AG2005/4966, Transcript of Proceedings [2005] AIRCTrans 1641 (28 July 2005)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 12277-1

COMMISSIONER SMITH

AG2005/4966

FINANCE SECTOR UNION OF AUSTRALIA
AND
TERRITORY INSURANCE OFFICE
s.170NA(1) - Conciliation in respect of Agreements
(AG2005/4966)

MELBOURNE

1.48PM, TUESDAY, 19 JULY 2005

PN1

THE COMMISSIONER: Thank you for your attendance. On the last occasion I had a conference with the parties which was last Wednesday 13th and arising from that conference I put together a process with the consent of the parties and the FSU have responded to that process. I asked my associate if she would check with the employer and the response for me was confusing. So I just wondered where we are - from the employer.

PN2

MR B DUGGAN: Commissioner, if I may, a act on behalf of the employer, TIO. Commissioner, so far as necessary I seek leave to appear on behalf of the employer and with relation to today's appearance.

PN3

THE COMMISSIONER: Yes, I'll hear from you, Mr Duggan, but I'll reserve the question of leave till a later date.

PN4

MS H LEWIS: Commissioner, I should point out that in a phone conversation between Ms Coburn and a little earlier today, I undertook that, although I don't believe there's any necessity or in fact meeting the requirements of the Act, that we'll reserve our position on that as well.

PN5

THE COMMISSIONER: Thanks Ms Lewis. Now, Mr Duggan, can you update me?

PN6

MR DUGGAN: Commissioner, you might just be able to go back a step in relation to the information that you were seeking from the TIO. Just for my own benefit to understand what you're seeking.

PN7

THE COMMISSIONER: Sure, Mr Duggan, what had happened was that I understood that we'd reached an agreement as to a way forward where we would, if you like, conduct an informal ballot of employees to get their views on the two positions of the parties which would allow the negotiators then to take that into account. The TIO had a view that the proposition that it had come to was an entirely acceptable one and would be supported by employees. The FSU said there was a deep concern about some elements of that and they wished to continue further negotiations.

PN8

The process that had been put in place was that I drafted a circular that would go out under my signature and I left for the parties to include their position. So the circular said a document had been forwarded to you which is not an agreement between TIO and Finance Sector Union, however, it's the final offer made by TIO. Then I put a, "TIO believe", and I've left a blank where it would put its views and, "FSU believe". Then the circular went to say that this is really to invite you to consider the positions advanced and see whether or not negotiation should recommence if the final position advanced by TIO or if the final position advanced by TIO was acceptable.

PN9

So in the context of conciliation, I thought we had an agreed way forward. FSU responded, TIO hadn't advised me of anything and I must say then there was a curious response when I was asking for an update. It's just that I'd been left in the dark and it's not an area that I enjoy being in.

PN10

MR DUGGAN: I understand that Commissioner. Commissioner, I think the position might be that there could have been some confusion over the timing for the requirement that was set by the Commission. My instructions were that the input that was required to be provided by TIO was required by the end of today. I could indicate to the Commission that so far as the TIOs spiel that was required to be put in to the document that is contemplated, that is something that has been prepared in a draft form and is something that TIO at a senior level are still considering.

PN11

I can indicate that it's certainly TIOs intention to circulate that particular spiel by the end of the day.

PN12

THE COMMISSIONER: Send it to me.

PN13

MR DUGGAN: Certainly, circulate it. I understood it was to be provided to the Commission as well as the - - -

PN14

THE COMMISSIONER: No, it wasn't. Mr Duggan you're obviously at a disadvantage. Firstly, it was my understanding that TIO had some urgency to get matters out by 18th and we were aiming to get it out by 18th. I thought some preliminary work and some publishing had taken place, that the proposed agreement had already been circulated and there was an expectation that a vote would be taken commencing on or about 18th. That's why I anticipated that there would be a need to deal with the matter urgently so that it could be dealt with by 18th.

