C2004/1271, Transcript of Proceedings [2004] AIRCTrans 416 (3 February 2004)

AUSCRIPT PTY LTD
ABN 76 082 664 220

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TRANSCRIPT OF PROCEEDINGS

O/N 10779
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

DEPUTY PRESIDENT IVES

C2004/1271

APPLICATION FOR AN ORDER TO STOP
OR PREVENT INDUSTRIAL ACTION

Application under section 127(2) of the Act
by Carlton and United Breweries Limited re
industrial action

MELBOURNE

11.00 AM, WEDNESDAY, 21 JANUARY 2004

PN1

MR J. TUCK: I seek leave to appear on behalf of the applicant.

PN2

MR J. HIGGINS: I appear on behalf of the LHMU.

PN3

MR R. WAINWRIGHT: I appear on behalf of the Construction, Forestry, Mining and Energy Union.

PN4

MR B. O'BRIEN: I appear for the Australian Services Union.

PN5

THE DEPUTY PRESIDENT: Any objection to leave?

PN6

MR WAINWRIGHT: We don't object, your Honour.

PN7

THE DEPUTY PRESIDENT: Thank you. Leave is granted, Mr Tuck.

PN8

MR TUCK: Thank you, your Honour. Your Honour, do you have before you a copy of the application?

PN9

THE DEPUTY PRESIDENT: Yes, I do.

PN10

MR TUCK: Your Honour may benefit from a brief outline if I may of the background to the issues as the company sees them. The application is brought in respect of industrial action that has been occurring at Altona and Abbotsford, both sites of CUB. Altona is a distribution centre and Abbotsford is the brewery. Each of the unions have members at Abbotsford and the CFMEU effectively cover the Altona site.

PN11

The industrial action which has taken place to date has been in the form of stopwork meetings. There was 90 minutes stopwork meetings last week, last Thursday, during each shift. There is three shifts: day, afternoon and night at the brewery and at the distribution centre. The company was notified that there would be stopwork meetings today at Abbotsford. The first of those stopwork meetings has taken place and time was again lost this morning at the end of the night shift. The next - - -

PN12

THE DEPUTY PRESIDENT: How much time this morning, Mr Tuck?

PN13

MR TUCK: Approximately one hour. The next stoppage is due at 1.30 - 11 am, sorry. We anticipate that is happening now in relation to day shift. And there will be a further stoppage which we have been notified to occur at 3.30 pm for the afternoon shift. On history we anticipate that it would last an hour to an hour and a half, each of those stoppages. Your Honour, there is certified agreements that were certified by the Commission last year in respect of each of these unions. The nominal expiry dates of those agreements are 2005 and 2006.

PN14

The underlying issue is an issue about the proper amount to be paid in respect of electronic funds transfer allowance which was mentioned in clause 16 of each of the relevant agreements. There is a disputes resolution procedure in each of the agreements. And there is no basis upon which the unions can notify the company that they will simply take industrial action at their whim and stop work. There is a significant cost to the company at the loss of each hour of production. If the industrial action goes ahead as notified today, the cumulative costs of these stoppages will be in approximately 100,000 cartons. Now, that is production that does not get made up at this time of the year and so that is just pure loss.

PN15

Now, there have been meetings between the company and the unions since December last year in respect to this issue. The company has written to the union offices in respect to this issue and has not received a response. So from the company's point of view, we have an underlying issue that is not agreed. There is a procedure in the agreements to seek to reach agreement on the review of that allowance. The company wishes to do so. The company is happy for the Commission to be involved in seeking to resolve that underlying issue, whether it be by conciliation or, if necessary, arbitration. But in the meantime the company seeks the assistance of the Commission to stop the industrial action that is occurring.

PN16

There has been a history, we would say, in respect of the LHMU in particular in relation to Mr Wiseman, an organiser, and Mr Fountain, the delegate on site that stopwork meetings are a right that they have to call whenever they wish. Now, in a section 127 application in 2002 Mr Fountain and Mr Wiseman on transcript indicated that was their view. Mr Fountain, you may recall, was a person who the company terminated around that time. Mr Fountain is again now expressing the view, we say, that there is an entitlement to simply pull people off the job if you have an issue and you want to talk about it.

PN17

The company has made an offer to the union for the delegates to take a whole shift to consult with their members and the company was happy for Mr Fountain and other delegates to take a whole shift to consult on this issue if they wished to. They have ignored that and they have taken people off. They have notified the company again of stopwork meetings today. The company is concerned that these stopwork meetings will continue until the issue is resolved. The company is happy to have the issue resolved with the assistance of the Commission but, in the meantime, we seek first assurances that there will be no industrial action taking place at Abbotsford or Altona. And if the union is not prepared to give that commitment, they will call off the industrial action and the company will press for orders per the application, your Honour.

PN18

THE DEPUTY PRESIDENT: Yes, thanks, Mr Tuck. Mr Tuck, would you mind just elaborating a little about the basis for the dispute between the parties. I did read in the agreement that there is a review of a particular allowance.

PN19

MR TUCK: It might be easier - - -

PN20

THE DEPUTY PRESIDENT: I don't quite understand what the basis for the allowance is or what the basis for the review is.

PN21

MR TUCK: I will give you a - I will hand to you a copy of each of the respective agreements. Your Honour, if I just take the first agreement, being the LHMU Enterprise Development Agreement 2003, and take you to clause 16.

