C2004/1569, Transcript of Proceedings [2004] AIRCTrans 765 (26 February 2004)

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TRANSCRIPT OF PROCEEDINGS


O/N 6140

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER MANSFIELD

C2004/1569

SPI POWERNET

and

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

Notification pursuant to section 99 of the Act
of a dispute re a new enterprise bargaining
agreement

MELBOURNE

11.48 AM, MONDAY, 16 FEBRUARY 2004

PN1

MS L. RUSSELL: I am appearing for SPI PowerNet. Leave has previously been granted in this matter, Commissioner, and appearing with me is MR G. BROOMFIELD.

PN2

MR M. GEORGIOU: I appear for APESMA and I am also appearing at this point for the ASU because MR RIZZO is dealing with an issue to do with electricity supply. He will, I hope, at some stage, if we get that far, make an appearance.

PN3

MR W. HAYES: I appear for the CEPU, Electrical Division.

PN4

MR GEORGIOU: Before we proceed, Commissioner, I have a matter to raise before you. It has been pointed out to the company and to the Commission on previous occasions that one of the unions who formed the single bargaining unit - - -

PN5

THE COMMISSIONER: Yes, the AWU.

PN6

MR GEORGIOU: - - - has not been - they are not on the notification and I am asking that, given the seriousness of this, that they be present for the proceedings, especially if we are going into conference at any point, and some of the issues may be relevant to them. I think it is important that we have them present and that they be notified.

PN7

THE COMMISSIONER: We will take note of that, Mr Georgiou, and make sure it occurs in the future.

PN8

MR GEORGIOU: Thank you.

PN9

THE COMMISSIONER: Ms Russell?

PN10

MS RUSSELL: Commissioner, just on that point, why the original section 99 didn't name the AWU, a copy of that notice was sent to them after the first hearing. I understand the AWU has two or three members at SPI PowerNet, that it hasn't been involved in the single bargaining unit negotiations, that the - if you like, the custom and practice with SPI is that - and the AWU tends to come into the negotiations when they are close to or essentially agreement has been reached.

PN11

THE COMMISSIONER: Is that very far away, Ms Russell, do you think?

PN12

MS RUSSELL: I do, unfortunately, Commissioner, think that it is far away and that is really why we are here today, and certainly in terms of today's hearing, Commissioner, when I saw the notice hadn't gone to the AWU, we made arrangements for it to be sent to them.

PN13

THE COMMISSIONER: Sure. I think we have all noted, Ms Russell, that the AWU should be notified and just to be strictly accurate that should be done in the future.

PN14

MS RUSSELL: Yes, Commissioner.

PN15

THE COMMISSIONER: Now, just before you start, Ms Russell, I have read the file in this matter and I read the proceedings on transcript of the last hearing before Deputy President Lacy on 3 February, and I have also examined the claims which have been notified in the notification of the bargaining period by the respective unions, and also the correspondence from yourselves to the unions which have encouraged the unions to become involved in serious negotiations around those claims. I have also noted that the unions on the previous occasion did indicate that they were not seeking the assistance of the Commission by way of conciliation at this point.

PN16

MS RUSSELL: Yes.

PN17

THE COMMISSIONER: And that is something I would encourage them to think again about. But, having said all that, perhaps you could update us about as to where things are at the moment.

PN18

MS RUSSELL: Yes, Commissioner, that is very helpful. So really what I will do is just take you to what has happened since the matter was before Senior Deputy President last. There have really been two significant developments. First of all, if we take the negotiations, the situation is that there has been a further meeting where the unions have in effect confirmed their original position in relation to a number of key claims. What that means, Commissioner, is essentially that the parties are a long, long way apart on those key matters.

PN19

And Commissioner, you would have seen from the file that there is a recognition that there are a number of claims which are in effect preconditions to reaching agreement, and our submission, until there are some movement on those claims, there really is not much prospect of the parties reach agreement. So, what we - - -

PN20

THE COMMISSIONER: When you say that these are preconditioned, Ms Russell, are they preconditions by the unions on the employers, or the employers on the unions or a bit of both?