PN15

Secondly, I had not anticipated nor had it been agreed from my recollection in any event, that the parties would separately seek to attack the workplace. I was certainly not of the view that the FSU could go ahead and seek to organise the workplace, nor that TIO could go out and put its material out. I thought there was an agreement reached for a coordinated approach where the Commission would supervise the, if you like, the preliminary ballot, so that there was no suggestion that one side was acting inappropriately or not. I'd arranged for an officer of the registry to be available and a circular would have gone out under my signature, they would have had a chance to vote. It's abundantly clear, if I may say, abundantly clear from the email that was sent to the representative of TIO at the time. It could not be read in an ambiguous way.

PN16

MR DUGGAN: Commissioner, may I speak? My friend has only been introduced into the relationship with TIO in the last few days. He hasn't had the background. Just to let you know, it was never our intention to send a separate advice today but it was our intention for you to have our advice so that you could consider that with the union one as well response. Just to put that into the perspective.

PN17

THE COMMISSIONER: Thanks.

PN18

MS COBURN: Commissioner, can I first point out TIO have chosen to change their representation. They were using an outside agent at previous proceedings and they've obviously not had the opportunity to brief the solicitor regarding today's proceedings very well. However, that shouldn't be a delay to the process because he hasn't been briefed adequately. The parties clearly, when we left here on Wednesday, you undertook to get the draft circular out to the parties that night which you did. The parties undertook to get back with our draft pieces to you ASAP to try and meet TIOs deadline or timeline of 18th for the indicative ballot, given that people were expecting a ballot to be conducted based on what TIO had told them.

PN19

We provided our bit of it the following day and that's why we called yesterday because we hadn't heard anything, "Well, what's happening, nothing's hit the workplace". We'd let members know that we were coming to the Commission, that we'd sought a conciliation hearing as per our bargaining period of notice. We reported back to one of our reps to pass on to members that a proceeding had happened in the Commission, that the Commission was going to be conducting an indicative ballot and to wait until you got that material. On the Friday afternoon TIO sent an email to all employees headed, Certified Agreement Update:

PN20

Good afternoon. The CA working party and TIO have been striving to finalise and implement the new CA. ...(reads)... We will send out another update on Monday when we have further developments.

PN21

I haven't seen another communication from yesterday, but I've also become aware today that TIO have started advertising positions within TIO and they're advertising it with the new classification structure gradings even though the new structure isn't in place in the agreement and there hasn't even been an indicative ballot. On Friday, there was a communication to the secretary of our South Australia/Northern Territory branch from a government advisor asking what the differences were, what our proposed solutions were particularly on the issue of the lost increments issue that we detailed to you on Wednesday.

PN22

As a result of that conversation a brief email which outlined the three different alternatives that we proposed as possible solutions was emailed through to that government advisor yesterday. In that conversation I'm told that the advisor said that he'd been told by TIOs CEO that neither party - neither TIO nor the FSU wanted a ballot. That is the ballot that we'd agreed to on Wednesday. I can assure you that is not the case. We're committed to that process. We fulfilled our part of the undertaking by providing our draft for insertion in the circular and we're still waiting for it to happen.

PN23

THE COMMISSIONER: Mr Duggan, if I could bring you in now again just to bring you up to date procedurally where we are. Whilst I've gone on the record at this stage, I thought it was important our previous conference was off the record and it was approached on a consensual basis. At this stage I have not been asked, nor have I sought any submissions on whether or not procedural orders ought to be made in the negotiating approach. I've simply sought to proceed on the basis of the parties wanting to work through the issues confronting them and to find the best way of reaching a settlement.

PN24

To that extent, I have no vested interest in any timing. It really is a matter for the parties and if there needs to be more time to deal with those matters that are still between them or more time to discuss the nature of the indicative ballot, I'm quite relaxed about that. What I apprehended from Ms Lewis' submission just then is she's a little anxious about a communication that's gone out and I can understand that. From my point of view, provided there's an even keel on this ship we're steaming forward on, I've no vested interest in any timing. I was just a little anxious that the processes I'd put in place, from my understanding of where we left seemed to be in an area of great uncertainty.

PN25

That's why I convened this hearing to put some more certainty into those processes.

PN26

MR DUGGAN: Commissioner, thank you for that. I can indicate that from the TIOs perspective that the process that has been set is to some extent for them, unchartered waters. I certainly understand that that has led to at least my involvement in relation to the process so that TIO can have a better understanding of why the process is going in a particular direction.