PN22

THE DEPUTY PRESIDENT: Yes.

PN23

MR TUCK: Clause 16.1 says:

PN24

A review of the electronic funds transfer allowance will occur prior to payment in January each year. The present allowance will continue unless otherwise changed through the review mechanism.

PN25

And it then offers in 16.2, the company offered to pay that allowance out. That offer to pay out appears in the LHMU agreement and the ASU agreement but not in the CFMEU agreement.

PN26

THE DEPUTY PRESIDENT: So presumably there is an allowance that is paid on a weekly or pay period basis to employees - - -

PN27

MR TUCK: An annual basis, your Honour. Now, I will just hand to you the initial agreement from 1990. The electronic funds transfer allowance was introduced when the company moved from cash payments to electronic funds transfer by way of payment of salary. Your Honour, that document sets out in the first two paragraphs we would say the basis upon which the allowance is being paid. It then sets out some mechanisms with respect to as it was in 1990 what was anticipated to be the additional banking costs to be covered. At that time it was $11 plus the 20 withdrawals per three monthly period.

PN28

That is, in essence, the origin of the electronic funds transfer between the parties. It arises because of the additional costs relating to payment of wages electronically rather than in cash. The costs of people operating bank accounts then was an allowance that the company pays. The company now says, and its position is that this review ought to be setting the allowance at $60 because $60 will give you an account which has unlimited transactions and $60 will cover the account keeping fee for the year. There has been changes to the banking charges over the last 14 years. That is the position.

PN29

Now, the unions take a different view about people who have passbooks, about the costs of those passbooks and operating those passbooks, but that is the underlying issue as to what the allowance should be. The company is happy to put its position and seek to resolve the matter between the union in itself and, if it can't be resolved, it is happy for the Commission to resolve the issue for the parties as to what the appropriate allowance should be.

PN30

THE DEPUTY PRESIDENT: Yes. You don't need to go into further detail at this stage, Mr Tuck. I just wanted to know what was at the basis of the dispute.

PN31

MR TUCK: The only other relevant clause, your Honour, is the consultative process in clause 8, and then clause 9 which is the dispute settlement procedure.

PN32

THE DEPUTY PRESIDENT: Yes. And just one other question in respect of that allowance, given that there has been an opportunity for people to accept a lump sum payment in lieu thereof, how many employees continue to receive the allowance?

PN33

MR TUCK: Pending the outcome of this dispute, it hasn't yet been offered so the - - -

PN34

THE DEPUTY PRESIDENT: Right.

PN35

MR TUCK: The employees are still on the allowance as opposed to taking up any offer that the company has made.

PN36

THE DEPUTY PRESIDENT: Yes, thank you. Thanks, Mr Tuck.

PN37

MR TUCK: If your Honour pleases.

PN38

THE DEPUTY PRESIDENT: Mr Higgins.

PN39

MR HIGGINS: Yes, sir. Thank you, your Honour. Look, the outline that has been given to you by Mr Tuck I don't disagree with totally, how it has come about, but there is a number of clarifications I wish to make and that is that how we got to this situation was a number of stopwork meetings, as was indicated. As a report back on the company's new offer, if you like, or supposed offer of $60, the current EFT allowance at present is 101. There is a clause, as has been pointed out, that there is some consultation to determine the future of the EFT allowance, or whatever that outcome may or may not be.

PN40

There was a report back which the company was informed of, a resolution taken; work would continue up until today. There would be a meeting with the company to try and resolve the issue, and a report back to the members today. I was at a meeting - I attended a meeting along with the other two unions' delegates on the 19th, just a couple of days ago, where we had some discussions and there was an indication by the company, rightfully so I guess from their point of view, that, you know, there was a pending industrial action. We disagreed with that and said that that is not the case: we are here to discuss the issue and want to continue to discuss the issue and get a resolution, and report back today's date, being the Wednesday.

PN41

The company then unfortunately, in my view, had indicated that, you know, they - as has been pointed out to your Honour this morning, they were a bit concerned about future industrial action, etcetera. And they said they didn't want, you know, didn't want to be in this position with a scheduled stopwork meeting for today. The meeting was, in fact, for a report back under the disputes settling procedure, or took a little bit further being a national industrial officer, spoke to some senior people at CUB and indicated that if we had a meeting yesterday at 5 pm with all the parties concerned we may be able to resolve the issue and, therefore, that meeting may not be called as a stop work meeting, as such. We could, in fact, perhaps if we had a resolution that was acceptable by both parties, including the other unions concerned as well, we would reconsider that position and have a look at trying to report back in another way other than having a stopwork meeting.

PN42

However, the threat from the meeting of the 19th was, as far as we are concerned it is just going to the Commission and there is no discussion whatsoever. That is a bit unfortunate, as I saw it, but that has brought us to where we are today from the LHMUs point of view. The other unions can speak for themselves but I am pretty sure that the resolution that was put up originally, which the company has a copy of, was from the whole three unions combined and that is the process - that is where we are at at the moment.

