER: - - - do they still have a vehicle?

PN82

MR HAYES: Some of them - my understanding is some of them have a vehicle but it has alterations to the condition upon which they can use it.

PN83

THE COMMISSIONER: So no private use or something perhaps, or - - -

PN84

MR HAYES: Yes. It varies from each individual to each individual.

PN85

THE COMMISSIONER: Right. Yes.

PN86

MR HAYES: But there is certainly a change to what they had prior to the company's e-mail. Hence the dispute, if the Commission pleases.

PN87

THE COMMISSIONER: Good. Yes, thanks, Mr Hayes. Good. Look, we will go off the record into conference and see if we can make any progress.

NO FURTHER PROCEEDINGS RECORDED