PN21

MS RUSSELL: They are essentially preconditions by the unions. They are matters where the parties, as I say, are a long way apart, and there are a number of other matters that then fall off those issues because, essentially, as often happens in negotiations, what the employer has said is "Well, if we manage to resolve those key issues, then we think we can accommodate your claim on the other issues". So they are key claims by the unions, and as I say, really there are a lot of other matters that fall into the category of being able to be agreed, the difficulty is moving on these key issues.

PN22

THE COMMISSIONER: Yes.

PN23

MS RUSSELL: But, clearly, the parties are a long way apart on those key issues.

PN24

THE COMMISSIONER: Yes, I have been reading the media reports of the claims made by the unions, Ms Russell, which go to issues such as working hours, no doubt such as remuneration, such as the employment of apprentices and also noted the very long list of issues that have been raised by the unions in relation to the claim generally. So, yes, but there are some key issues, as you note, and they go, as I read it so far, to working hours, probably remuneration and employment of apprentices. But there may well be others.

PN25

MS RUSSELL: There are probably two other key issues, we would say, Commissioner. There are a number of matters - - -

PN26

MR GEORGIOU: Commissioner, I object to this. I object to matters that are subject of negotiations being raised on the public record, especially given that they are representatives of other electricity companies here today who may gain an advantage - - -

PN27

THE COMMISSIONER: Mr Georgiou, if I could interrupt, we are simply talking about matters which are already on the public record. In various newspapers that are available to every inhabitant of the State of Victoria - - -

PN28

MR GEORGIOU: Well, I have not read them. I don't believe - - -

PN29

THE COMMISSIONER: You don't read newspapers, Mr Georgiou?

PN30

MR GEORGIOU: I don't - I have only read some selected comments and one - when I started as a union official, I was warned to be wary of the bourgeois press and their reporting of them. I know and I have been around in these negotiations from the beginning to know what are the issues, and the issues that may have been presented by either the Commission or Ms Russell are not the issues that we believe are crucial. I am not going to put on the public record what I believe or the unions believe are the key issues and I object to matters being put on the public record of what may or may not be bargaining matters before the parties. If the Commission pleases.

PN31

THE COMMISSIONER: Thank you, Mr Georgiou. Mr Georgiou, I will take that as an objection to what Ms Russell is saying, and I have to say, I don't accept it as a legitimate objection. Ms Russell is simply outlining from the perspective of the employer, what is their understanding of the key issues. Now, if it differs from yours, you are fully at liberty at a later point to say to the Commission, either just as a brief statement, to say you disagree with that list of key issues, and then you can either stop at that or you can say to the Commission, these are the key issues from our point of view. And quite frankly I would have thought that the employer, not only this employer, but all employers in the power industry at this point, seeing that you are into a bargaining period, as I understand it, there are some industrial bans being applied and you are in negotiation that all of the power industry employers would be fully aware of what are, if we could describe it generally, as the key issues at this stage. So - - -

PN32

MR GEORGIOU: I beg to differ, Commissioner.

PN33

THE COMMISSIONER: You don't think so?

PN34

MR GEORGIOU: No, I know - - -

PN35

THE COMMISSIONER: Well, okay.

PN36

MR GEORGIOU: I know that at some companies certain issues are not issues and the same issue is big at one, not at another, and I am not prepared - unless the Commission rules to the contrary, my understanding is that matters that are subject of negotiations and given the application before the Commission today is for conciliation, I can't understand why issues that are before the parties need to be aired on the public record. That is my only point.

PN37

THE COMMISSIONER: Okay. No, that is fine, Mr Georgiou. Well, I am leading to a point in the very near future where I will suggest to the parties we do go off the record and go into some degree of some level of conciliation. So if it makes you more comfortable, Mr Georgiou, it may be Ms Russell is better not to put those matters on the record and we will deal with that off the record in a short time.

PN38

But let us just say for the moment, and I must say, I initiated this little bit of interchange because I made reference to what I took to be some of the key issues from newspaper reports, which may or may not be accurate, depending on what company we are talking to I guess, so Ms Russell, you might just take us through the fact that where we are at the moment without nominating the issues that you see as key at this point.