PN43

We believe that the company should not put another figure on the table of $60. The starting point at present is $101, and that is where we seem to disagree. There has not been a proper consultation and review because it is only - the company has had their consultation and their review, and they have come up with $60. We haven't been involved in that. And that is where we are at the moment. We are prepared to sit down and discuss the issue but the starting point is $101, not 60. Where the 60 has come from nobody seems to know, only - - -

PN44

THE DEPUTY PRESIDENT: Yes. Well, the starting point - and probably the finishing point for these proceedings, Mr Higgins - is whether or not an order should issue under section 127 of the Act to prevent further industrial action. And it is at that point that I am more interested in at this juncture of the proceedings. Did the company advise you prior to the taking of this - or prior to these report back meetings, as you have called them, that it didn't authorise these meetings?

PN45

MR HIGGINS: Well, I have got to say, your Honour, I am not a hundred per cent sure on that. I certainly didn't get any notification. It has been the Christmas - I am not sort of going for breaks here, but it has been the Christmas period and there has been a number of people away. So I am not sure, I would have to rely on - I don't know if any of the others have had any indication that those - well, those meetings took place. I, in fact, attended two of them myself and I was led to believe the company certainly were aware, and they would have been informed that those meetings were taking place as a report on the company's proposal on the EFT allowance.

PN46

THE DEPUTY PRESIDENT: Well, you would certainly be aware that - in respect of the meeting that took place this morning and the one that is apparently taking place now that those meetings are taking place without the authorisation of the company, and the company's view that that represents unlawful action on behalf of your members.

PN47

MR HIGGINS: Well, as I say, your Honour, once again that the company has informed of, you know, a proposed stopwork meeting today as a report back on this issue. The reason I guess that the report backs are now taking place earlier because of the discussion that took place yesterday, or the breakdown of the discussion that took place last night and I understand - - -

PN48

THE DEPUTY PRESIDENT: But I don't quite understand, Mr Higgins, is you said to me that if - at least as I understood you, and I may not have understood correctly but if I haven't, no doubt, you will set me right; that if discussions could have continued to some resolution with the company, that you would perhaps then have explored different ways of reporting back to your membership without disruption to normal operations.

PN49

MR HIGGINS: I gave that indication that we would consider that, subject to the outcome of the discussions or the consultation on the outcome of the EFT which is the only issue at hand.

PN50

THE DEPUTY PRESIDENT: Yes, but if it was possible to report back differently without disruption to operations, given that there was some sort of a consensus reached between the company and the unions, why wasn't it equally possible to report back without disruption to the operations in the extant circumstances, ie with no agreement between the parties? I mean, I am not quite sure whether what you are reporting back governs the way you report it back.

PN51

MR HIGGINS: Well, what - I will try and clarify it as best I can, your Honour, and that is my understanding of it is that what is reported back - and the meetings were called - they needed a decision because the offer from the company has vastly reduced from $101 which everyone assume would be the starting point to $60. That is what the company had indicated to all delegates concerned, and that is what had to be reported back to the membership, and that was done. And the process was put in place after that. We would go back to the table and try and resolve it, and that is where things were left. There was a resolution that said there would be a report back on Wednesday giving the company and the unions adequate time hopefully to discuss the issue.

PN52

THE DEPUTY PRESIDENT: So what happens now, Mr Higgins, given that there is no resolution of the issue?

PN53

MR HIGGINS: Well, we are still - as we see it, your Honour, we believe that we should be able to resolve the issue and report back to the members in whatever necessary way. Now, if it is a resolution I guess that everyone is pretty comfortable with, we would assess that situation and decide collectively how we would report back to the membership.

PN54

THE DEPUTY PRESIDENT: Well, if it is a resolution that you are not particularly comfortable with or, in fact, no resolution at all, you are saying that then you would continue with the sort of action that is currently being taken.

PN55

MR HIGGINS: Well, I can't - and I am certainly not going to say that here today, I am not too sure - we haven't heard what the company are prepared to do other than the $60 that is put on the table. Our position is we have a starting point of 101 which is already being paid.

PN56

THE DEPUTY PRESIDENT: Yes. That is the matter that is in dispute between the parties that underlies this application by the company. But at the moment what we are really talking about is, as I said at the outset, whether or not this Commission should issue an order to prevent further industrial action. I am just trying to ascertain from you what the position of - at least as far as you can tell me, what the position of the membership and of the union is to that because it would seem to me that if you are saying to me, well, depending on what the company says, if they agree with us in terms of this allowance then we will have some report backs which won't disrupt them; but if they don't agree with us in terms of this allowance, we will have some report backs that do disrupt them. That is the way I am reading you, and if that is the case then that may well favour the granting of the order.

PN57

MR HIGGINS: Yes, I understand that, and that is not what I am indicating. What I am indicating to you is that generally - and I think the company would be aware of this - that the collective shop committee or whatever it is called, the termination of the discussions. Usually when there is an agreement or pretty much an agreement there, it is a simple process of reporting back which would be acceptable, more likely an outcome would be acceptable other than the fact that when the company had changed the 101 to the $60, this is what has escalated it and that means then you need the majority of the membership collectively to determine whether that is going to be acceptable or not. And that is the situation that we are in. I guess that is where the impasse is at the moment. I hear where you are coming from. We are trying to be as flexible as we can. We considered yesterday, and we still are today, we are prepared to sit around the table and try and resolve the issue as soon as possible. How we report back to the membership I guess is something that can be determined at the end of the day, given the fact that, you know, the decision or the offer or the situation of the EFT allowance is resolved. That is really where we are coming from.

