BP2004/1601, Transcript of Proceedings [2004] AIRCTrans 600 (13 February 2004)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 4, 179 Queen St MELBOURNE Vic 3000
(GPO Box 1114 MELBOURNE Vic 3001)
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TRANSCRIPT OF PROCEEDINGS


O/N 10797

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT LACY

BP2004/ 1601

APPLICATION FOR TERMINATION OF
BARGAINING PERIOD

Application under section 170MW of the Act
by Areva T and D Australia for orders to
terminate or suspend bargaining period in
BP2003/7330

MELBOURNE

2.35 PM, TUESDAY, 3 FEBRUARY 2004

PN1

MS S. ZEITZ: I seek leave to appear on behalf of the applicant, together with MR P. TREEBY.

PN2

MR G. BORENSTEIN: I appear together with MR W. HAYES.

PN3

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. Do you have any objection to Ms Zeitz being granted leave to appear?

PN4

MR BORENSTEIN: No, I don't. The only application I suppose I have, and it might be best to raise now, is an adjournment application. I don't know what is the best way to handle this.

PN5

THE SENIOR DEPUTY PRESIDENT: What are the grounds for - - -

PN6

MR BORENSTEIN: The grounds we say why it should be adjourned is, firstly, that termination or suspension of a bargaining period is a very serious issue, and the interests of natural justice we say are prevalent in respect of such an application. For that basis we say we haven't received natural justice on the following bases.

PN7

Firstly, that we only received the notice of listing yesterday. We say 24 hours notice for such a serious application is not reasonable in the circumstances. Furthermore, we only received the application today via fax. We understand that a letter may have been sent on the 30th via the post, but - - -

PN8

THE SENIOR DEPUTY PRESIDENT: By the what, sorry?

PN9

MR BORENSTEIN: Via post, on Friday. But I have not seen that.

PN10

THE SENIOR DEPUTY PRESIDENT: So when did you get notice?

PN11

MR BORENSTEIN: The notice of listing was yesterday. I was absent from the office yesterday because of a funeral, so it came to my attention this morning. I contacted the applicant's solicitors office and sought the application, and got it by fax approximately 10 o'clock this morning. We have no statements or any evidence from the other side. We don't know how the applicant is going to run its case, and what evidence they are going to rely upon in respect of this matter.

PN12

In any event, we are happy to use this time today to - if the applicant is complaining that they haven't had a chance to negotiate, we would be in a position today - the organiser is here - to negotiate with the applicant. We can give them a draft agreement, if that is what they wish to see.

PN13

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Borenstein. What do you say, Ms Zeitz? Leave to appear is granted.

PN14

MS ZEITZ: I can provide to the Commission and my friend a copy of the affidavit of service of the process server who delivered the application letter to the Commission and letter to the union on 30 January 2004 at 4.10 pm. Given that that seems to be in dispute, I tender the original of that affidavit of service, and provide a copy to my friend.

PN15

THE SENIOR DEPUTY PRESIDENT: But that is 30 January?

PN16

MS ZEITZ: Yes. It was served within an hour of it being filed in the Commission.

EXHIBIT #A1 AFFIDAVIT OF SERVICE

PN17

MS ZEITZ: And we say it is not for - in addition, as soon as the matter was listed, we were advised that the listing, Mr Treeby contacted Mr Hayes and organised with the union and advised him of the listing time, and also advised the shop steward.

PN18

THE SENIOR DEPUTY PRESIDENT: Mr Treeby, did you say?

PN19

MS ZEITZ: He is the Business Manager of my client Areva. We oppose the application for an adjournment. The Commission will see that the application sets out in some detail the grounds upon which my client relies. It is a very narrow point upon which we rely in terms of factual circumstances, and that is that there have been no negotiations of any substance whatsoever pertaining to the negotiation of a certified agreement in relation to the bargaining period.

PN20

Mr Treeby is available to give sworn evidence to the Commission as to the - evidence as to the discussions that have taken place. The discussion, and it is singular, that has taken place is a discussion that took place on 30 December 2003, the day before the applicable certified agreement expired. No further meeting to discuss the certified agreement that is proposed has been sought by the union or an organiser on its behalf.