PN39

MS RUSSELL: Yes, Commissioner, all I would say on that without going to those issues, is that we see that there are a couple of other issues other than those mentioned by you as being key issues. The only matter I really wanted to deal with on the public record is the second development we say since we were last here, which is with respect to the industrial action. When we were last before the Commission, at that stage there had only been notices of stop work meetings. There had not been any notices of specific action at SPI. We now have had notices of industrial action which relate to bans on overtime available. That industrial action has been implemented. It has the potentially, obviously, to have a significant impact not just on SPI but on the integrity of the system. Commissioner - - -

PN40

THE COMMISSIONER: Could you just inform me, Ms Russell, as to which part of Victoria SPI services, please?

PN41

MS RUSSELL: Yes, Commissioner, essentially SPI is responsible for the high voltage transmission lines and perhaps the easiest way of explaining that is that is essentially the big wires and the big towers that - - -

PN42

THE COMMISSIONER: I am aware of - them have to be bigger if they are more high voltage, I understand, Ms Russell.

PN43

MS RUSSELL: That is right, Commissioner.

PN44

THE COMMISSIONER: Yes.

PN45

MS RUSSELL: So, essentially that is what SPI is responsible for and the impact of the bans is such that if you have a situation where a piece of equipment goes out of service, the bans mean that that piece of equipment will not be restored. Now, SPI instructs me that there are approximately 150 incidents each year of this nature and indeed, having a look at the past occasion where you have had equipment taken out of service, there is certainly the potential for equipment not being restored to lead to disruption to customers and indeed blackouts. Now - - -

PN46

THE COMMISSIONER: Any examples of that to date, Ms Russell?

PN47

MS RUSSELL: No, Commissioner, as my client said to me that we have been extremely fortunate both with the weather up until this weekend and also generally with how SPI has been able to manage the system, that it hasn't faced - - -

PN48

THE COMMISSIONER: My air conditioner worked the whole of the weekend, so it wasn't a problem, obviously.

PN49

MS RUSSELL: Yes, Commissioner, but, obviously the concern that SPI has is that it is not a predictable situation.

PN50

THE COMMISSIONER: No.

PN51

MS RUSSELL: It is a situation where you can well go from there not being a significant impact to a significant impact extremely quickly and indeed, SPI reminded me of the situation in September 2001 where indeed there were a number of houses that were blacked out and that is just an example of how quickly a breakdown in the SPI system can impact on customers.

PN52

THE COMMISSIONER: I understand, Ms Russell, that the unions had given some level of assurance to at least some companies that public safety broadly, and perhaps someone can inform me more precisely, will be given priority in the event of any breakdown. Has this sort of assurance been given to SPI?

PN53

MS RUSSELL: Some of the notices, Commissioner, do refer to the fact that the ban on the restoration of faults doesn't apply in cases involving public health and safety. Beyond that, Commissioner, I am not aware of any specific commitment which might be - - -

PN54

THE COMMISSIONER: That is the general assurance that has been given?

PN55

MS RUSSELL: Well that is certainly in the ETU notice. I would need to check the other notices to see whether there is a - certainly there is the same notice in ASU and I am not sure about - - -

PN56

THE COMMISSIONER: APESMA.

PN57

MS RUSSELL: - - - APESMA, Commissioner, but beyond anything in the notices, there hasn't been any other commitments given. Apart from those bans, Commissioner, we have also been advised this morning by the ETU that they are intending to have a stop work meeting of all SPI employees on Wednesday and again, Commissioner, obviously that is a matter of concern to SPI.

PN58

THE COMMISSIONER: How many people are we talking about, Ms Russell?

PN59

MS RUSSELL: I will just get some instructions, Commissioner. About 130 employees.

PN60

THE COMMISSIONER: One hundred and thirty, and are they located throughout the State or are they in one central location?

PN61

MS RUSSELL: No, no, they are located throughout the state, Commissioner. So, Commissioner, obviously the concern that the company has is that you have a situation where there is no likelihood, in our submission, of these key matters being resolved without the involvement of the Commissioner, and clearly you have a situation of escalating industrial action. So we see that there are two scenarios: one, the parties with the assistance of the Commission can get together and try and get an agreement - try and move towards an agreement and hopefully while that is occurring, there won't be any further escalation of industrial action and indeed we would hope that perhaps some of the bans in place might even be withdrawn.

