C2005/4690, Transcript of Proceedings [2005] AIRCTrans 2051 (5 October 2005)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 12912-1

COMMISSIONER CARGILL

C2005/4690

HAWKER DE HAVILLAND AEROSPACE PTY LTD
AND
AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION THE AUSTRALIAN WORKERS’ UNION COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA
s.127(2) - Appln to stop or prevent industrial action
(C2005/4690)

SYDNEY

10.01AM, WEDNESDAY, 21 SEPTEMBER 2005

Continued from 16/9/2005

PN858

THE COMMISSIONER: I don’t know who wants to bring me up to date. Are you gong to Mr Allen?

PN859

MR ALLEN: If the Commission pleases. As per the last proceedings I think the Commission was going to go and consider the submissions made by the parties. In the meantime the Commission gave a strong recommendation that the unions go back and have a meeting with the employees at Hawker De Havilland with a strong recommendation that the bans in question be lifted.

PN860

I am here today to report, Commissioner, that has been done. There was a meeting that was held yesterday at 12.15 pm as per instructions and a report was given and as a result of that report there was a resolution at that mass meeting. That resolution was that the previous motions dated 6 and 15 September be withdrawn and that the terms of the resolution be accepted in line with the Commission’s determinations, that the issue of its functions and the process around that are to be raised and dealt with in the upcoming EBA.

PN861

THE COMMISSIONER: Do you happen to have a copy of that Mr Allen? I am just thinking it might be easier. Is that your only copy?

PN862

MR ALLEN: You are more than welcome to have that copy Commissioner.

PN863

THE COMMISSIONER: Has the company got a copy are you aware?

PN864

MR HORSLEY: Not in that format Commissioner. I have a hand written note but not in that format.

PN865

THE COMMISSIONER: Maybe we could get some copies.

PN866

MR HORSLEY: That would be useful, yes.

PN867

THE COMMISSIONER: Sorry Mr Allen.

PN868

MR ALLEN: Yes Commissioner, so in light of that agreement we would strongly suggest that that would probably resolve the outstanding matters before the Commission and therefore resolve the application made by the company under section 127 for orders. If the Commission pleases.

PN869

THE COMMISSIONER: Thank you Mr Allen. Mr Nielson or Mr Curry did you wish to make any submissions about that before Mr Williams - - -

PN870

MR NEILSON: I think Mr Allen has clarified the position that has been taken by all three unions Commissioner.

PN871

THE COMMISSIONER: Thank you. Mr Williams I am aware of the fact that you don’t actually have a copy at the moment.

PN872

MR WILLIAMS: I have just been passed it thanks.

PN873

THE COMMISSIONER: Do you need some time to consider that and perhaps get instructions before responding?

PN874

MR WILLIAMS: I’m not sure about that. I may have to take a brief instruction but could I just clarify. There are motions dated 6 and 15 September mentioned. The evidence suggests there was a motion which I really think was supportive of the motion on the 6th passed at a meeting on 8 September. It might be of no significance but could I just clarify that as far as the respondents are concerned. That means that all motions which impose a restriction made in the course of that dispute are withdrawn. It seems to be the intention of it but I just might clarify that.

PN875

MR ALLEN: Yes Commissioner, the clear understanding from the meeting was that the two areas of concern, those resolutions have been overturned and therefore there isn’t that restriction on there. I will say there was an acceptance that they would be working in line with the agreement or the terms of resolution that was thrashed out under the chairmanship of yourself at a previous matter, that that would be the way in which they would deal with those particular items. As I said earlier, to clarify the position the areas of concern have been dealt with at that mass meeting and if the wording needs to be tidied up, and bearing in mind that is the intent of the resolution at the mass meeting.

PN876

THE COMMISSIONER: Yes, I think there was some lack of clarification about dates of meetings. I think there was another meeting on the 8th.

PN877

MR WILLIAMS: I think that the second part probably covers it to our satisfaction anyway in terms of the resolution being accepted.

PN878

THE COMMISSIONER: All right, so in other words, just to clarify Mr Allen, the understanding that I have from what you have said is that the mass meeting agreed to withdraw those motions and the terms of resolution in the 170LW matter, and I cannot quite remember but I think it became exhibit 1, I don’t have the file with me, but whatever those terms of resolution that were reached on 25 August if my memory serves me correct are, in fact, going to be accepted by the employees.

