C2003/4100, Transcript of Proceedings [2004] AIRCTrans 4546 (23 November 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 9063
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER BLAIR

C2003/4100

COMMUNICATIONS, ELECTRICAL,
ELECTRONIC, ENERGY, INFORMATION,
POSTAL, PLUMBING AND ALLIED
SERVICES UNION OF AUSTRALIA
- ELECTRICAL DIVISION SOUTHERN
STATES DIVISIONAL BRANCH

and

AMCOR PACKAGING AUSTRALIA
PTY LIMITED

Notification pursuant to section 99 of the Act
of a dispute re right of entry pursuant to section
285C and alleged subsequent refusal by company to
allow CEPU to enter

MELBOURNE

3.05 PM, FRIDAY, 12 NOVEMBER 2004

Continued from 26.6.03

PN62

MR L. BENFELL: I appear on behalf of the CEPU; with me is MR B. SHARP who is an organiser for the ETU, and also MR D. SALVAGE, MS D. DRYBURGH, MR G. RENTSCH and MR D. CAMUNCOLI who are members of the ETU employed at the power station at Fairfield.

PN63

MR G. SMITH: I seek leave to appear on behalf of the company in this matter - well, I don't need leave, I have got it I think from the last occasion.

PN64

THE COMMISSIONER: Carry over, yes.

PN65

MR J. CULLINAN: I am from the CFMEU. We also appeared on the last occasion but we would seek leave to intervene in this matter.

PN66

THE COMMISSIONER: Right, thank you. What is the parties' view on Mr Cullinan seeking leave to intervene?

PN67

MR BENFELL: For our part, Commissioner, we would like to know the basis on which he seeks leave to intervene.

PN68

THE COMMISSIONER: Yes. Yes, Mr Cullinan - Mr Smith, sorry.

PN69

MR SMITH: Sorry, Commissioner, but I think - - -

PN70

THE COMMISSIONER: What did I do the last time?

PN71

MR SMITH: - - - the CFMEU were granted leave to intervene on the last occasion. I am just trying to find it in the transcript but I was fairly confident that Mr Staindl appeared I believe on the last occasion, Mr Staindl of counsel; and I believe you did grant leave. Yes, it is. It is in paragraph 48 of the transcript, Commissioner, you say:

PN72

For that reason, the Commission will grant leave to Mr Smith in the terms of appearance. It will also grant leave for intervention of the CFMEU and leave to appear by Mr Staindl.

PN73

MR CULLINAN: Commissioner, that being the case, I am still happy to outline a brief about why we would be seeking leave to intervene to the ETU.

PN74

THE COMMISSIONER: Well, I think actually that was done last time. So given at para 48 the Commission did grant leave to intervene on the part of Mr Staindl representing the CFMEU, I won't smack you with an identity crisis, Mr Cullinan, I will call you Mr Cullinan rather than Mr Staindl; is that all right?

PN75

MR CULLINAN: That is fine, Commissioner.

PN76

THE COMMISSIONER: Thank you. Right, this matter was, if I recall, sent to the ACTU to see whether they could deal and assist in resolving this matter. I did receive some correspondence from the ACTU but, unfortunately, I didn't get all of it. Has someone got a clean copy that I can look at, please?

PN77

MR CULLINAN: Commissioner, I have been instructed that I can provide an in confidence copy.

PN78

THE COMMISSIONER: Right, thank you.

PN79

MR CULLINAN: And so I am happy to hand that up in confidence to the Commission for the Commission's record.

PN80

MR BENFELL: Commissioner, we haven't got a copy of that in confidence document. Perhaps we could get a copy.

PN81

THE COMMISSIONER: Is that - sorry, is that the same document, Mr Cullinan, that you are aware of - and I will just have a look at it - that was sent to the National Secretary of the CEPU, Mr Tyler, and sent to Mr Maitland, National Secretary of the CFMEU? Have you got that, Mr Benfell?

PN82

MR BENFELL: No, Commissioner. Perhaps if I could look at that document, it might assist.

PN83

THE COMMISSIONER: Okay. It is dated - well, it is a very significant date in the history of the Australian calendar I suppose, it is my birthday dated 31 July.

PN84

MR CULLINAN: Commissioner, I think we are happy to have the ETU look at it. My instructions were that it was particularly for the confidence of the Commission and the Commissioner, but I understand it has been sent to their office and that is partly why we are surprised to be here today because of the contents of that document.

PN85

THE COMMISSIONER:

PN86

MR SMITH: If the Commission pleases, I should say, Commissioner, we haven't seen the document but we understood the matter had been resolved between the two unions under the auspices of the ACTU, and an agreement had been reached. So we are very surprised to be here.