PN58

THE DEPUTY PRESIDENT: Yes, thanks, Mr Higgins. Yes, go ahead, Mr Wainwright.

PN59

MR WAINWRIGHT: Thank you, your Honour. The view of the CFMEU in regards to this application somehow relates to the process of us receiving the application and our ability to be instructed on what the current circumstances are at the two sites at Altona and Abbotsford. The first thing I need to make clear to your Honour is that the CFMEU members, to the best of my knowledge, who are employed at CUB are members of the FEDFA Division, the old Federated Engine, Fire and Drivers Association, and that union occupies one office on Berry Street. And as you are probably aware, your Honour, the Construction and General Division occupies a separate office in Swanston Street; and Mr Tuck has had many dealings with us on many happy occasions.

PN60

The notices for this application have been forwarded to the Construction and General Division in Swanston Street. We have received a fax; the header says 5.35 last evening. And we have received your listing which I think went on to around about 6.30 to come here today. And, as is our normal practice, we do what we can to assist the Commission but I need to inform you, your Honour, that I have been appearing today in two separate matters; I have been appearing next door with Commissioner Whelan and downstairs with Commissioner Grainger. And the other industrial officer we have at the CFMEU, Mr Maddison, has likewise been appearing all day. So we have been in a situation where it has been impossible for us to get any instructions in relation to this application, both our unavailability due to other commitments and the mistake made by the applicant in sending the paperwork to the wrong address has led to that circumstance.

PN61

So I certainly can't say anything to you about the allegations that have been put by Mr Tuck of industrial action. I don't know if the meetings were agreed between the employer and the employees. I don't know if they were report back meetings. I don't know if they were stopwork meetings. I don't know if they were picnics. I have no idea. I have no instructions. What I can say to you is - - -

PN62

THE DEPUTY PRESIDENT: You don't know if they occurred at all, Mr Wainwright.

PN63

MR WAINWRIGHT: I don't know if they occurred at all. We are told - I can only go on what Mr Tuck has said and what he has been put on the table thus far, and that is what I intend to do. What Mr Tuck has said is that there is a meeting going on now involving our members, we presume, at Abbotsford; at least it seems from what he has put. Well, I have just met up with our organiser and our shop steward before we came in here. I think we started at 10.30, didn't we? At 11 o'clock. I just met up with them then. They are here, they are in the body of the Commission. They are not at a stopwork meeting. So as far as orders against the CFMEU, we say to you these things: the CFMEU is entitled to know what case has been made against it; the CFMEU is entitled to receive adequate instructions to defend any allegations that have been made against it.

PN64

The documentation that has been lodged with the Commission includes assertions from the applicant in the grounds of what has occurred but it certainly doesn't put us on notice as to what any evidence is of that. There are no witness statements attached, for instance. So there is no real meat that allows us to go and get instructions on these issues. And obviously it may be your view during the course of the day that we can do that on the run while we are here. But as for the here and now, I have no instructions and I can neither confirm nor deny any allegations that are made by Mr Tuck of industrial action other than to say to you that they are nothing more than assertions from the bar table and clearly do not constitute evidence. So that I think deals with, as far as I can at the moment, any allegations of industrial action.

PN65

Mr Tuck has been good enough to table the agreement that the CFMEU has with CUB, that is relevant. And he points you to the EFT clause at clause 16 and he says, well, that is the review that is in place. And you have heard that the current EFT allowance is $101, and then there is this provision in the agreement. And Mr Tuck has pointed out, your Honour, that the CFMEU agreement is different to the other two agreements which certainly suggest to me, and it is another issue on which I will get some instructions, that that must be an issue that is of some special importance for the CFMEU members on the site. If they have a different provision to that that the other two unions have put in to their agreements, there is obviously some reason attached to that.

PN66

But what Mr Tuck hasn't done is point you to other parts of the agreement that I have had the opportunity to have a look at since he has tabled it and I would ask you, your Honour, to have a look at clause 6, the objectives of the agreement, and the last sentence is fairly interesting where it says:

PN67

No employee will suffer a reduction in any condition of employment as a result of a change to the award.

PN68

Now, I can only presume that when it says award, it means agreement but, regardless, there seems to be that fairly clear indication that no reduction in any condition will be brought about by the operation of this agreement.

PN69

And I think the other thing that we need to do in relation to the agreement is read it in conjunction with the consultative process that has been included at clause 8 where clearly there is an indication between the parties that they want to deal through issues together. And I think what you have heard in relation to the EFT matter is it is an edict that has come down from management. It is 101, we are reducing it to 60. There hasn't been consultation. So it may be that at the point where I have instructions about what has occurred that we put arguments to you about the exercise of your discretion in relation to the application and we say - - -

PN70

THE DEPUTY PRESIDENT: Yes. It should be possible, Mr Wainwright, should it not for you to ascertain in relatively quick time whether or not your members at the site or sites involved have, in fact, taken industrial action, and whether or not they intend to take more industrial action, and whether or not such industrial action was authorised by the company? I wouldn't have thought that - - -

PN71

MR WAINWRIGHT: Well, if it was authorised - - -

PN72

THE DEPUTY PRESIDENT: The company is here, they would be able to tell you that.

PN73

MR WAINWRIGHT: Yes, they would be able to tell us if any stoppage was authorised and then it wouldn't be industrial action.