PN879

MR ALLEN: That is correct.

PN880

THE COMMISSIONER: And the issue and the process around it can be dealt with in the upcoming EBA which I think is, well, I don’t know when you start your negotiations but I think the agreement expires at the end of March doesn’t it? Presumably some time in the new year. Mr Horsley is smiling. He is obviously looking forward to this process, that that will be an item that will be discussed. If you don’t have it on your log the company will have it on theirs. Someone will have it.

PN881

MR WILLIAMS: I think that was quite clear and I think that was the basis of the report, Commissioner. As far as the EB negotiations I am sure we will put them back until you return from leave. If the Commission pleases.

PN882

THE COMMISSIONER: I think I have actually got some more leave owing then Mr Williams. I think I see a need to have to take it.

PN883

MR WILLIAMS: Commissioner, we certainly take it in the right spirit and I think that the terms of that motion are an acceptable outcome. Just two things I suppose and one is that it would be reassuring if the union respondents as represented here today could give an assurance of that. I am not asking for an undertaking or anything of that nature but an assurance that they will do what they can to ensure that in what has been a difficult situation both parties get the benefit of the terms of resolution which I now think are ambiguously accepted by all parties, by all sides.

PN884

I am in a position to give an assurance on behalf of the company that we will certainly do what we can to make sure that all parties get the benefit of those terms of agreement. As I said I am not particularly asking formally for anything, an undertaking, but it would be reassuring to get an assurance to that effect. If that could be given then that really only leaves the second part of our application which perhaps should be programmed.

PN885

You will remember that there are two parts to the application, one related specifically to the dispute and that seems to have been resolved thank you, and thank you to the parties, but I am instructed to press with the second part of it and I think it was the understanding of all parties that that would be programmed rather than dealt with immediately. Perhaps that is a matter we can raise with you as well although I understand that if it is programmed it may have to be allocated to another Commissioner.

PN886

THE COMMISSIONER: You might get someone more exalted than a Commissioner Mr Williams I suspect because I am the only Commissioner on the panel in Sydney. Mr Nielson, Mr Allen, Mr Curry, do you need to have a brief chat to respond to those two issues?

PN887

MR ALLEN: Commissioner, could we have a five minute recess just to confer.

PN888

THE COMMISSIONER: Yes, it might be best to perhaps do that so if we just adjourn for five minutes. Thank you.

<SHORT ADJOURNMENT [10.09AM]
<RESUMED [10.12AM]

PN889

THE COMMISSIONER: Mr Neilson.

PN890

MR NEILSON: Commissioner, there are two issues raised by Mr Williams on behalf of his client, the first being an assurance sought from the unions that they would facilitate the enactment of the agreement that is presently before the Commission. As far as the unions are concerned we see that facilitation as being dealt with by the meeting motion that has been provided to the Commission. We don’t necessarily think that there is anything further that we need to provide to the company suffice to say that it is the intention of that motion that the agreement be complied with and that is the intention of the unions.

PN891

The second issue that my friend sought to deal with was the imposition of what is commonly referred to as a blanket section 127. In our respectful submission there is no jurisdiction for the Commission to entertain that particular application on the basis that it is not threatened, impending or probable that there is any industrial action taking place. The evidence that has been provided on behalf of the company does not evince such an intention or a reasonable intention for the Commission to make an order in the form that is sought by the company.

PN892

The concern for the unions is of course that were this matter to be referred to another Commission Member that Commission Member would obviously not go into those proceedings with the knowledge of the background to those proceedings and of course the parties’ industrial dealings, and that is a cause of concern for the unions. We would say that given the issue of mixed functions has been identified and resolved, and certainly on the basis of the evidence that has been provided, that was the only issue that industrial action could be said to have been threatened, impending or probable.

PN893

There is in fact no case for the unions to answer in relation to the application that has been filed and we would certainly submit that the Commission should either dismiss the application or adjourn it to such a time as the Commission, as presently constituted, can hear and deal with the matter. If the Commission pleases.

PN894

MR ALLEN: If the Commission pleases, we support the comments by Mr Nielson and just reaffirm the position that the Commission in dealing with this application over the mixed functions clause, that subsequently the arguments and a lot of the evidence that would go to dealing with the 127 application has appeared and we believe that there is no reason why the Commission couldn’t deal with that today. Our position is that the matter has been dealt with, it has been resolved and I think any further delay could only inflame the matter as far as the parties are concerned. If the Commission pleases.