PN87

THE COMMISSIONER: Well, I am surprised to have you here because I haven't seen the full contents of the letter so I don't know whether it has been resolved or not. And it is not marked, by the way, in confidence.

PN88

MR CULLINAN: Commissioner, they are my instructions. They are not - - -

PN89

THE COMMISSIONER: Okay, sure.

PN90

MR CULLINAN: Yes, no more than that. Thank you.

PN91

THE COMMISSIONER: Okay.

PN92

MR BENFELL: Commissioner, we have got no objection to the letter being tendered. Obviously it has been addressed to our union. I have not got a copy of that but the contents do not surprise me because, quite clearly, the ACTU did not decide the issue and the final paragraph on the second page makes it clear that the unions were asked to go away and try and fix it. The unions have not been able to fix it and that is why we are here today. Sorry, Commissioner, it is the bottom of the third page where the final paragraph:

PN93

The ACTU urges the CFMEU and CEPU to continue their commitment to resolving these issues co-operatively and suggests a further meeting be convened to explore the development of an agreed approach to resolving these issues.

PN94

I have been instructed that several meetings have taken place, including at the ACTU, and the matter is not resolved, and so we need to get on with it.

PN95

MR CULLINAN: Commissioner, if it pleases, they are not my instructions that there have been several meetings taken place. The meeting that the CFMEU is aware of is the one which generated that document there and we believe that the first sentence in the summary is clear, and that is that the CFMEU is the most appropriate union to cover the workers in question. And we think that is pretty clear; we have had no further correspondence or contact from the ETU about this matter, if it pleases.

PN96

THE COMMISSIONER: As I understand it - and I will try and talk and read at the same time - there is an issue regarding a CFMEU member in Western Australia who wishes to maintain his CFMEU membership, whereas I understand in Western Australia that is covered by the CEPU. Is that right?

PN97

MR CULLINAN: No, Commissioner, that is actually another matter with the AMWU and - so at the Fairfield site there is two matters: one with the boiler house, and one with production workers.

PN98

THE COMMISSIONER: Okay, all right. Sorry, my misunderstanding. Mr Smith, what does the employer say?

PN99

MR SMITH: The employer says, Commissioner, we don't know what is going on.

PN100

THE COMMISSIONER: Well, that is not unusual.

PN101

MR SMITH: No. As you will recall, we made it pretty clear originally to the CEPU that we didn't believe they had constitutional coverage; that we had a single union site with a single agreement, and that the powerhouse employees who were members of the CFMEU and resigned and joined the CEPU should stay and rejoin the CFMEU if they wanted union coverage at all. We then got embroiled in this dispute. We haven't heard from the CEPU for over a year. We assumed, and we have been subsequently advised, that the matter had been resolved. We are somewhat surprised, to say the least, to turn up in these proceedings to be told, no, that is not the case and, by the way, here is the interim orders that we are seeking against you today.

PN102

To say that that would be an ambush would be understating the situation. To say that we are somewhat outraged by the whole situation would be understating the situation. It is our understanding, Commissioner, that this matter had been sorted out. It is absolutely news to us that there still remains some form of dispute. There is a lot more I would like to say, Commissioner, but perhaps that is enough for the moment.

PN103

THE COMMISSIONER: Sure. What orders does the CEPU seek, Mr Benfell?

PN104

MR BENFELL: Commissioner, I have draft interim orders prepared which I provided the other parties with today. For our part, Commissioner, the CEPU has not sought right of entry since the last proceedings because the company made it quite clear that they would not allow right of entry. It comes as a surprise to us that the company is now saying they thought the issue was sorted out because the employees who are members of the ETU have not advised them of that.

PN105

THE COMMISSIONER: There are two significant things I think in the documentation from the ACTU. Under the heading of: Background, it says:

PN106

The workers were formally CFMEU, FEDFA Division members. On 1 April 2003 their membership was transferred to the CFMEU FFP Division as part of the CFMEUs scheme of amalgamation.

PN107

Secondly, under the heading of: Summary, it does say:

PN108

The CFMEU is the most appropriate union to cover the workers in question.

PN109

And then it provides for the reasons. There is always going to be, in the Commission's view, some discontent by some employees who were members of a particular union and who have some loyalty to that particular union, and particularly if it has been over a long period of time, but that does not give them the right then to say, well, as part of a scheme of amalgamation we got transferred over to another union and a particular division, we now want to renege on that and go back to the original union. And then the original union - in this instance which happens to be CEPU - says, well, thanks very much, we will take you back. That is not going to work, it is not going to work. If the ACTU identify that the CFMEU is the most appropriate union to cover the workers at that site, then so be it. The CEPU lose out.

