C2004/1771, Transcript of Proceedings [2004] AIRCTrans 701 (23 February 2004)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 6, 114-120 Castlereagh St SYDNEY NSW 2000
PO Box A2405 SYDNEY SOUTH NSW 1235
Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS

O/N 9261

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

VICE PRESIDENT LAWLER

C2004/1771

OTIS ELEVATOR COMPANY PTY LIMITED

and

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

Notification pursuant to section 99 of the Act
of a dispute re negotiation of an enterprise agreement

SYDNEY

2.38 PM, TUESDAY, 10 FEBRUARY 2004

PN1

THE VICE PRESIDENT: Appearances, thanks.

PN2

MR D. RUSSELL: If it pleases your Honour, I appear for the Australian Industry Group on behalf of Otis Elevator Company Proprietary Limited. With me today I have MR G. WARREN, who is the National HR Manager for Otis and MR D. THOMAS, who is the Construction Manager from Otis. If it pleases.

PN3

MR D. McKINLEY: If it pleases your Honour, I appear for the CEPU.

PN4

MR E. O'BRIEN: I appear for the AMWU and MR IAN MORRISON from the AMWU is 5 minutes late.

PN5

THE VICE PRESIDENT: He is with Commissioner Roberts I think at the moment. There's no point in starting. Mr Russell, would you like to give me a brief outline as to what brings the matter before the Commission today.

PN6

MR RUSSELL: Thank you, your Honour. This is a section 99 notification of a dispute between Otis and the CEPU and the AMWU. Otis Elevator Company as the name would suggest installs and maintains lifts and escalators and other moving travelling walkways and the like. They have two main divisions, one is the service division that services those apparatus and there's about 190 people employed in that division in New South Wales. They also install new lifts and refurbish lifts on construction sites where there are about 120 employees in New South Wales employed.

PN7

Your Honour, currently there is industrial action in place following attempts to try and finalise a new enterprise bargaining agreement. The industrial action commenced on Monday, 2 February, following a mass meeting of the employees that was held on 28 January 2004. That meeting I understand rejected the company's offer to resolve the terms of the new enterprise agreement and endorsed a program of industrial action.

PN8

The current industrial action includes an overtime ban, a refusal to change shifts or to participate in any new shift that the company might want to bring on. A ban on using interstate employees to supplement the work force and finally there's been a program called daily stop work meetings, your Honour. Up until today, those stop work meetings have been two hours in duration and today they have been extended to four hours in duration. We understand from the notification we have received from the union about the industrial action that is intended that these will conclude on Thursday, 19 February 2004 but obviously it will be up to the industry whether they want to renotify further action after that.

PN9

Your Honour, in terms of what we are looking for today is we are seeking a recommendation of the Commission to get the industrial action lifted and to try and get a process in place to resolve the outstanding issues between the parties, to try and get the negotiations back on track. In an attempt to persuade you in this course of action, I have a number of points I want to make in my opening comments about where the negotiations are up to at the moment.

PN10

The first one is that the parties have not met since 23 February 2003. At that meeting, the company did table an offer to the employees.

PN11

THE VICE PRESIDENT: 23 January.

PN12

MR RUSSELL: 23 January there was a meeting between the company and the negotiating committee where an offer was tabled. The offer was rejected at the meeting of 28th that I've already referred to and a program of industrial action was commenced and endorsed at that meeting. Otis has always had a clear policy not to negotiate when industrial action is in place or is threatened.

PN13

THE VICE PRESIDENT: That policy is rather at odds with the philosophy that the present government has seen fit to enshrine in the legislation.

PN14

MR RUSSELL: I understand that, your Honour, but nevertheless that is the position that Otis takes and they take the view that they find it - and they prefer not to negotiate with the proverbial gun to their head.

PN15

Your Honour, secondly the other issue that we are struggling with here is that the unions haven't clearly articulated their position in regard to the negotiations. The company has put forward quite a comprehensive offer as between 3 December and I can hand up a copy of the offer, your Honour. Your Honour, it might be appropriate to have it marked, if it pleases.

PN16

THE VICE PRESIDENT: Yes, exhibit 1 is the Otis offer of 23 January 2004

EXHIBIT #1 OTIS OFFER DATED 23/01/2004

PN17

MR RUSSELL: Exhibit 1 is fairly comprehensive so I won't go through it line by line in details, which is the point I wish to make out of it, it refers to the process I guess. It talks about the implementation of a 36 hour week across the different divisions and a staggered implementation of that. It talks about a wage increase in the vicinity of 4, 4 and 4 from certain dates with a three year agreement. It talks about some project allowance increments, increases into the redundancy trust and some changes to fares and travel and some supplementary issues about maternity leave. Maternity agreement, supplementary leave and living away from home allowance and radio allowance are all things that play normally in this particular industry.