PN27

THE COMMISSIONER: It's by consent, that's why it has.

PN28

MR DUGGAN: I understand it has been by consent and I'm not suggesting that it hasn't been but the point is, I suppose, that in the past, the TIO in conjunction with the union has facilitated a process between themselves. There hasn't, to my understanding, been previous Commission involvement in terms of the process itself. There was a lack of understanding, I suppose, from their perspective - - -

PN29

THE COMMISSIONER: Sorry, Mr Duggan, if I may interrupt you, there's one further ingredient that I think's important to mention to you. As I understand the process that TIO and your client can advise you and I'm happy to give you some private time where I send everybody out of this room, including myself and you can use our video linkup capacity, but as I understand what your client's original concept was that they put the agreement out to vote and allow the vote to determine whether or not there was an agreement. What I raised, as a matter of jurisdiction in the operation of the Act was that before you could put out an agreement under l70LJ, for the vote, you had to have agreement.

PN30

You couldn't do it the other way round. An LK is another matter but your client expressed the view strongly to me on the last occasion that they weren't in the business of going down the LK route they were in the business of going down the LJ route. On that basis I said to them, as a matter of jurisdiction, there had to be an agreement in writing that was then sent out for vote. You couldn't send out something for vote and then suggest that at the end of that vote that in itself produced an agreement.

PN31

MR DUGGAN: Yes, and I understand how it was raised on the last occasion and Commissioner, I could indicate that that has been the subject of discussion as well.

PN32

MS COBURN: Can I ask something Commissioner? Since our last hearing, we've had a lot of discussion because over the past 15 years we've had a very good relationship with the union. We would like this matter resolved as well and I think we would prefer it to be a conciliation that we do together but what we've been trying to work out is, if it goes to vote, we've got to have one vote, I guess, so therefore, we've been trying to figure out how can we agree to this and have one vote. Because if we send this out and what we're trying to achieve is an LJ agreement then if it comes back ..... will the union support it? If it's not then we're going to have to go to another vote and so on. We just feel that whole process to our staff, is very confusing.

PN33

THE COMMISSIONER: I understand that but in any event if you have an indicative vote you're still going to have to have in accordance with the Act another vote to vote upon the agreement. I heard Mr Duggan say that's been the subject of some discussion. There might be another view that would persuade me that the proposition that I just advanced to you was wrong but I'd be interested to hear it. There's only need for one vote if you reach agreement. As I understood the proposition put by TIO on the last occasion it was - and I suppose to put it bluntly - they you believed the FSU was being unreasonable in its opposition to some of the issues that you have offered and that you thought you would have overwhelming support from your employees to accept the offer that you made and that you weren't proposing to go into negotiations with the FSU to modify your final offer.

PN34

That's when I raised with you the proposition that you can adopt that an approach with an LK because it's a document that you're then putting to your staff to say, "Do you accept this, or don't you?" As soon as they vote and you create a valid majority, then you've got an agreement. If you're down the LJ route, then you've got parties to the agreement and then from there you've got a ratification process that requires a vote. So, if we have an indicative vote, then you have two. If we don't have an indicative vote then the only way that the parties could move then is for you to re-enter negotiations and see whether you can reach agreement.

PN35

As I apprehended the position put on the last occasion, TIO had reached a stage where it was unable to re-enter negotiations because it believed that the proposals put forward by FSU were unreasonable and that that was your final position. If you wish, we can facilitate a round table discussion to see whether or not the parties can reach agreement. But that might require you being in a position of saying, "Well, look the position we advanced on the last occasion, whilst we say it's our final position, we're prepared to hear, we're prepared to discuss and if we're persuaded, we're prepared to move".

PN36

MR DUGGAN: Commissioner, I'd like to have an opportunity to discuss that position with TIO privately in a moment.

PN37

THE COMMISSIONER: Of course.

PN38

MR DUGGAN: I can certainly indicate that I think the point that Leanne was trying to make was that from TIOs perspective, if there was to be an indicative vote, it would like to understand the FSUs position. If that vote for instance is in favour of the agreement because I think from their perspective it seems that it is a waste of resources to have that vote in circumstances where there is a favourable vote and it's confident it will be, if the FSUs position simply is, "Well, that's not going to change our view about reaching an agreement with TIO".