PN21

The only other meetings that have taken place were, on my client's instructions, Mr Treeby was contacted by Mr Greg Arnett on 19 January 2004 to arrange for depot meetings. And I should just say that my client provides maintenance support to SPI Powernet, that is the maintenance of transmission lines and substations throughout Victoria. It has three depots. Those depots are at Bendigo, Wangaratta and Moorabool.

PN22

THE SENIOR DEPUTY PRESIDENT: Sorry, where was the last one?

PN23

MS ZEITZ: Moorabool. M-o-o-r-a-b-o-o-l. The conversation with Mr Arnett on 19 January was to arrange for depot meetings to enable the organiser to meet with the members - they were not meetings with management - regarding the agreement. The meetings were in fact held at Bendigo on 22 January, Wangaratta on the 23rd, and Moorabool on the 29th, the 29th being the day when my client received the 170MO notice.

PN24

So in my submission the application for an adjournment should not be allowed, simply on the basis that the factual circumstance upon which my client relies is a very narrow one in the sense of what has happened. Mr Hayes, the organiser, is here, he is able to instruct, and we say there is no barrier to the Commission proceeding to hear and determine the matter.

PN25

THE SENIOR DEPUTY PRESIDENT: What would you say about Mr Borenstein's point that the union are prepared to negotiate now?

PN26

MS ZEITZ: We say this. My client has made two efforts to contact the union: one on the 29th when Mr Treeby spoke to Mr Arnett, and one today when he spoke to Mr Hayes, suggesting an alternative arrangement in relation to perhaps allowing my client to be - or agreeing that the industrial action not take place, but that the shop stewards would be permitted to attend the meeting, and that cost would be met by my client, rather than that there actually be a stoppage, because this seems to be part of some wider campaign. And that those shop stewards would then be able to report back to the membership.

PN27

Now, we understand that is not acceptable. If that is not acceptable, we struggle to see how there can be any scope for conciliation in relation to the application.

PN28

THE SENIOR DEPUTY PRESIDENT: So the company offer the union the opportunity to have the stewards present at a stop work meeting - and paid, did you say? But that there be no other stoppage of workers, apart from the stewards.

PN29

MS ZEITZ: Yes, and that they would then be able to report back to their depots at an appropriate time about what had occurred.

PN30

THE SENIOR DEPUTY PRESIDENT: Yes. Mr Borenstein, is that right? Is that offer unacceptable to the union?

PN31

MR BORENSTEIN: The offer made, we contacted the applicant this morning saying that - we understood that the concern of the company was that they didn't think all the employees who took the day off would be attending the meeting down here in Melbourne. So our offer was, well, only those employees who were attending the meeting would be allowed to take the time off: and that employees who wanted to use it to have a holiday, or just a day off, we wouldn't excuse them for not being present at work.

PN32

That was rejected, and the offer back was just the delegates go along and report back. That is unacceptable to the union. We understand that a number of the employees have organised to attend the meeting tomorrow, and it is the union's position that we wish for them to attend. We see it as quite an important meeting for them to attend.

PN33

In respect of the points made by the applicant about it being quite a small issue, in the application they mention a shop steward, Ron Anstee. He is not here today. We are not able to call evidence on his behalf today, and the reason for that - - -

PN34

THE SENIOR DEPUTY PRESIDENT: Where is Mr Anstee?

PN35

MR BORENSTEIN: He is in paragraph 2.

PN36

THE SENIOR DEPUTY PRESIDENT: I see that. Whereabouts is he located?

PN37

MR BORENSTEIN: Bendigo. We asked about conciliation the applicant was referring to conciliation about, or negotiation about this application. I don't think they replied about negotiation about an agreement. We are willing here today to negotiate the agreement, which they say we haven't done. We dispute that. But in any event - - -

PN38

THE SENIOR DEPUTY PRESIDENT: They go further than that. They say that Mr Hayes told Mr Treeby you were not prepared to negotiate it.

PN39

MR BORENSTEIN: Well, my instruction is that he did not say that. We would like to speak to the shop steward about what his recollection of that meeting is as well.

PN40

THE SENIOR DEPUTY PRESIDENT: Mr Anstee, you mean?

PN41

MR BORENSTEIN: Mr Anstee. My short communication to Mr Hayes, I think his recollection would not be as clear as Mr Anstee's, and we would like the opportunity to be able to sit down with Mr Anstee and prepare a statement on his behalf and call his as a witness.