PN18

Your Honour, where we are at is that we have had no formal communication from the unions other than their notification to the industrial action that has occurred as to their particular issues with this offer. We don't know if some of this is accepted, part of it is accepted, all of it is rejected. We have no clear indication from the union. There has been no formal communication from the union about what their response is other than it has been rejected, other than the industrial action that has been indicated to us.

PN19

Obviously the industrial action tells us fairly clearly that it is not accepted at least in some form but we are not clear what the position is from the unions today. There has been some vague references from individual employees that might have something to do with the wages. We are probably not terribly surprised there. Most agreements involved in disputes have something to do with the wages but we do not have a clear position from the union. One of the things we are trying to seek from the proceedings today is a clear articulation from the union as to what their position is and what they are seeking.

PN20

Your Honour, I guess where we are today is what we are seeking to do is to try and get this process back on track. The parties have not met since 23 January. There's a clear offer that has been put. We understand it has been rejected in some or all parts of it but we do not understand which bits or whether it's all indeed. What we are seeking is to try and get a process in place to try and resolve whatever the outstanding issues that we can define between the parties.

PN21

What we need to do, the mechanism to achieve this we would say, the best way would be a recommendation from the Commission to lift the industrial action. Secondly, a process to be set down for conciliation with the assistance of the Commission to try and resolve the issues between the parties. We would be happy to participate in any such process. If it pleases, your Honour.

PN22

THE VICE PRESIDENT: Thanks, Mr Russell. Just before I ask to hear from the union representatives, can I just get a couple of things straight in my mind. A notice has been served initiating a bargaining period - - -

PN23

MR RUSSELL: That is correct.

PN24

THE VICE PRESIDENT: - - - back I think in April last year. Do you take any issue that the action that has been taken at the moment is protected action?

PN25

MR RUSSELL: I would reserve our position on that by having those issues examined legally. The aim of today's side of the notification is to try and get a process in place to try and get the negotiations back on track. It is not to look at the legality or otherwise of the action. As I said, we are still seeking legal advice as to whether there are any issues with the notifications that - - -

PN26

THE VICE PRESIDENT: Finally, you accept that I have no power to arbitrate in relation to this, it is the powers of the Commission that confine exclusively to conciliation?

PN27

MR RUSSEL: Yes, I accept that.

PN28

THE VICE PRESIDENT: Fine. Mr McKinley?

PN29

MR McKINLEY: Thank you, your Honour. Mr Russell has gone some way in describing the dispute but he hasn't actually filled out the length and the breadth of what has been going on.

PN30

THE VICE PRESIDENT: That's your job.

PN31

MR McKINLEY: You have just pointed out that the log of claims was actually initiated in April 2003. Now, that's going on nearly 12 months we have been negotiating with the company. Now, during that time they've been negotiating interstate as well. We've also been negotiating with companies within the Sydney area.

PN32

For virtually the first four months of negotiations the company refused to talk to us. We issued a list of dates we'd like them to attend at the union to discuss the EBAs. Initially there was no response to them then they attended one meeting and rejected all the meetings from there on in, right through July, until eventually we had to virtually to them on bended knees saying please can we start the negotiations.

PN33

We had intended to start six months prior to the old EBA running out, which was in September last year, so we had it wrapped up prior to the finalisation of the enterprise agreement there would have been no need for industrial action that way. The company chose to extend the negotiations right through, as I said it is going on for 12 months now. There have been numerous letters sent to the company trying to get the negotiations kicked off but all to no avail.

PN34

Now currently, Mr Russell, states that the last meeting was held on 23rd and the company had no idea of the formal positions of the union. The fact was on 19th there was a meeting held and the unions put their positions fairly strongly, and that was really not exactly our bottom position, but the company said they would go away and they would come back to us on the 23rd with a response to that and at that time they seemed to indicate they could have worked with it, there may be some to'ing and fro'ing throughout for what we'd asked for but they were going to be prepared to work for it.

PN35

On 23rd they simply came back to us and said, that's it, this is our final proposal we won't be talking to you again, this is a take it or leave it situation. We haven't taken industrial action, simply to pursue a claim, we have taken industrial action mainly because the company has refused to talk to us and that was what initiated it, it wasn't the other way round. The company was refusing to talk to us prior to us taking industrial action. Now, they are claiming they won't talk with us with a gun at their head but we viewed it as the only way to get them back to the bargaining table. Now, we have no qualms whatsoever if the Commission wishes to assist in this.