PN39

THE COMMISSIONER: Yes, I follow.

PN40

MR DUGGAN: But we certainly take your point in relation to reaching an agreement with the union before the actual vote of the people who would be affected by the agreement. Commissioner, in that regard, we would have to concede that there are some legal obstacles to having an agreement certified if the agreement with the union occurred after, rather than before the vote of those employees affected by the agreement.

PN41

MS LEWIS: Commissioner, just perhaps picking up on a few of those points. First of all, just to get on the record, because we were off the record last time. We said that it's not only flawed and not capable of being certified as an LJ agreement because there wasn't an agreement before it was put to ballot but it's also flawed if it were to be purported to be an LK agreement because the information that was provided to staff didn't disclose all of the changes that were involved in the agreement and also misrepresented that the union had agreed to it. The comments about, this is the first time it's happened and previously it's just been sorted out between the union and TIO, that's true but that's forgetting to mention, that this is the first time that TIO have walked away from the negotiating table before the matters have been resolved and gone out to what purported to be an agreement to go out to a staff ballot.

PN42

As to whether if the indicative ballot were to be a majority voting, yes, whether the union would commit to supporting that agreement, I can't give such a commitment. I'm not saying that we mightn't but every single agreement that's negotiated on behalf of the FSU has to be signed off by our national executive and this agreement would be no exception. So that would be up to our national executive to make that decision.

PN43

THE COMMISSIONER: Where do you see the utility lying then in having an executive?

PN44

MS LEWIS: What I was going to say is that the reason that we suggested that an indicative ballot be conducted and that further that it be conducted under the auspices of the Commission, was that TIO in walking away from the negotiating table said that they didn't agree with the FSU and that they'd go and find out what their staff had to say about it. I mentioned that they could have done that in any number of ways rather than purporting to put the agreement out to ballot to then have it certified if it was voted up. One of those things could have been a survey or an indicative ballot and therefore, the suggestion of why doesn't it become an indicative ballot to see whether people do like it or not.

PN45

As far as TIOs desire that there just be one ballot, I'm more than happy to accommodate that and the way that can happen is we'd be more than happy to forego the indicative ballot, if means return to the negotiating table. Which means that all the ballots be held in abeyance, staff must be advised that negotiations are resuming and we'll see what comes out of those resumed negotiations.

PN46

THE COMMISSIONER: Do I understand you correctly to say that at one level you don't mind how TIO find out from their staff what their views are, so long as it's purporting to be voting for an agreement, the vote of which is a prerequisite to certification.

PN47

MS LEWIS: Yes and no. A qualified yes - I did mention last time that I was surprised that TIO hadn't already undertaken that gauging of staff reaction prior to recommencing negotiations which would be the normal course of events in any bargaining. I suggested there were a number of ways they could have done it and could do it. However, the reason that we then went on to think that an indicative ballot under the auspices of the Commission was the best way to do it was we thought that that would be the way the people would be less intimidated. It was then easier, "would you accept it, would you not?", then send the parties back to the negotiating table and if it was done by the Commission it would be genuinely anonymous and that people wouldn't have fear of reprisal.

PN48

THE COMMISSIONER: I guess in one sense, Mr Duggan, it comes down to this. If there is a desire to only reach an LJ agreement, then it's probably access to a member of the Commission to try and facilitate those discussions and to, in the context of that facilitation, try and knock off any edges which are thought to be unreasonable.

PN49

MR DUGGAN: Commissioner, I think that in terms of where we are at the moment it's probably appropriate for me to have a private discussion with TIO about where to go from here. I understand certainly, how it has come to be that the Commission has put to the parties that this is a process by which we go forward. I think though, that TIOs understanding of the consequences of that particular process are different now to what they were at the time it was centred to what was going to occur. In particular, Commissioner, the issue that Leanne and myself have raised around what will be the consequence of a yes vote in relation go the indicative vote is an important issue from TIOs perspective.