PN62

Alternatively, if we don't have the Commission assisting the parties, we may well be in the situation where the ban does have a significant impact on customers and that everyone will be back here, no doubt, in a blaze of publicity trying to resolve the matter in the situation where it is not likely to be conducive to doing that. So, from those two scenarios, Commissioner, we say the preferable one is that we go into conciliation, we seek your assistance and see where we can get it to. If the Commission pleases.

PN63

THE COMMISSIONER: Thank you, Ms Russell. Mr Georgiou?

PN64

MR GEORGIOU: Yes, Commissioner, I wish I had air conditioning on the Saturday. I sweltered.

PN65

THE COMMISSIONER: I can assure you, my water-based air conditioning system wasn't working very well. My evaporative system -

PN66

MR GEORGIOU: We don't claim any responsibility for that whatsoever.

PN67

THE COMMISSIONER: But the power was there, but the water was not able to do the job.

PN68

MR GEORGIOU: And that is a fairly good example of the fact that the worst day - the hottest day of the year and the fact there were bans protected industrial action in all of the distribution business and in this company, which is the transmission company, didn't over affect customers. And on the issue of public health and safety, can I just address the Commission in this way, not only have the notices of the ASU and APESMA exempted on health and safety, but in this industry we have been around a long time, Commissioner.

PN69

There have been a number of disputes involving generators, involving this company, involving distribution business, every time and the employer knows this, public health and safety has always been exempted, it has been - and our current agreement would say that it would be exempt because custom and practice is mentioned in the current agreement and it is custom and practice in this industry where there is any threat to public safety that is exempt and indeed in the matter that caused the delay before you, Commissioner, the same issue arose with regard to another company, a company that you can negotiate with at times and doesn't spit the dummy like this mob do. TXU, where they also raised exactly the same issue as - - -

PN70

THE COMMISSIONER: They are habitual dummy spitters, you are saying, Mr Georgiou?

PN71

MR GEORGIOU: They are. They should have a little box down stairs for them, but TXU sought the same assurances from the parties and that was given and it is given here by all of the unions. This is the fifth, I think, EBA that we have had with this company and its predecessors. The negotiations always occur about this time. We have had recourse to protected industrial action previously and the same issues were raised and I can't remember any headlines, not that I trust the bourgeois press, but I can't remember any headlines that referred to blackouts or public safety being threatened, and this is the company that if it was going to happen, it would be the one that would be the key.

PN72

I make reference to the previous protected industrial action, because we were in similar circumstances last time around and the late Senior Deputy President Polites, I think, dealt with the matter and basically told us to go back and negotiate and that is what the unions put to you today. The issues that are between of us, some of them are easy, some of them are tough. They always are, Commissioner. What this company seeks to do though, and has sought to do, is to when they don't get their way in the negotiations, they believe it is appropriate to try to get someone else to do their negotiating for them.

PN73

I am not suggesting for a minute that the Commission would buy that argument from them, but they constantly as though they are at a private school, go off to the head prefect and say "Can you sort it out", when really it is just a game of footy, and it is tough. There is no question that the negotiations are tough. The company makes - - -

PN74

THE COMMISSIONER: Even Australian Rules has rules, Mr Georgiou.

PN75

MR GEORGIOU: They certainly do and unless someone can demonstrate that we are not abiding by those rules - - -

PN76

THE COMMISSIONER: Indeed.

PN77

MR GEORGIOU: - - - then let the umpire do it on the ground.

PN78

THE COMMISSIONER: And quite obviously, you are exercising your rights as you are entitled to under the act at this stage.

PN79

MR GEORGIOU: Well the company has a little bit of cheek in taking issue with the stop work meeting on Wednesday that they were advised of. When we previously took similar action and on the previous occasion it was the four unions, not the one, the company didn't come to this Commission and say "We are in strife". There was a State wide report back meeting separate for the ETU. They liked to do it their way, but the ASU and ourselves had a joint meeting and the AWU may or may not have participated with the ETU.