[11.30am]

PN74

THE DEPUTY PRESIDENT: Yes, and you would be able to ascertain fairly quickly, I would have thought, whether there was any action taken.

PN75

MR WAINWRIGHT: Yes.

PN76

THE DEPUTY PRESIDENT: Yes.

PN77

MR WAINWRIGHT: Well, we are certainly able to ask those questions, your Honour.

PN78

THE DEPUTY PRESIDENT: Yes.

PN79

MR WAINWRIGHT: The other thing that I wanted to say to you while I was on my feet and assisting you to the extent that I can, is to point you to the disputes resolution procedure at clause 9 which then points you to appendix C, and that disputes resolution procedure, as is the case in most of them, precludes a provision that states the status quo, if any issue is in dispute, shall remain. So if we are in the circumstances, your Honour, where the company says, well, yes, the disputes resolution procedure, at least as far as our agreement goes, states the status quo remains, and the status quo is that the allowance is $100, so their position is, well, that is the allowance as of now, and they go through the review in the proper consultative manner, then we think that that is a way to move forward with this application.

PN80

Rather than use the powers that you have pursuant to section 127, which I think are inappropriate to these circumstances - it is certainly my view based on what I have heard thus far - we would suggest that you use your powers pursuant to section 102(2)(b) to direct that the parties meet and confer in relation to these issues, because - and I have dealt with CUB on a couple of occasions, there are some people there with common sense, and I know that ourselves and the other unions here have common sense - this is an issue to do with a small amount of money and it is one that should be solved through discussion. And if it takes the Commission to order the parties to discuss it, well, then I suggest that that is what we do.

PN81

THE DEPUTY PRESIDENT: Yes. I might - while we are on the subject of the disputes procedure, Mr Wainwright, you pointed me to (ix) in that disputes procedure. I might point out to you there is a (viii) immediately preceding it that says that:

PN82

The parties accept the benefit of this process.

PN83

It is stated:

PN84

They will use their best offices to ensure that the process will be implemented without breach during the life of the agreement.

PN85

MR WAINWRIGHT: Yes. And we would expect also that the consultative procedures in the agreement would be implemented without breach. And that is what we always seek to do, is to implement these agreements to the letter. It is not always what occurs, but I certainly wouldn't accept the proposition that we are the only party that might be in breach of the agreement.

PN86

THE DEPUTY PRESIDENT: Well, given that you are in ignorance of this entire - or the actions that have led to this application, Mr Wainwright, perhaps you can seek some instructions fairly quickly, at least to the extent of what, if any, industrial action has taken and whether or not that industrial action was authorised, and further if there is any industrial action pending or probable, I would appreciate knowing about that as well.

PN87

MR WAINWRIGHT: I certainly will - - -

PN88

THE DEPUTY PRESIDENT: Thank you.

PN89

MR WAINWRIGHT: - - - take that opportunity when there is an adjournment to the hearing.

PN90

THE DEPUTY PRESIDENT: Yes. Mr O'Brien.

PN91

MR O'BRIEN: Yes, thanks, your Honour. The members of the ASU belong to the Victorian public sector branch of the union. This morning I had this notification thrust in my hand in the national office. It is the first I had seen of it, the first that they had seen of it, or heard of it. I faxed it through to them.

PN92

MR WAINWRIGHT: Sorry, your Honour. I have just been informed that I am required to give evidence next door about a matter of service that I have been involved in so I would seek an adjournment in this matter.

PN93

THE DEPUTY PRESIDENT: Now, you - - -

PN94

MR WAINWRIGHT: I am told that it will only take five minutes.

PN95

THE DEPUTY PRESIDENT: Is there any objection to a five minute adjournment?

PN96

MR TUCK: If it is only five minute, your Honour, I don't object but I would object to any further delay. My instructions are there is industrial action taking place at Abbotsford now. And as far as Mr Wainwright's concern about not being properly served there is only one CFMEU - it has one national office and that is in Sydney and that was served and Mr Fida is here as the organiser and I am concerned about that sort of attitude being adopted here, we simply don't know anything. When the organiser and delegate are sitting next to him.

PN97

THE DEPUTY PRESIDENT: Yes. Look, that is something that - - -

PN98

MR WAINWRIGHT: They can tell me when I ask them.

PN99

THE DEPUTY PRESIDENT: That is something that we will explore further. I do intend to adjourn. I have a request from Commissioner Whelan that that evidence take place before her. So I will adjourn until a quarter to twelve and we will reconvene back in here at a quarter to twelve. Thank you.

SHORT ADJOURNMENT [11.35am]

RESUMED [11.45am]

PN100

THE DEPUTY PRESIDENT: Yes. Perhaps, Mr Wainwright, you might - if it is correct that your delegates are there, you might want to confer with your delegates quietly while Mr O'Brien makes his submissions on those questions that I asked.

PN101

MR WAINWRIGHT: Yes, your Honour.

PN102

THE DEPUTY PRESIDENT: Thank you. Go ahead, Mr O'Brien.

PN103

MR O'BRIEN: Yes, good. Thanks, your Honour. As I was starting to say prior to the adjournment, the members of the ASU belong to a particular branch in Victoria which is the Victorian public sector branch. This is not an area in the national office that I have had any previous experience with so I telephoned the secretary this morning who was on leave. I managed to contact the assistant secretary who instructed me that Mr Higgins was well versed in what was happening down there and basically to follow on with Mr Higgins' submissions and support those submissions.