PN50

THE COMMISSIONER: Sure, we'll adjourn for 20 minutes. Do you want to use these facilities or would you prefer just to use a private phone and talk to your mobile.

PN51

MR DUGGAN: I have a mobile, Commissioner.

PN52

THE COMMISSIONER: Fine, why don't we adjourn for 15 minutes. Mr Duggan, in your discussion with your client, could you also pick up the issue that Ms Lewis raised about the representation to the staff of the progress of the matter and the agreement. As I said, as yet, nobody's asked me to make procedural orders in relation to the negotiation. But it can't be that the negotiations are characterised in a particular way, if in fact they're not at that point. We'll adjourn for 15 minutes.

<SHORT ADJOURNMENT [2.17PM]
<RESUMED [2.44PM]

PN53

THE COMMISSIONER: Mr Duggan.

PN54

MR DUGGAN: Commissioner, thank you for that time. Commissioner, perhaps dealing with the indicative vote to begin with, in relation to that I've had an opportunity to further discuss the indicative vote with TIO. TIOs position is that it believes that there is widespread support for the agreement that has been circulated to its employees. It recognises that there has not as yet, been an agreement with the FSU in relation to the proposed agreement. In terms of an indicative vote, Commissioner, my understanding is that that was a proposal that was discussed on the last occasion and jointly agreed to by the parties on that occasion.

PN55

I guess that having done so, TIO has given further thought to such a vote and on reflection is concerned that the vote being an indicative vote doesn't actually take the process any further because there is obviously no commitment from the union that if the vote is in favour, which TIO believes that it will be, that there will therefore be an agreement from the union as to the agreement itself. So, I guess, having said all of that, Commissioner, the position of TIO is that it will support an indicative vote on the basis that if the indicative vote is successful, which as I've said, believes that it will be, that the FSU will support the agreement.

PN56

Now, in that regard, Commissioner, we certainly do understand in putting that proposal that it would be necessary for there to be a further vote so the agreement can be certified but it would be the position that a commitment would have been given by the FSU that if the indicative vote is in favour of the agreement being by the terms that will go into a certified agreement that that will have occurred and there therefore will be an agreement between the FSU and the employer. If that is not acceptable to the FSU and we understand that it may be necessary to obtain some instructions from others as to whether that is an acceptable position for the FSU to take, TIO is prepared to enter into further discussions with the FSU in relation to a proposed agreement.

PN57

But I should indicate, in making such a commitment, that it should be clear that TIOs view is that the agreement that has been proposed is a fair and reasonable agreement and that it will be maintaining that position during the course of negotiations.

PN58

THE COMMISSIONER: What is there to negotiate?

PN59

MR DUGGAN: Commissioner, I understand that there are some three or four points that have not been agreed that are what one might call sticking points between an agreement between the FSU and TIO. I don't have instructions as to whether there is any room to move but my understanding is that there is not.

PN60

THE COMMISSIONER: That's what prompted my question.

PN61

MR DUGGAN: Commissioner, all I can say is the indications and my instructions that I've received from TIO is that what has been put on the table is something that they consider to be fair, reasonable, fiscally responsible and something for which there is little room to move if any.

PN62

THE COMMISSIONER: Yes. Where do you see it going? If they've got no room to move, where do you see it going? Do you see me being of any assistance?

PN63

MR DUGGAN: Commissioner, at the end of the day TIO has in the past had a very good relationship with the FSU. It would hope that that relationship continues in the same way. It believes that the proposal that it is putting, namely that the indicative vote come with a commitment from the FSU is an appropriate one to make in the circumstances. At the end of the day, it's for the employees at TIO to determine what terms and conditions should govern their employment. TIO is happy to leave it to the employees to determine that issue. It is confident that the vote will be successful. It wants the FSU not to simply sit back and sit on the fence and say, "Well, irrespective of the result of the indicative vote, we reserve our rights".

PN64

We want them to actually make a position clear by indicating what they're going to do with this indicative vote. Commissioner, with respect, it would be of some use in that case and the vote would have some meaning if it was the case that the FSU was to make such a commitment.