PN80

The company didn't come to this Commission and squeal that there was a problem. What we say to the Commission is that we believe there are some significant issues between the parties. They are no less or more significant than the last time we bargained. The issue that the Commission alluded to earlier on may not be as bigger an issue here as the bourgeois press may have lead the Commission to believe. We say send us away, we have got meetings scheduled - no we haven't got meetings scheduled because the employer - - -

PN81

THE COMMISSIONER: You have reinforcements arriving, Mr Georgiou.

PN82

MR GEORGIOU: Thank God for that. We didn't even schedule a meeting because the company is breaking off negotiations and saying "We will take you to the Commission". They won't reschedule further meetings and we say under the Commission's direction now we should program a number of meetings where we can, according to the rules, play out the game and hopefully there will be a result that satisfies all of the parties present. If the Commission pleases.

PN83

THE COMMISSIONER: Thank you, Mr Georgiou. Mr Rizzo?

PN84

MR HAYES: Commissioner, I just want to make - - -

PN85

THE COMMISSIONER: Sorry, I have just - - -

PN86

MR HAYES: That is all right. Just a point of clarification, the company's - it is true that we indicated to the company we seek a report back meeting on Wednesday. I am not quite sure where the figure of 130 comes from. I don't think I have even got 130 members.

PN87

THE COMMISSIONER: I think the total staff of the company in Victoria, Mr Hayes.

PN88

MR HAYES: It is an ETU report back meeting.

PN89

THE COMMISSIONER: Right.

PN90

MR HAYES: We believe - or I am under instructions it would probably affect about 60 people.

PN91

THE COMMISSIONER: Yes, but I think the answer to my question was what is the total staff of the company in Victoria.

PN92

MR HAYES: Sorry, yes.

PN93

THE COMMISSIONER: Was that the answer accepted effectively?

PN94

MS RUSSELL: Yes, Commissioner.

PN95

THE COMMISSIONER: Of that number you are saying, Mr Hayes - - -

PN96

MR HAYES: We expect about 60 - - -

PN97

THE COMMISSIONER: - - - about 60-odd are yours?

PN98

MR HAYES: We expect about 60 people to attend that meeting and the custom and practice in the past with this company has been that I have notified the company well in advance of 24 hours and we have had approval. I don't think that we have had one meeting rejected and that was the process I undertook this morning where I notified them of that. We also do have an issue outstanding that the company are saying they don't want to pay one of our shop stewards this morning and if I could submit that - - -

PN99

THE COMMISSIONER: Is that the gentleman sitting at the rear?

PN100

MR HAYES: One of our shop stewards, Mr Delaney, thanks.

PN101

THE COMMISSIONER: This is correspondence from the company to yourself?

PN102

MR HAYES: I have just received this this morning, Commissioner, from Mr Broomfield, who is seated here this morning. The company have obviously taken us here for matters of conciliation regarding matters related to the agreement. We expect and we require our shop steward here to assist us in that and the custom and practice has been that they have been paid in the past and we obviously expect that they would be paid today. I mean, matters of principle, not detail - there is issues - they are matters - we need the shop steward here. So that is that.

PN103

THE COMMISSIONER: If I might just stop you at that, Mr Hayes and just turn to the company. It seems to me, Ms Russell, that it is always valuable to have people from the work place in reasonable numbers present at these sort of proceedings. You have a person who is able to go back to the work place who is, you know, working in the company permanently. I am not saying that the union officers - their views would not be respected, but the person who comes from the company is the one who would be listened to most closely, I think, and I find it always valuable to have that - that representation here and I would encourage the company to have another think about the position that I have outlined again, which is, as I read it, saying we are not going to approve; pay Tom off as shop steward to attend the Commission. If the shop steward does attend, it will be in their own time and at their own expense and without the use of company vehicles. You understand what I am saying.

PN104

MS RUSSELL: I do, Commissioner - - -

PN105

THE COMMISSIONER: And I would encourage you to have another think about it.

PN106

MS RUSSELL: I do, Commissioner, and I think it is important to separate out two issues. One is the company giving authority for the employee to be here and there is no issue about that but secondly, we say there is a separate issue about payment. Commissioner, I understand what you are saying and certainly in my discussions with the company, if it was to be a situation where there is some real progress this morning in negotiations, then - - -

PN107

THE COMMISSIONER: You can't put those conditions on, Ms Russell. You can't put the condition on that the unions have got to make "your progress". The unions are going through a process which they believe to be appropriate. We will endeavour today - - -

PN108

MS RUSSELL: Yes.