PN104

I haven't got any other first hand information apart from my own observation that it appears to me that the issue is more over how unions can meet with members to inform and discuss issues to obtain a collective view to be represented to management more so than, perhaps, 127 orders. And I think if perhaps some focus could be given on that it may alleviate the need for any section 127 orders.

PN105

THE DEPUTY PRESIDENT: Yes. Well, perhaps, unlawful industrial action not being taken might alleviate the need for 127 orders also, Mr O'Brien.

PN106

MR O'BRIEN: Well, you know, I am not accepting that there is any unlawful industrial action, your Honour.

PN107

THE DEPUTY PRESIDENT: So you, like Mr Wainwright, have no advice that there was any action taken by members of the ASU?

PN108

MR O'BRIEN: Well, I have no reason to think that Mr Higgins' report was inaccurate or the report given by the company, Mr Higgins accepted the report by the company but put a different view on it and my instructions are basically - - -

PN109

THE DEPUTY PRESIDENT: Have you had an opportunity to confer with your delegates on the site, Mr O'Brien?

PN110

MR O'BRIEN: No, I certainly have not.

PN111

THE DEPUTY PRESIDENT: Yes. Thank you. Yes, Mr Tuck. Mr Tuck, I intend to go off the record briefly if that is all right with the parties but I give you the opportunity, first, to - - -

PN112

MR TUCK: There is a number of documents I would just like to put before you if I can before you go off the record, your Honour.

PN113

THE DEPUTY PRESIDENT: Yes.

PN114

MR TUCK: First, is a letter to each of the unions from CUB dated 13 January. A letter, first, to Mr Tom Watson, the State Secretary of the CFMEU, he is from the FEDFA office. Mr Brian Daley, State Secretary of the LHMU and to Ms Ingrid Stitt who is the Branch President of the ASU. I seek to tender those letters, your Honour. Each of those letters indicates that the proposed stopwork meetings of last week were unauthorised.

EXHIBIT #CUB1 BUNDLE OF DOCUMENTS

PN115

MR WAINWRIGHT: Your Honour, I don't have a copy of that correspondence.

PN116

MR TUCK: That is the only copy that we have, your Honour.

PN117

THE DEPUTY PRESIDENT: I will arrange for some copies to be made during the break.

PN118

MR TUCK: Thank you, your Honour. Could I also ask that the certified agreements be marked, your Honour?

PN119

THE DEPUTY PRESIDENT: I am sorry?

PN120

MR TUCK: Could I ask that the certified agreements also be marked as - - -

PN121

THE DEPUTY PRESIDENT: I don't normally mark documents of the Commission, Mr Tuck.

PN122

MR TUCK: I am happy for that. Then the 1990 EFT agreement, we would like that marked, we tender that.

PN123

THE DEPUTY PRESIDENT: Yes. Have copies of that been provided to the unions?

PN124

MR TUCK: Yes, your Honour.

EXHIBIT #CUB2 1990 EFT AGREEMENT

PN125

MR TUCK: I also seek to tender this document, your Honour. That is a flyer that we received yesterday, your Honour.

EXHIBIT #CUB3 COPY OF FLYER

PN126

MR TUCK: I would also like to seek to tender an email received by Mr Whitecross of CUB from Mr Alex Fida, who Mr Wainwright indicates is sitting next to him.

EXHIBIT #CUB4 EMAIL FROM MR FIDA TO MR WHITECROSS

PN127

MR TUCK: And, finally, for completeness, your Honour, I would seek to tender a further flyer from the CFMEU FEDFA; again Mr Alex Fida's name appears on that document. That was a notification of a stopwork to be taken today at Altona. My instructions are that Mr Max Woodcock then advised this morning the co-ordinator of CUB that those report back meetings would not be taking place.

PN128

THE DEPUTY PRESIDENT: That is those report back meetings that were scheduled for today's date, is it not? Yes.

PN129

MR TUCK: Yes, they were. So again Mr Alex Fida's name appears there.

EXHIBIT #CUB5 FLYER FROM CFMEU FEDFA

PN130

THE DEPUTY PRESIDENT: Are you saying that none of these - well, I guess to the best of your knowledge, the only one would have been the 11 am one. So you are saying that hasn't occurred, Mr Tuck?

PN131

MR TUCK: At Altona. My instructions are they are taking industrial action at Abbotsford now, and the first - we only have one copy of this but this is an LHMU, FEDFA and ASU flyer setting out the stopwork meetings that took place last week. Your Honour, can I just indicate that the company - - -

EXHIBIT #CUB6 FLYER FROM LHMU, FEDFA AND ASU SETTING OUT DETAILS OF STOPWORK MEETINGS

PN132

THE DEPUTY PRESIDENT: Mr Tuck, I will again have copies provided when we go off the record.

PN133

MR TUCK: Your Honour, can I just indicate the company's concern that the CFMEU would present a submission before the Commission that it has no instructions about the matter when Mr Alex Fida, a delegate who seems to be intimately involved in this matter, is present in the Commission, and Mr Peter Andrusci, an organiser of the FEDFA, is present in the Commission and was present in the Commission before the hearing commenced. We are very concerned that that is the attitude that the CFMEU brings to these matters. And we would like that placed on the record because, in our submission, it is simply not - - -

PN134

THE DEPUTY PRESIDENT: Yes. Mr Wainwright, you are on your feet, you object - - -

PN135

MR WAINWRIGHT: Yes, I certainly do. I mean, that is a ridiculous submission to make. I stated when I told you about my circumstances when receiving the listing and so forth that I was coming to this hearing straight from the hearing with Commissioner Whelan. So it is obvious on its face that I have instructors here who can instruct me, and will instruct me, and have instructed me now; but when I put those submissions they had not instructed me.