PN65

MS LEWIS: Commissioner, can you just clarify, because I'm still confused. What are the circumstances, apart from wanting us to guarantee that if it's a yes vote that we'd support it. As I said I cannot give that guarantee because that would be up to our national executive to make that decision. That's not a matter of making a phone call and getting an indication of whether that's likely. That's conducting a formal ballot of our whole national executive, which is not an untimely process. But I'm still not certain under the circumstances under which TIO would be prepared to re-enter negotiations with us. Notwithstanding that they said there's not anything they'll move on. Perhaps if Mr Duggan could clarify that?

PN66

MR DUGGAN: Commissioner, I likewise don't have detailed instructions as to what or where TIO might be prepared to negotiate. My instructions have been quite clear from senior management that what's been put - what's considered to be a fair - - -

PN67

MS LEWIS: No, sorry, you didn't understand my question. I understood what you said about that you thought there'd be limited scope and they think it's fairly reasonable agreement, et cetera. But he did say that TIO is prepared to re-enter into negotiations but I'm not sure that I actually understood what the circumstances were of them re-entering negotiations with us. What's the trigger for that?

PN68

THE COMMISSIONER: As I understood it the employer is prepared to begin negotiations or to re-enter negotiations with you, but on the understanding that it believes its position to be reasonable. That led me to ask, "Did they have room to move?" And the answer was, "Probably not".

PN69

MS LEWIS: But why would you bother proceeding with the indicative ballot if they were prepared to re-enter negotiations?

PN70

MR DUGGAN: Perhaps I can explain in this way. The proposition that discussions take place was in the alternative to the first proposition which was that there be an indicative ballot with the FSUs commitment as we discussed. That's the first proposition. And the discussions was an alternative to the first proposition.

PN71

MS LEWIS: Okay, now I understand. All right. We'd be more than prepared to re-enter negotiations, but I suppose one thing that is foremost in my mind, that - I'm not sure that - and this is going to sound very disrespectful and I don't mean it to be, but I'm going to say it anyway. I'd rather be frank. I'm wondering whether there is one TIO position on this round of bargaining or two TIO positions. Given that I feel that there may be a different position being put by the CEO than there is being put by TIOs negotiators in these negotiations. I did mention last Wednesday - so this is not something that's come up out of the blue, but it has been in the back of my mind.

PN72

I did mention that following our last round of negotiations at which TIO walked away from that the table that a subsequent meeting was held that afternoon between Leanne Coburn and the CEO and one of our reps, Denila, and there was a discussion around, "Well, what is it you're looking for, a settlement of the issue without the loss of increments in the new classification structure?" and there was a discussion around that and that the CEO made a comment that, "The money's not the consideration, so how much do you think it will cost us?" He undertook to get back to her with some figures even though there was an obvious difference of opinion between Ms Coburn and the CEO.

PN73

That seems to be continuing in the information that's coming back to us since last Wednesday, particularly the information that's coming back to us from within TIO and the government advisor this week. We're being told that the CEO is saying one thing, but we're hearing another thing here today. That's of concern to me.

PN74

THE COMMISSIONER: I'm not going to question the parties' negotiating position at this stage. Having heard Ms Lewis, that she's unable to give the commitment, I can only then urge the parties to re-engage in the negotiations and see whether or not those negotiations bear fruit. If they don't, arrangements can be made for myself or one of my colleagues to assist in some negotiations and issues such as who is at the bargaining table, matter such as that, can be discussed and procedural orders can be made. Are you content with that course,
Mr Duggan?

PN75

MR DUGGAN: Commissioner, I'm content with that course. I did understand that Ms Lewis would not be able to provide instructions in relation to the first proposition that I put a moment ago. In relation to that, TIO would be certainly happy to enable her some time to seek those instructions. Obviously, if it's going to take some time that would be of concern. But we are certainly happy for her to have the opportunity to take instructions from Steve if that first proposition is something that can't be given.

PN76

THE COMMISSIONER: Sure.