PN42

THE SENIOR DEPUTY PRESIDENT: You say you dispute the allegation that there has been no negotiation?

PN43

MR BORENSTEIN: Yes. We say that a number of demands have been raised with the applicant. No response has been received from the applicant.

PN44

THE SENIOR DEPUTY PRESIDENT: What, in writing, or discussions?

PN45

MR BORENSTEIN: At that meeting?

PN46

THE SENIOR DEPUTY PRESIDENT: At that meeting.

PN47

MR BORENSTEIN: At that meeting. We say the applicant has sought a termination of the bargaining period, which we say is a very - - -

PN48

THE SENIOR DEPUTY PRESIDENT: Suspension of the bargaining period.

PN49

MR BORENSTEIN: Well, I think it is both: either/or. And the period for the length of such suspension or termination is not specified in the application either - not that I can see anyway.

PN50

THE SENIOR DEPUTY PRESIDENT: Well, the heading of the application on the application is as it reads in the form, but in paragraph 9 the relief sought is suspension of bargaining period.

PN51

MR BORENSTEIN: Yes. Well, I am unaware as to whether you can seek an order which goes for as long as a certain condition is met, such as - a subjective condition such as the CEPU legitimately trying to reach agreement.

PN52

THE SENIOR DEPUTY PRESIDENT: Well, I am sure that that would not be an obstacle to an order being made in the end if there was merit in the application. Anyway, let me speak again with - - -

PN53

MR BORENSTEIN: Well, I mean, we would like to negotiate the agreement - use this time to negotiate the agreement.

PN54

THE SENIOR DEPUTY PRESIDENT: Ms Zeitz, it seems there is going to be some disputed issues of fact about what went on in the discussions on 30 December. Where is that discussion said to have taken place? Where did that take place?

PN55

MS ZEITZ: The discussion was between Mr Hayes, Mr Treeby and Mr Anstee on 30 December.

PN56

THE SENIOR DEPUTY PRESIDENT: Whereabouts?

PN57

MS ZEITZ: That happened at the Head Office of the company in Rowville.

PN58

THE SENIOR DEPUTY PRESIDENT: In Rowville?

PN59

MS ZEITZ: Yes. And that - it was, on my instructions, about 11 am. Mr Hayes had contacted my client just before the industry close down just before Christmas, and they had organised the meeting. My client's understanding is there was certainly a number of issues raised, and Mr Treeby can give evidence about that.

PN60

His understanding was that there was a stewards meeting that had been arranged which three stewards would attend. There was going to then be meetings with the various depots, and then there would be, he understood, further meetings arranged to discuss and negotiate the agreement. But that that was all happening in the context of the major distributors, namely, SPI Powernet and all the distributing groups being involved in negotiations.

PN61

So we say at one level, irrespective of what happened at the meeting on the 30th, one meeting and one meeting only with respect to the negotiation of a certified agreement does not and cannot be lifted to the level of genuine negotiations within the meaning of the Act, and there are decisions of the Commission that support that.

PN62

So we say even if my friend, and I understand he is saying this, is that there might be a dispute about what happened at the meeting on the 30th, but there has been no other meeting. The only other meetings have been, as I said, the meetings of the depots, where they have presumably been getting instructions about the matters to take back to the company.

PN63

THE SENIOR DEPUTY PRESIDENT: What I am minded to do is to stand the matter down until 4 o'clock to allow the union to prepare its defence. In the interim, if someone one or other of the union people were available to participate in conciliation, I could arrange for another member of the Commission to make some endeavours to assist the parties in resolving the issue at this stage.

PN64

MS ZEITZ: Thank you, your Honour. My client has no objection to entering into genuine negotiations. It does have an objection to getting ravelled up in industrial action before those negotiations have had a chance to proceed. So if there is some way through that, we are quite happy to look at that.

PN65

THE SENIOR DEPUTY PRESIDENT: All right. Mr Borenstein, you heard what I am minded to do, that is to stand the matter down until 4 o'clock to allow you to get further instructions and prepare a case, if necessary. But in the interim I can arrange for another member of the Commission to assist the parties in conciliation.

PN66

MR BORENSTEIN: Is your Honour unavailable for - - -

PN67

THE SENIOR DEPUTY PRESIDENT: Well, it is just that I have the 170MW matter before me. It is probably inappropriate if I participate in some form of negotiation if I am going to have to hear a debate about disputed issues of fact on that application.