PN136

THE DEPUTY PRESIDENT: Yes, thanks, Mr Wainwright.

PN137

MR WAINWRIGHT: Now, I am in the position where I have to tell you that.

PN138

THE DEPUTY PRESIDENT: Thanks, Mr Wainwright. Yes, Mr Tuck.

PN139

MR TUCK: We would still like that submission made. That is our observation. We are concerned if that is the position the CFMEU takes in relation to these matters - this is a serious matter for the company, your Honour. We are also concerned about the attitude of the LHMU in relation to holding guns to the head of the company in relation to these matters. Now, I understand your Honour has made that similar observation but we are very concerned that the LHMU doesn't seem to understand that it has obligations not to pull people off the job in relation to matters that it has concerns about. And that is a serious matter for the company. It does cost a lot of money.

PN140

THE DEPUTY PRESIDENT: Mr Higgins?

PN141

MR HIGGINS: Yes, your Honour.

PN142

THE DEPUTY PRESIDENT: Is this an objection to something Mr Tuck - - -

PN143

MR HIGGINS: It is an objection to what has just been said by Mr Tuck and I perhaps would like to refer to the current enterprise agreement, 2003, which was tabled by Mr Tuck this morning. I take you to clause 8, consultative process, where the final paragraph, paragraph 8, point 6:

PN144

The union may convene up to four extraordinary meetings in any 12 month period. These may be up to four hours in length and will be followed by a meeting of the AIRC.

PN145

The consultative process we believe, as I have pointed out earlier, has not been - - -

PN146

THE DEPUTY PRESIDENT: I am sorry, where was that provision again, Mr Higgins?

PN147

MR HIGGINS: Clause 8 at point 6.

PN148

MR TUCK: Your Honour, is this an objection?

PN149

MR HIGGINS: It is an objection to - it is an objection.

PN150

MR TUCK: Your Honour, it is not an objection. It is just a submission in reply on the run.

PN151

THE DEPUTY PRESIDENT: It seems to be the case, yes, Mr Tuck. What are you objecting to, Mr Higgins?

PN152

MR HIGGINS: Well, I am objecting to Mr Tuck's inference that, you know, the unlawful - - -

PN153

THE DEPUTY PRESIDENT: Well, if there are submissions to be made about that, then you can make them at the appropriate time, Mr Higgins.

PN154

MR HIGGINS: Okay. I just make the observation at this stage, your Honour.

PN155

THE DEPUTY PRESIDENT: Yes.

PN156

MR TUCK: Your Honour, the company is happy to have a short adjournment but we are concerned that there is another stopwork meeting for this afternoon scheduled and, unless we can get some indication from the unions that they will cease the industrial action that they are planning, then we would seek to press for the 127 orders.

PN157

THE DEPUTY PRESIDENT: Yes. Yes, I understand that. When is the next - - -

PN158

MR TUCK: The first one, the 11 am is continuing now, and the next one is at 3 pm.

PN159

THE DEPUTY PRESIDENT: Yes, thank you. I intend to go off the record to see if we can have some discussions that might lead to some resolution of this matter. I will adjourn until 10 minutes past 12, and we will reconvene back in here in conference at that time. Perhaps, Mr O'Brien, you might avail yourself of that short adjournment to seek any instructions that you need to seek from delegates.

PN160

MR O'BRIEN: In connection with that meeting this afternoon, your Honour?

PN161

THE DEPUTY PRESIDENT: Well, in connection with this entire matter. You mentioned that you had not been in contact with delegates, Mr O'Brien.

PN162

MR O'BRIEN: No, I haven't.

PN163

THE DEPUTY PRESIDENT: It might be advisable that you do so so that you understand what the circumstances are from your own delegate.

PN164

MR O'BRIEN: Yes.

PN165

THE DEPUTY PRESIDENT: Yes, I will reconvene, as I said, at 10 past 12.

SHORT ADJOURNMENT [11.55am]

RESUMED [1.30pm]

PN166

THE DEPUTY PRESIDENT: We have had some considerable discussion in private conference in this matter, and the unions have agreed to make a statement on the record in an effort to resolve the matter. Mr Higgins.

PN167

MR HIGGINS: Yes, thank you, your Honour. Look, there is a statement, as you are aware of in about four or five dot points. The unions are committed to entering into negotiation with the company in relation to the review of the EFT and will be available to participate in three meetings between now and the first week in February. That is the first dot point. The second one will be the report back meeting scheduled for 3.00 pm this afternoon, will be cancelled. That is the second dot point.

PN168

The outcome of the negotiations with the company will be reported back to the members and the method for conducting those report back meetings will be conducted according to agreement between the parties and if the parties cannot agree on the report back meetings, they will refer the matter to the Commission. That is the third dot point. And the last one; we undertake to abide by the disputes procedure and all other aspects of the certified agreement in the resolution of this matter.

PN169

THE DEPUTY PRESIDENT: Yes, thanks, Mr Higgins. Mr Wainwright.