PN77

MS LEWIS: Perhaps I can respond in this way. It would take about a week - start to finish - of our national executive postal ballot and then give you a result. If you're asking me to give you an indication of what I think the likely outcome would be, on past experience, I doubt very much that our national executive would give a commitment to endorse an agreement that doesn't address the problems that our members have strongly identified and that remain concerns. I'm not sure what the outcome would be, but it would take at least a week if I were to get a ballot out this afternoon. That's because a number of people on our executive are honorary officials and so it's a matter of posting it out and having it posted back.

PN78

THE COMMISSIONER: Does that assist you Mr Duggan?

PN79

MR DUGGAN: Yes, it does, Commissioner. I didn't take instructions from TIO as to the time frame, but the proposed time frame being over a week doesn't, from my point of view cause any concern, but I'd need to discuss that with TIO.

PN80

THE COMMISSIONER: It's also in the context that Ms Lewis I think indicates quite subtly that her heart wouldn't be behind recommending such an approach
in - - -

PN81

MS LEWIS: Even if I did make a strong recommendation I couldn't guarantee the outcome.

PN82

THE COMMISSIONER: Given the current structure of the agreement because the union and the members it represents has some apprehension about some of the matters.

PN83

MS LEWIS: Can I suggest that if we're looking for - - -

PN84

THE COMMISSIONER: What are the key issues as you see them?

PN85

MS LEWIS: The three main issues are the issue of the loss of the increments with the introduction of the new classification structure, and the forced - well non voluntary abolition of the sixth week annual leave reduction from six weeks to five weeks annual leave for those employees who were employed prior to
1 January 1995. I think that's the right date but it's definitely January 1995, also, the reduction from 10 per cent superannuation to 9 per cent for some employees who have it now. The people on six weeks annual leave currently, there's about 28 I think and some are interested in cashing it out and others want to keep it.

PN86

It's an irony that one of the things that was to be investigated between the last agreement now was purchasing of additional leave and that's not covered, in fact the opposite. So we're looking for non forced reduction of that six weeks and the non forced reduction of the 10 per cent superannuation people.

PN87

MR DUGGAN: Eight weeks parental - - -

PN88

MS LEWIS: Have I left something off. Yes, the payment of the eight weeks paid parental leave to be paid at the time they're taking the leave rather than four weeks at the time and four weeks six months after you get back. That's of lesser benefit to the people proceeding on parental leave and it's no additional cost to the company. As I was going to suggest, that if we're looking for a timely resolution or attempted resolution and if we're looking at something that's least disruptive to the staff and in fact trying to get things back on to an even keel, then I'd suggest that the latter option of re-entering into negotiations would be the better - a more sensible option, and if necessary seeking the assistance of the Commission.

PN89

THE COMMISSIONER: Sure, I'm happy just to adjourn Mr Duggan and leave it to the parties to seek a re-listing should they want.

PN90

MR DUGGAN: Thank you, Commissioner.

PN91

MS LEWIS: But with the purpose of the adjournment being for the parties to resume discussions.

PN92

THE COMMISSIONER: If you don't, it doesn't go anywhere. There's an imperative on you both. If the office is wedded to an LJ agreement and you say you're not going to sign one with certain things still in it, you can remain deadlocked for the next 12 years.

PN93

MS LEWIS: Although we are in a bargaining period, hence us being here under l70NA. Can I suggest that rather than adjourning in order for the parties to simply go back to the bargaining tables or leave it up to ourselves, that there really needs to be something put out to staff, and if we are going to return to the negotiating table then I would suggest that it would be appropriate that a joint statement be issued by the parties that no ballot is planned at this stage, the parties are returning to the negotiating table to try and reach agreement and leave it at that.

PN94

THE COMMISSIONER: You won't know the answer to that, Mr Duggan, will you?

PN95

MR DUGGAN: Commissioner, I haven't sought specific instructions in relation to that point but it would seem, with respect, of clear benefit to the union to put out such a communiqué and I'm anticipating my instructions might be not to support such a communiqué.

PN96

THE COMMISSIONER: What would you say if I directed both parties not to say anything to their staff until they reported back to me in a fortnight.

PN97

MR DUGGAN: I suppose Commissioner, the only concern that I would express in relation to such a proposition, is that it's not a short period of time and at the end of the day that would be an order in relation to our employees. I can envisage a whole range of situations where it would be necessary for one reason or another to communicate to our employees, whether about this particular matter - - -

PN98

THE COMMISSIONER: Sorry, I meant specifically about this issue. There'd be no emails of the context of the ones sent out that Ms Lewis referred to.

