C2005/3786, Transcript of Proceedings [2005] AIRCTrans 1470 (6 July 2005)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 12024-1

COMMISSIONER FOGGO

C2005/3786

AUSTRALIAN POSTAL CORPORATION
AND
COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA-COMMUNICATIONS DIVISION
s.127(2) - Appln to stop or prevent industrial action
(C2005/3786)

MELBOURNE

2.10PM, MONDAY, 27 JUNE 2005

EXTRACT OF TRANSCRIPT OF PROCEEDINGS

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<EXTRACT OF TRANSCRIPT OF PROCEEDINGS [12.35AM]

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PN1

THE COMMISSIONER: I am in a position to provide an ex tempore decision in relation to this matter. Full reasons will be provided in due course. I note that a number of issues have been raised regarding the jurisdictional Commission and the Commission's power to exercise its discretion to issue orders. Quite rightly, the parties have referred to what they common refer to as the test case, a decision in Coal and Allied as briefly described and the decision of Vice President Ross in Patrick Stevedores No 1 Ltd and the MUA. Those are the appropriate decisions and I intend to rely on those decisions in reaching the decision in this application. I am satisfied on the basis of the submissions and the evidence that the onus on the applicant for establishing adequate grounds for the Commission to issue an order pursuant to section 127 has been met.

PN2

I am also satisfied that on the basis of Mr Lunt's evidence and Mr Butler's evidence, together with the submissions of Mr McKenney, that the relevant industrial action which is threatened should not occur. On the basis of AP1 and AP2 and attachment 4 of AP5 which is Mr Lunt's statement, I am satisfied that industrial action is threatened, impending and probable and in those terms meets the provisions of section 127. I am also satisfied that the action which is incited, advised, persuaded or encouraged by the Victorian branch secretary of the CEPU and a number of officials who have been named in the evidence which has been provided by Mr Lunt and Mr Butler, is such that it is industrial action in the meaning of industrial action which is provided for in the Workplace Relations Act.

PN3

I regard the action which is threatened as illegitimate action. I have taken into account in reaching that view that the conduct of the parties is such that it would have me believe that the CEPU and its officers have caused the employees of Australia Post to participate in industrial action which is not industrial action for the purposes as explained in the - I beg your pardon, I withdraw that. The Victorian branch of the CEPU has taken steps to seek that the employees of Australia Post participate in action associated with the Victorian Trades Hall program of action which is industrial action under the Act. By so doing, the CEPU has not complied with the provisions of the extant certified agreement, known commonly to the parties as EBA6.

PN4

The provisions of clause 11 and clause 12 of EBA6 are such that they bind the union as well as Australia Post to not take or engage in industrial action during the life of the agreement whether that action is associated with a dispute over the terms and conditions contained in the agreement or any other industrial dispute arising during the life of the agreement. In relation to the conservative approach which is encouraged by the union on the Commission in this matter, I take note and rely on the decision of French J in the CEPU v Commission Lang in the Electricity Corporation. I concur with the comments which are made by his Honour and despite what any person in the Australian community may think with regard to changes which occur in the community, including those changes which are part of the Trades Hall Council campaign, the scheme of the Act is such that it is able to incorporate and deal with action around a political campaign if it is industrial action associated with that campaign.

PN5

The action being agitated for by the CEPU is in my view, clearly industrial action. In my view it is also clearly industrial action which attracts the jurisdiction of the Commission with regard to section 127 of the Act. I find that the evidence shows that Australia Post will, if the industrial action complained of proceeds, suffer through a delay in its operations through additional cost associated with covering absences and a general inability at this particular time of the year when the rosters are exhausted through the operation of the school holidays and the end of the financial year to be able to make adequate contingency plans as such that exacerbates the cost burden which is imposed upon them.

PN6

Now, it is not trite to argue that a delay in Australia Post's delivery is a matter of no consequence. Whilst I may have little concern if my personal letters are delivered two hours late, three hours late or even one day late, my views are not necessarily reflected by those in the community. They certainly do not reflect the operational standards upon which the operations of Australia post are hinged. On balance then, I believe that the issues which have been raised by Australia Post in relation to the effect that the threatened industrial action will have is a matter which gives weight to the issues of discretion on which the Commission must decide. With regard to the draft order which is marked as exhibit AP4 I make several findings.