PN36

THE VICE PRESIDENT: One thing is clear, you're within your lawful rights to take industrial action. At least prima facie you have served the notice and the legislation allows protected action in support of the - - -

PN37

MR McKINLEY: I'm not aware of the members feelings entirely. We had a mass meeting on Monday and they are still fairly fired up but I can't guarantee that we can lift any of the bans unless the company is prepared to talk openly and bargaining in good faith is the term we can use nowadays but lately they just haven't seemed to be, but they are offering us, well, the last offer is well below the Sydney agreements that have been signed, it's well below some of the interstate agreements that they have signed.

PN38

THE VICE PRESIDENT: The Sydney agreements?

PN39

MR McKINLEY: With other lift companies, sorry. Schindler Lifts have signed one, Devi Lifts have signed one, which is well above what the Otis offer is. All we are asking for is parity amongst the tradesmen. Now, our offer is well below what that offer is but it is above what they are asking us to accept. Now, as I said, I can't guarantee the members will want to lift any of these bans and I can't even guarantee the members won't want to extend them even further.

PN40

THE VICE PRESIDENT: Thank you, Mr McKinley? Mr Morrison?

PN41

MR MORRISON: Thank you, your Honour, and I do apologise for my lateness. Unfortunately I was on another matter.

PN42

THE VICE PRESIDENT: That's fine, Mr Morrison.

PN43

MR MORRISON: I won't go over the grounds that Mr McKinley has covered except to emphasise the fact that our action is protected. It is aimed at advancing the claims that we have made and continue to make. I'm not sure of Mr Russell's application I presume under 170NA for the Commission to assist in conciliation with regard to reaching an agreement. We're not even convinced that that's the company's agenda to reach an agreement because we've been trying as Mr McKinley said for 12 months and we are stuck it seems completely on very, very key issues to our membership.

PN44

So I'm not sure what would be achieved by this notification here today, whether it is just to reiterate the fact that the Workplace Relations Act enables the workers to take protected action and where does it go. So what I'd be seeking when Mr - - -

PN45

THE VICE PRESIDENT: Well, on the face of it, Mr Russell, and his client are eager to pursue discussions with a view to reaching an agreement. Mr McKinley indicates that his members are eager to pursue discussions with a view to reaching an agreement. I presume that's your position as well.

PN46

MR MORRISON: It has always been our position.

PN47

THE VICE PRESIDENT: Mr Russell's application is expressly for the purpose of seeking the assistance of the Commission to conciliate with a view to bringing the parties together and making the agreement.

PN48

MR MORRISON: Well, with respect, your Honour, there is nothing to stop the company from contacting the unions well before seeking the assistance of the Commission but if we're here we have your authority to assist us and perhaps we might be able to move forward. The union is not opposed to that proposal but to emphasise our actions are protected, our workers have used the requirements of the Workplace Relations Act to further their claim and I don't see, as you yourself said, that the Commission really has any alternative but to assist in conciliation and to emphasise that to our members because I think that this is the basis of this claim to somehow try and put the fear of the law into our members.

PN49

THE VICE PRESIDENT: The members can be well assured that the Commission can't force the parties into any agreement, specifically it can't force the unions into any agreement, and if they are not happy then obviously the unions won't be happy unless they have the support of the members.

PN50

MR MORRISON: Thank you very much for that.

PN51

THE VICE PRESIDENT: That's fine. So all of the parties here are happy for the Commission to proceed into conciliation.

PN52

MR MORRISON: We certainly are.

PN53

THE VICE PRESIDENT: Before adjourning into conciliation can I just, Mr Morrison, get you to identify what you see as the key sticking points at the moment. If it is convenient to do it by reference to the Otis offer that would be helpful.

PN54

PN55

MR MORRISON: Yes, it would be. The key points, as I understand them, are the 36 hour service which is on the second page, the rates proposed by the company.

PN56

THE VICE PRESIDENT: What's wrong with the 36 hour service from your members perspective?

PN57

MR MORRISON: I think it is more an entirety of that. It is a total package and it is not that easy to take one particular line because it has to be read in total and I think that would be better brought out at - - -

PN58

THE VICE PRESIDENT: But the unions want a 36 hour week effectively and the company is apparently prepared to offer a 36 hour week effectively but there is an argument about how it is implemented, is that a fair summary?

PN59

MR MORRISON: Yes.