PN68

MR BORENSTEIN: I wouldn't make any objection to conciliating and then hearing the 170MW application afterwards. I don't know if - - -

PN69

MS ZEITZ: We certainly would have no objection to the Commission as presently constituted conciliating.

PN70

THE SENIOR DEPUTY PRESIDENT: All right. Very well, I will adjourn the matter until 4 pm, subject to the parties entering into a conference with me.

SHORT ADJOURNMENT [2.54pm]

RESUMED [4.37pm]

PN71

MR BORENSTEIN: Thank you, your Honour, for your indulgence, and I think the negotiations have been quite fruitful, and I think we have a resolution to it. It does involve I suppose a somewhat - an arrangement whereby - I don't know whether I should say on transcript or not.

PN72

THE SENIOR DEPUTY PRESIDENT: Well, would you - - -

PN73

MR BORENSTEIN: I might let the applicants - - -

PN74

MS ZEITZ: We might - - -

PN75

MR BORENSTEIN: We might go into conference.

PN76

THE SENIOR DEPUTY PRESIDENT: Would you prefer that the matter be adjourned into conference?

PN77

MR BORENSTEIN: I think that - - -

PN78

THE SENIOR DEPUTY PRESIDENT: Yes, all right. I will adjourn the matter into conference.

SHORT ADJOURNMENT [4.38pm]

RESUMED [4.50pm]

PN79

THE SENIOR DEPUTY PRESIDENT: Yes. During the course of the adjournment I have discussed with the parties some terms of agreement. Ms Zeitz, do you want to address those matters?

PN80

MS ZEITZ: Thank you, your Honour. The parties have had some negotiations and have agreed to a program of meetings to take place between the parties, and I will come to that program in a minute. What is proposed is that the union will withdraw the notice issued pursuant to section 170MO and in response to that notice being withdrawn we will withdraw our application as currently filed. Bearing in mind the lateness of the hour and the impracticability of dealing with it any other way, what we have agreed is that those employees who do not attend for work tomorrow to attend the meeting that is scheduled at the Collingwood Town Hall will be treated as having taken a leave without pay day.

PN81

They won't be penalised for failing to attend work, and no other action will be taken, either against them or the union with respect to it being otherwise alleged to be unprotected action, so that in a sense deals with effectively what we would say is an arrangement by which employees are able to attend a mass meeting in an informal sense rather than through the bargaining period process.

PN82

The CPU has also agreed that - or the parties have agreed that in the interests of entering into some genuine negotiations to try and reach an agreement the parties will arrange to have four meetings between now and 20 February, the first one to take place on 10 February, the second on either the 11th or 13th and the third on the 17th subject to confirmation, and the last one on the 20th, to be followed by a report back and/or conciliation with the assistance of the Commission that afternoon, and that while that process is ongoing no further notices will be issued pursuant to section 170MO and no industrial action will be taken. We believe that this will provide the best environment for the parties to try and see if they are capable of reaching agreement.

PN83

THE SENIOR DEPUTY PRESIDENT: Yes, thank you, Ms Zeitz. Mr Borenstein.

PN84

MR BORENSTEIN: We give the commitment specified by the applicant, and withdraw the notice which is attachment 1 to the application for the suspension of bargaining period. It is dated 29 January 2004, relating to bargaining period 2003/7330.

PN85

THE SENIOR DEPUTY PRESIDENT: Yes. Thank you, Mr Borenstein. Well, I thank the parties - sorry - - -

PN86

MS ZEITZ: I think on that basis I should now formally withdraw the application as filed.

PN87

THE SENIOR DEPUTY PRESIDENT: Yes.

PN88

MS ZEITZ: And indicate to the Commission that in order to facilitate the conciliation process we will file a section 170MA application and ask that the panel head refer it to yourself. If the Commission pleases.

PN89

THE SENIOR DEPUTY PRESIDENT: Thank you, Ms Zeitz. I want to thank the parties for their conciliatory and co-operative approach this afternoon and congratulate them on the achievement that has been made so far and commend them for the proposed efforts that they are about to take in the next three-week period. Thank you. The matter is adjourned.

ADJOURNED INDEFINITELY [4.57pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #A1 AFFIDAVIT OF SERVICE PN17