PN7

I accept the submission of Mr McKenney regarding the proposal which
Mr Farouque makes in relation to clause 2B. The wording which is there is common wording but this is not a common occurrence which is between the parties at this time. There is no doubt whatsoever that CEPU members, delegates of the CEPU, employees of Australia Post and of course, officials of the CEPU, but particularly the former three categories, who are not working, rostered to work during the period of the rally at Geelong and Melbourne cannot attend that rally. And if I have made a mistake there and said "cannot" instead of "can", let me make that absolutely and abundantly clear.

PN8

It is open to any employees of Australia Post including those employees who are CEPU members to attend the rally at Geelong and at Melbourne and at Wodonga which has somehow fallen off the submissions but is nevertheless mentioned in the initial Australia post submission. If people are not rostered for work or have rostered days off or any other arrangement which means they are not rostered for work, they are eligible to attend the rally. Now, I have some sympathy for the submission which Mr Farouque makes in that regard. If delegated of the CEPU are not rostered for work, they are eligible to go to the rallies and as a matter of caution I accept his submissions on that. And albeit that I have indicated that the form of words in clause 2B of the draft order are common words, I intend to issue this order with the delegates omitted from 2B.

PN9

In relation to the issues raised for the union, I accept that there may be some conclusion through the wording of 3.1A and 3.1B insofar as they refer to any employees of Australia Post and they don't refer to specific employees according to the shift on which they work. On balance, I don't think including day shift employees or specifying day shift employees in either of those sections is going to clarify the matter. It may equally cause as many problems as it solves. I think it is going to be absolutely apparent to employees over the next 48 hours that if they are not rostered for work then they are free to attend the rallies. I note that clause 3.2C of the draft order is not pressed and that part will be deleted.

PN10

As an aside I concur with the submissions of Mr Farouque in relation to that matter as it sets improbable and impractical tasks in relation to the branch secretary. With regard to the date of effect and the term of the order, I intend to issue the order as follows. The order shall take effect from 8 am on 28 June 2005 and it shall continue in force for a period of seven days. That is an amount which is far, far less than that which is sought by Australia Post and it has been determined that way for a number of reasons. It is incumbent upon the Commission to provide in the orders which it may issue pursuant to section 127, provisions which are clear and which are precise. Virtually every submission and piece of evidence which has been provided to the Commission in these proceedings related to stop work meetings which are scheduled for 30 June 2005.

PN11

Whilst there have been some submissions that in general terms there will be ongoing campaigns associated with the issue of the federal government's proposed amendments to Workplace Relations laws, there has been nothing specific put by Australia Post regarding any threatened action beyond that action which is threatened for 30 June 2005. In those circumstances it would be in appropriate to have an order continue in force for a period of six months when the industrial action threatened, found to be threatened and complained of through this application will conclude on 30 June 2005. For those reasons I intend to have the order continue in force for a period of seven days. Would I be pushing my luck at 1 am on 28 June to ask if there are any further issues?

PN12

MR FAROUQUE: I think we .....

PN13

THE COMMISSIONER: I thought so because - - -

PN14

MR FAROUQUE: Perhaps given the - - -

PN15

MR McKENNEY: I only have one, I am not sure how many Mr Farouque has but I just thought I would clarify, Commissioner, just if I have got it correctly, are you deleting from paragraph 2B of exhibit AP4 the reference to delegates?

PN16

THE COMMISSIONER: Yes.

PN17

MR McKENNEY: If the Commission pleases.

PN18

MR FAROUQUE: Commissioner, there is just two issues. 2B, deletion of the reference of delegates there and consequentially also 3.1 where it refers to delegates would necessarily follow. Just a further matter in relation to the duration and the Commission addressed it particularly in response to clause 5, term and date of effect but also the period of six months is referred to in clause 3.1 and that would relevantly need to be adapted to the circumstances of the evidence, seven days duration.

PN19

THE COMMISSIONER: Yes.

PN20

MR FAROUQUE: Commissioner, am I to apprehend that a written order will be issued tomorrow morning or now or - I just need to be clear as to the terms of the order that I will need to convey to the CEPU given the fact that the relevant timeframe. I don't mean to put any pressure upon the Commission obviously.

PN21

THE COMMISSIONER: Any more than you already have, Mr Farouque?

PN22

MR FAROUQUE: Well, Commissioner.

PN23

THE COMMISSIONER: I think the issue you raise is relevant. We should briefly discuss that off the record because it also has implications for clause 3.2. Having reached this, it would be extremely unfair to place undue burden on officers of the union or Australia post arising from this draft order. We will go into conference for a moment.

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<RESUMED [1.02AM]

PN24

THE COMMISSIONER: In relation to the order, it will be issued this morning and the provisions of 3.2 will remain as proposed in the draft order at exhibit AP4. These proceedings are now adjourned.

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