PN60

THE VICE PRESIDENT: Okay, the rates?

PN61

MR MORRISON: The rates. The unions position is that the original log of claims served on 2 April was 80 per cent over the three year period.

PN62

THE VICE PRESIDENT: You have been offered 12.

PN63

MR MORRISON: We have been offered 12, yes. The project allowance and the issue of fares and travel.

PN64

THE VICE PRESIDENT: What's the unions position on the project allowance, what's the AMWU position on the project allowance.

PN65

MR MORRISON: We're looking at $1.50 comparable to that which currently is now in our construction industry agreements and the fare and travel will be - - -

PN66

THE VICE PRESIDENT: What are you after in fare and travel?

PN67

MR MORRISON: Just bear with me, your Honour. Mr McKinley, might be better - as expertise in that, your Honour.

PN68

MR McKINLEY: Thank you, your Honour. In fares and travel what we've been saying for payments for the days not worked on the 36 hour week, payments for days not worked we would like that lifted so it falls in line with the other days off.

PN69

THE VICE PRESIDENT: Is that under the fares and travel column in the fares and travel rate? On days not worked where is the reference to that?

PN70

MR McKINLEY: Page 3.

PN71

THE VICE PRESIDENT: I see, the last bullet point.

PN72

MR McKINLEY: Yes, it is also on the fourth bullet point as well. Currently the employees get paid for their fares and travel on any rostered days off, we would like that to continue at the new rate as well. The company's offer of a dollar per day and a $1.50 per day for the two varieties of fares, those with vehicles and those without vehicles. Sorry, those with the CBD mechanics and those with vehicles, we're asking for a larger increase in lieu of another claim that we had within our log of claims rate for city allowance.

PN73

THE VICE PRESIDENT: So that's the non-company vehicle holders?

PN74

MR McKINLEY: Yes, so the non-company vehicle holders was a dollar per day per year, so essentially that's a $5 a week rise. The CBD maintenance mechanics now originally - - -

PN75

THE VICE PRESIDENT: What do you want rather than what's offered?

PN76

MR McKINLEY: The non-company vehicle holders, essentially a dollar a day, was tied in as Mr Morrison said into a total package, and we would have been prepared to accept that if some of the other offers had been accepted as well. But, as it stands when you tie the whole lot in together we would be looking at an increase there, well, it would depend on where the company moved to.

PN77

The CBD maintenance mechanics this was in lieu of an allowance that's paid within the industry at other companies, a city allowance, virtually to cover the cost of the anomalies of working in the city, it is essentially 50 cents or $2.50 a week, goes nowhere near what we were asking for originally.

PN78

THE VICE PRESIDENT: There's an increase of $1.50 a day.

PN79

MR McKINLEY: A $1.50 per day, but it is only essentially 50 cents more than what they would have got if they were weren't working in the city, the city mechanics don't have cars either. It becomes a bit complicated but the CBD maintenance mechanics fall under the non-company vehicle holders so essentially they would have got the dollar but then the company has offered an extra 50 cents for those that work in the CBD.

PN80

THE VICE PRESIDENT: So it doesn't double up, you don't get the CBD maintenance.

PN81

MR McKINLEY: No, no, it is not the dollar plus, the dollar 50. If it had of been that we would probably have looked on it fairly favourably.

PN82

THE VICE PRESIDENT: Does that cover the areas of disagreement.

PN83

MR McKINLEY: I would have to say that's the core issue. There is some other wording and issues and stuff that I'm sure will come up in time but that is the crux of the matter at the moment.

PN84

THE VICE PRESIDENT: Okay, fine. I'll adjourn into conciliation at this point.

OFF THE RECORD [3.00pm]

RESUMED [4.00pm]

PN85

THE VICE PRESIDENT: Following that conciliation it is clear that there can in fact be constructive discussions between the parties and in fact both parties are eager to pursue the negotiations and to reach a concluded agreement. It seems to me that that process would be facilitated if the workers were minded to have a pause in their industrial action of around about a week. Obviously, that's a matter that needs to go back to a mass meeting given that the mass meeting has already approved the industrial action.

PN86

So I'm minded to recommend and do recommend that the workers give favourable consideration to pausing their industrial action on two bases. Firstly, that any such pauses without prejudice to the rights that the union has arising from the service of notices that it was intending to take industrial action including the notice that affected the period to 19th of this month. Secondly, it needs to be on the basis that there will be intensive meetings in the period of the pause. I understand that the company's representatives are more than happy to meet intensively over the next couple of days and obviously the union has indicated its preparedness to meet as well.