PN99

MR DUGGAN: I suppose the concern that we might have in relation to that is, again there does need to be some communication with employees as to what is going on. My comment about it being a joint statement, is not something we'd necessarily support, because that could be seen as something that the union are putting out for their own benefit rather than the parties' joint benefit.

PN100

THE COMMISSIONER: No, but you can put out a statement couldn't you, that following hearings in the Commission, both parties have agreed to resume negotiations and there'll be a report back when there are developments.

PN101

MR DUGGAN: I suppose Commissioner, what I was getting at was that TIO wouldn't want to have any fetter on its communication to its employees and wishes to do it on its own.

PN102

THE COMMISSIONER: My point is simply this, Mr Duggan. Whilst your client remains committed to an LJ agreement, then it must act in a bone fide way towards that LJ agreement and not seek to undermine the parties to those negotiations. If it chooses to abandon that LJ agreement and go down an LK agreement, I don't care what it says to its staff as long as it's honest and true. But if it persists with an LJ agreement it must behave in a bone fide way towards the other bargaining partner. It's as simple as that.

PN103

MR DUGGAN: I don't disagree with anything you've said, Commissioner, but that I suppose, prevents the employer TIO from communicating directly to its employees.

PN104

THE COMMISSIONER: No, of course not, with that caveat, of course not.

PN105

MR DUGGAN: I didn't mean when I said it didn't want to be fettered, that it could say anything about the Commission process.

PN106

THE COMMISSIONER: No, but I think that the email that Ms Lewis read out may not fall in the category of behaving in a bona fide manner with the other bargaining parties.

PN107

MR DUGGAN: I think Commissioner, I haven't addressed you specifically on that email in any detail, but I can indicate that that was in response to ..... communication. I didn't want to get into detail about the different communications that had gone backwards and forwards but from our perspective we consider that we're entitled to communicate with our employees.

PN108

MS COBURN: Can I just make a comment there? If we were responding to an email from the FSU that had a vote no campaign on it, so we felt that we had to at least advise the staff where the situation was at.

PN109

THE COMMISSIONER: Yes, I understand that, but you can also appreciate that unless you seek to resolve your matters through negotiation then that's precisely the environment that's going to be created in the work place. There'll be a campaign both by the employer and a campaign by the union.

PN110

MS LEWIS: Commissioner, that's why I suggested that notwithstanding Mr Duggan's comment that a joint communiqué would be to the advantage of the union. In fact I think it would be to the advantage of TIO to try and undo some of the oil on burning waters problem that is there at the moment and it might help to calm the waters. If both parties are saying the same thing then things can calm down and we can get back to trying to resolve these issues and reach an agreement if possible. I would be concerned about an order banning communication about this matter, because of course our members have entitlements available to them, or options available to them under the Act as part of our notice of bargaining period, and I would be concerned that we wouldn't be able to communicate with them if the need arose to advise them what their options are the Act.

PN111

But as I said I think that a joint statement simply to the extent that as a result of the proceedings, the parties have agreed to return to the negotiating table in order to see if we can reach an agreement between TIO and the FSU. There will be no ballot for the moment and that staff will be advised of the outcome of those negotiations.

PN112

THE COMMISSIONER: I'm happy for that. I don't necessarily share your view about one side or the other not communicating. The fact of the matter is that the principal parties to the negotiations are the union and the employer and the union to begin with, should decide its view. It can seek the information from its members but there can't be a campaign going on whilst it's negotiating. Similarly, I would have thought from the employer's point of view, I would have thought that some sort of joint communiqué that was agreed made some sense but I don't recommend that nor do I seek to inhibit you from putting what ever communication you wish unless somebody asks me directly to make some procedural orders.

PN113

MR DUGGAN: Thank you, Commissioner.

PN114

THE COMMISSIONER: I'll adjourn the matter and re-list it at the request of either party at short notice if necessary. Thank you, the matter is adjourned.

<ADJOURNED INDEFINITELY [3.10PM]