PN170

MR WAINWRIGHT: Your Honour, in anticipation of the company also agreeing to participate in the process, we concur with what has been said by the ALHMWU.

PN171

THE DEPUTY PRESIDENT: Yes. Mr O'Brien.

PN172

MR O'BRIEN: Yes, my submission is the same as Mr Wainwright's.

PN173

THE DEPUTY PRESIDENT: Yes. It was the company's position that there should be a report back to the Commission regardless, as I understand it, of negotiations that might - or the outcome of negotiations that might take place during the period that that report back should be scheduled for the middle of the first week in February. Am I to understand that the unions are agreeable to that process as well? Mr Higgins.

PN174

MR HIGGINS: Can I just clarify the time again, your Honour, if I may?

PN175

THE DEPUTY PRESIDENT: Well, I haven't actually scheduled it yet, Mr Higgins, but the proposal was that there be a report back to the Commission during the first week in February, somewhere middle of the first week in February.

PN176

MR HIGGINS: That is, I would assume then that - bearing in mind that we are agreeing to a schedule 3 meeting consultative process. That would be straight after. Is that - - -

PN177

THE DEPUTY PRESIDENT: That is right.

PN178

MR HIGGINS: Is that my understanding?

PN179

THE DEPUTY PRESIDENT: That is right.

PN180

MR HIGGINS: We wouldn't have any objections to that either.

PN181

THE DEPUTY PRESIDENT: Good. Mr O'Brien and Mr Wainwright, do you - - -

PN182

MR O'BRIEN: Yes, the ASU would agree to that, sir.

PN183

THE DEPUTY PRESIDENT: Yes.

PN184

MR WAINWRIGHT: As well, your Honour.

PN185

THE DEPUTY PRESIDENT: Yes. Well, I will come to the scheduling of that in just a moment. Mr Tuck.

PN186

MR TUCK: Your Honour, just to clarify the second dot point, the report back at 3.00 pm today is cancelled, and it goes on to say, that the outcome of the meeting shall be reported back to the members by an agreed method. We just clarify that there will be no other report back meetings scheduled during this period. We just seek clarification of that. We would like to understand when this undertaking will be communicated to the delegates and I am instructed the company is also committed to this process.

PN187

THE DEPUTY PRESIDENT: Yes, thank you.

PN188

MR TUCK: The only other matter, your Honour, is that we would ask that the file remain open. If you are going to adjourn it to a report back, the presumption is it will remain open.

PN189

THE DEPUTY PRESIDENT: Yes, it will be.

PN190

MR TUCK: With liberty for us to apply.

PN191

THE DEPUTY PRESIDENT: It will be kept open, Mr Tuck.

PN192

MR TUCK: Thank you, your Honour.

PN193

THE DEPUTY PRESIDENT: Yes. The clarification of that point Mr Tuck raised, Mr Higgins, the understanding that the Commission has is that there will not be any recourse to unauthorised stopwork meetings in the resolution of this matter. That is a necessary outcome of the undertakings you have made, as I understand it.

PN194

MR HIGGINS: That is right, on this issue, we agree to that.

PN195

THE DEPUTY PRESIDENT: Yes, thank you. For the Commission's part, I would require that the unions convey the outcome and the undertakings made back to the site delegates, in effect, immediately on the adjournment of these proceedings. It is important that the people on site understand fully what has been committed to here, for the resolution of these matters. And it is particularly important, given the pending stoppage at 3.30 this afternoon.

PN196

So if I can just have an undertaking that that would be done from the three unions, then I think that probably completes the circumstances, apart from scheduling the report back. Mr Higgins.

PN197

MR HIGGINS: Yes, I will give that undertaking in that, your Honour.

PN198

THE DEPUTY PRESIDENT: Yes. Mr Wainwright.

PN199

MR O'BRIEN: The ASU will give that undertaking.

PN200

MR WAINWRIGHT: Your Honour, we are keen to tell our members that the company have agreed to consult over the EFT allowance.

PN201

THE DEPUTY PRESIDENT: Yes. Thanks. And the rest of the undertaking, I take it, Mr Wainwright?

PN202

MR WAINWRIGHT: Certainly.

PN203

THE DEPUTY PRESIDENT: Yes, thank you. Now, I have got some difficulties in that first week in February. Is 3.00 pm on Thursday afternoon of the 5th suitable to the parties?

PN204

MR TUCK: Yes, your Honour.

PN205

THE DEPUTY PRESIDENT: So I will schedule a report back meeting to provide the Commission with an update on the outcome of negotiations to that point in time, for 3.00 pm on Thursday, 5 February. There being nothing further I will adjourn these proceedings.

ADJOURNED UNTIL THURSDAY, 5 FEBRUARY 2004 [1.37pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #CUB1 BUNDLE OF DOCUMENTS PN115
EXHIBIT #CUB2 1990 EFT AGREEMENT PN125
EXHIBIT #CUB3 COPY OF FLYER PN126
EXHIBIT #CUB4 EMAIL FROM MR FIDA TO MR WHITECROSS PN127
EXHIBIT #CUB5 FLYER FROM CFMEU FEDFA PN130
EXHIBIT #CUB6 FLYER FROM LHMU, FEDFA AND ASU SETTING OUT DETAILS OF STOPWORK MEETINGS PN132