PN87

There was a possibility of doing something about midday tomorrow, that can occur I think on what both sides have said. Alternatively, it could be an all day session on Thursday or in addition there could be an all day session on Thursday, say that Mr Russell will have a two hour block in the middle of the day that he has to meet a prior obligation. The Commission's premises could be used for those meetings and I can arrange for a member of the Commission to assist when required as a mediator or conciliator in relation to those discussions as I apprehend it the parties are happy with conducting it in that fashions. Is that right, Mr Russell, on your side?

PN88

MR RUSSELL: Yes, your Honour, the file detail we have to confirm is the availability of one of the management representatives for tomorrow. We can't do that at this present time but we should be able to do it fairly shortly after the conclusion of today's proceedings, if it pleases.

PN89

THE VICE PRESIDENT: Could you be in contact - who is the sort of lead negotiator on the union's side - is one of you prepared to be the contact point, Mr Morrison or McKinley?

PN90

MR McKINLEY: Yes, that's fine.

PN91

THE VICE PRESIDENT: So, Mr McKinley, you're going to be the primary contact point on the union's side. Mr Russell, could you call Mr McKinley when you ascertain the availability of that management representative to confirm whether or not that there will be a meeting tomorrow at 12 here. I think the large conference room on this floor, that's not the small one that you were in but the other one, I think it is 15B, is probably large enough to accommodate the size of people that you're talking about so that room can be used if there isn't a larger room available, there probably will be. My associate perhaps could take the mobile telephone numbers of the two representatives and Mr McKinley and Mr Russell and she can contact you if we can find a larger room and I'll get her to ring you also when I've been able to locate a member who can assist in the role of mediator or conciliator.

PN92

MR RUSSELL: Yes, your Honour. Could I have an indication from the unions as to when the mass meeting might occur and that might assist in the programming of tomorrow's meeting, if it pleases.

PN93

THE VICE PRESIDENT: Yes, Mr Morrison.

PN94

MR MORRISON: Yes, your Honour, I can confirm that the union would be conducting a mass meeting at 11 o'clock tomorrow as the Tom Mann Theatre. It would actually be of assistance to the union, putting the recommendation from myself, if the company could assist in ensuring that as many employees as possible are contacted to advise them of that meeting and its location so it can put to the members.

PN95

THE VICE PRESIDENT: So you want the company to do the contacting rather than the union?

PN96

MR MORRISON: No, to assist in contacting and we can perhaps do that after this hearing that we could get together to find out the way we can maximise the contest we would be seeking the assistance of the company.

PN97

THE VICE PRESIDENT: I think that's probably practical, Mr Russell, it may stick in the company's craw to do it but it is probably practical.

PN98

MR RUSSELL: We will endeavour to indulge Mr Morrison's request in this occasion, if it pleases.

PN99

THE VICE PRESIDENT: So far as the mass meeting is concerned, notwithstanding that I've made that recommendation, the members shouldn't be under any illusion that I have any view that both have been acting contrary to the act, prima facie they have been acting within their legal rights under the Act. It just seems to me that in all the circumstances everybody's interests are likely to be advanced if there is a brief pause and there will certainly be every opportunity for the union to engage and the members to engage in effective industrial action if this brief pause doesn't resolve in a firm agreement.

PN100

MR RUSSELL: We shall raise all those points.

PN101

THE VICE PRESIDENT: Thank you, is there anything further?

PN102

MR RUSSELL: Your Honour, we'd probably prefer a report back at the end of this process.

PN103

THE VICE PRESIDENT: At 3.00 o'clock on Tuesday the 24th, be a suitable time for a report back.

PN104

MR RUSSELL: No, 2.00 o'clock would be fantastic, your Honour.

PN105

THE VICE PRESIDENT: Does that suit the union's side, 2.00 o'clock on Tuesday, 17th a week from now. Sorry, Mr Russell, is that a suitable time?

PN106

MR RUSSELL: Yes, that's a convenient time.

PN107

MR McKINLEY: Yes, the unions are fine with that date.

PN108

THE VICE PRESIDENT: So I'll list the matter for 2.00 pm, on Tuesday 17th of February 2004, before myself but that listing may be vacated in the event that another member of the Commission becomes more thoroughly involved with the detail and the progress of the negotiations in which case it would probably be more sense to have that member do the report back and make a list of when it suits them. The Commission is adjourned until that time.

ADJOURNED UNTIL TUESDAY, 17 FEBRUARY 2004 [4.07pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #1 OTIS OFFER DATED 23/01/2004 PN17