PN110

MR BENFELL: With respect, Commissioner, that is not the question before you.

PN111

THE COMMISSIONER: I know what is before me.

PN112

MR BENFELL: No, no, sorry. The question of whether - of who the most appropriate union to cover the employees is not the question. The question is, can the - - -

PN113

THE COMMISSIONER: You seek orders from this Commission to give you a right of entry that I am not prepared to give you. And I am not prepared to give it to you for the very reasons that I have just said.

PN114

MR BENFELL: Yes, I appreciate that, Commissioner, but, unfortunately, the matter can't rest there because we have sought right of entry to discuss with our members matters under section 285C of the Act. We have been refused that right of entry, and that is the only question; whether or not we can enrol in accordance with our rules those employees. The appropriateness of those employees becoming members of the ETU or CEPU is not the question. The question is simply, are they eligible to become members of the CEPU?

PN115

THE COMMISSIONER: Well, Mr Benfell, you seek an order from this Commission under section 111(1)(t) to allow you to entry into those premises. You are not going to get it. If you want to go somewhere else to another jurisdiction, that is your business. This Commission is not going to allow your union - or, in fact, any other union - who is part of a scheme of arrangement in terms of amalgamation to renege on that and then - - -

PN116

MR BENFELL: Sorry, Commissioner, but - - -

PN117

THE COMMISSIONER: Just let me finish. And then go against the wishes of your peak body and the express wish of your peak body that the CFMEU is the most appropriate organisation to cover what were CEPU members at that site. I am not going to give you the 111(1)(t) orders that you seek to allow you to do what you seek to do. It is as simple as that. If you say that the company is in breach of the appropriate right of entry clauses under the Act, take them to another jurisdiction but this Commission is not going to condone a demarcation dispute.

PN118

MR BENFELL: Sorry, Commissioner, we are entitled to come to the Commission under section 25G for relief in this matter, and that is why we are here.

PN119

THE COMMISSIONER: And you are not going to get it.

PN120

MR BENFELL: The CEPU did not renege on any understanding or agreement.

PN121

THE COMMISSIONER: Go and talk about it to Peter Tighe and the ACTU.

PN122

MR BENFELL: Well, Commissioner, you put me in a difficult situation. You have already decided not to issue orders before I can put my case for the orders.

PN123

THE COMMISSIONER: Yes, and if you go back over the transcript, you will see the reasons why.

PN124

MR BENFELL: But in this circumstance, Commissioner, at the moment the company is proposing to make redundant four of the eight employees that we are talking about.

PN125

THE COMMISSIONER: The CFMEU have coverage.

PN126

MR BENFELL: Yes, but the employees are not members of the CEPU, they have no representation at all at the moment in relation to their future.

PN127

THE COMMISSIONER: But that is because they choose not to. Is that correct?

PN128

MR BENFELL: They are entitled to choose not to.

PN129

THE COMMISSIONER: And they chose not to. You then can't come along here and say: oh, look, by the way, we now want to pick that up. I mean, it is an interesting thing that seems to be happening. It is not unusual, but it is interesting in this respect. The CEPU chose to represent transport drivers.

PN130

MR BENFELL: I beg your pardon?

PN131

THE COMMISSIONER: Just listen, the CEPU chose to represent transport drivers at Australia Post against a division of their own union on the basis that they were disgruntled transport drivers. I took the same view then as I take now. There are always going to be disgruntled members of particular divisions of the union. The view that I support, and it is one that is endorsed by the ACTU, and that is you work through those issues. You don't simply say: okay, you can leave that union and you can join us.

PN132

MR BENFELL: Yes, Commissioner, we have attempted at some expense and effort to resolve those issues with the ACTU, or with their assistance. The issues have not been resolved. These employees are members of the union; they are entitled to be members of the union. And we seek relief under 25G to represent them.

PN133

THE COMMISSIONER: Well, this Commission is not going to condone a demarcation dispute.

PN134

MR BENFELL: Well, it is not actually a demarcation dispute, Commissioner, it is a matter of whether or not the CEPU can represent these employees and whether or not we get right of entry. It is simply a matter of whether we comply with section 285 of the Act.

PN135

THE COMMISSIONER: Well, you are not going to get it from. Okay. The Commission will stand adjourned.

ADJOURNED INDEFINITELY [2.22pm]