PN109

THE COMMISSIONER: - - - to make some progress, but let us see whether that can be achieved or not, and as long as the unions are represented in a reasonable manner. If they suggested that 30 out of the 60 members at the CEPU attend, that would not be reasonable. They have one person here. The overall cost to the company is inconsequential and I would suggest, as I said before, the company have a rethink.

PN110

MS RUSSELL: Certainly, Commissioner, we will discuss the comments that you have made too.

PN111

MR HAYES: Just on that, Commissioner, we actually have five shop stewards, with one out of five attending.

PN112

THE COMMISSIONER: Yes.

PN113

MR HAYES: We have kept it to a minimum and obviously as least - - -

PN114

THE COMMISSIONER: Sure.

PN115

MR HAYES: - - - disruption as possible to the company. Well even the five attending, we would still argue the same position, but we have kept it to a minimum of one person out of the five. Outside of that, I concur with what has been said by Mr Georgiou on those other matters. If the Commission pleases.

PN116

THE COMMISSIONER: Mr Hayes, I had just noted that Mr Rizzo had managed to be able to attend after coming from another hearing, I understand, Mr Rizzo.

PN117

MR RIZZO: Yes, thank you, Commissioner. I will just make some brief points, Commissioner. One, I agree with Mr Hayes about the custom and practice in this industry about stewards being paid to attend Commission hearings and I think it is somewhat inconsistent that on one hand the company wants us to be here for a conciliation and on the other hand knocking back a particular person.

PN118

THE COMMISSIONER: Mr Rizzo, I think we have addressed that issue - - -

PN119

MR RIZZO: Yes, but well, I make - - -

PN120

THE COMMISSIONER: - - - and I am sure the company will demonstrate its reasonableness in this matter.

PN121

MR RIZZO: Well, I make this point on behalf of my organisation and on behalf of any future incidences to this effect. While it is a member of the ETU today, it can easily be a member of mine in the future.

PN122

THE COMMISSIONER: Yes, of course.

PN123

MR RIZZO: And I think Mr Georgiou has made submissions, Commissioner, so I won't delay the hearing, but I say that we are meeting with the company. The company has refused to set another meeting time. We are quite willing to meet with the company whenever we can be available because as you know, we have got about six or seven negotiations going on at the moment, but I am sure within a few days time we could meet again and if assurances haven't been given to the Commission already, then the ASU makes the assurances again, that our bans exempt issues of public health and safety and exempt, wherever possible, and to the possible extent residential customers from being affected from our industrial action as well.

PN124

So I think the normal course should take place, Commissioner, and that is that the company should agree with us with another meeting time. We will meet with the company as we are meeting with everyone else. We will progress these negotiations as we have done five previous times in the last seven or eight years where Mr Broomfield, I think, has been at every single one of those, and we are confident that over the appropriate period of time, we will come to a new agreement, Commissioner.

PN125

THE COMMISSIONER: Sure. Thank you, Mr Rizzo. Does anyone else want to put anything on the record? If you don't, I propose to go into a conference of the parties and will just discuss the opportunity that might be available today to progress the Commission's involvement by way of conciliation. Ms Russell, do you wish to say anything at this point?

PN126

MS RUSSELL: Only very briefly, Commissioner, just to some suggestion about PowerNet coming to the Commission prematurely. As you probably saw from the file, Commissioner, there has been some 10 meetings directly between the parties. Discussions since October, I think it is fair to say that the parties are clearly at a point where they can't resolve the matter themselves. The unions have said on the last two occasions before the Commission that there would be progress. Clearly there hasn't been. It seems to us that now is indeed the ideal time for Commission to assist the parties towards agreement, and it seems very strange that somehow the union would be resisting such a proposition. If the Commission pleases.

PN127

THE COMMISSIONER: Good, thank you, Ms Russell. I propose to go into conference and off the record. I would ask those people who are not directly involved to leave.

NO FURTHER PROCEEDINGS RECORDED