PN895

THE COMMISSIONER: Mr Williams, did you want to respond to that?

PN896

MR WILLIAMS: I suppose I should. Commissioner, I must say I had thought it was understood that the application would be dealt with in two parts. Having heard the objection to that course I would probably need to make my client’s position a bit clearer. The affidavit of Mr Allen reflects what, in my client’s submission, will be an unacceptable and repeated pattern of industrial action at this particular site.

PN897

The evidence will also be that on at least two occasions a representative of the company has made it explicitly clear to the union respondents, on the record, that it would no longer, to use a phrase, no longer put up with that pattern of repeated industrial action. Despite that position being made clear on the record that pattern has continued and Mr Allen’s affidavit is evidence of that. We have an outcome in relation to the instant dispute which is, from this point on, most likely acceptable as long as all parties comply with the terms of resolution, but to put it neutrally the process leading up to that outcome has been unsatisfactory as far as the company is concerned and involved a repeat of what it would regard as an unacceptable pattern of industrial behaviour.

PN898

It came as no comfort to the company for its witnesses, Mr Allen in particular, to be cross-examined by one of the advocates really on the basis of an assumption that mass meetings and authorised lost time were, or should be accepted as part of the industrial fabric at Bankstown, or in fact as an inevitability at Bankstown when the dispute resolution procedure of course makes no such provision. Lost time when it occurs is enormously disruptive and expensive for my client.

PN899

Perhaps we stand here in the afterglow of having reached a resolution of a particular part of that dispute but as I said, with a process that was quite unsatisfactory to my client. The underlying problem it appears still remains and after many appearances before the Commission and the company’s position having been put unambiguously on a couple of occasions my instructions now are that the company does want to press with an application for, as Mr Nielson put it, blanket 127 orders.

PN900

We understand that it is an unusual and perhaps even an extraordinary order to make but they have been made in circumstances where a pattern of industrial action has reasonably led to an inference that unless an order is made there will be a continuing pattern in the future and therefore the jurisdictional basis is satisfied because the Commission can infer that further industrial action is probable. If there are jurisdictional issues then of course they can be put but we don’t seek to press the application today and the proper place for those jurisdictional arguments to be put is perhaps when the matter is programmed.

PN901

We understand that it may have to be allocated to another Member but of course that Member will simply have to deal with the application as he or she finds it, on the basis of evidence, and that would be the same position that you would be in if it came to you. Your involvement in the disputes at Bankstown over the period that you have been on the panel would have been useful but it doesn’t mean another Member couldn’t pick up the evidence, including no doubt the circumstances before you which are transcripted, and deal with the application. We are simply asking for the application to be programmed and if there are objections to it they can be made at the appropriate time.

PN902

THE COMMISSIONER: Can I just ask Mr Williams as I perhaps and I don’t know if I properly understood, but when the matter was on before me last Friday Mr Allen and Mr Johnson were giving evidence, as I understood the situation - all right, their affidavits are now in, but a part of at least of Mr Allen’s affidavit, and I can’t remember now what clause it was but the one that had all the various paragraphs in it, really a lot of that went to a lot of what you would say was the second, the blanket order, if you want to put it that way.

PN903

MR WILLIAMS: That’s correct, yes.

PN904

THE COMMISSIONER: And therefore what were you proposing, that Mr Allen give further evidence? It probably depends if the unions wish to cross-examine him further and certainly that right was expressly reserved to the unions to be able to cross-examine him in relation to that. I don’t recall there was any particular issue in relation to Mr Johnson but I don’t know that that is an argument. In other words, and I suppose what I am really getting at is that there has been evidence before me and it would be your intention to at least have Mr Allen available for cross-examination in relation to that second part?

PN905

MR WILLIAMS: Yes.

PN906

THE COMMISSIONER: In other words it wouldn’t be someone else just dealing with the transcript that I have before me?

PN907

MR WILLIAMS: No, Commissioner, that is the effect of my submission. We accept that the evidence would have to be before whoever heard the matter. It would have to be at large.

PN908

THE DEPUTY PRESIDENT: Yes, and on the other hand the unions obviously would also have the rights they have to bring whoever they want to give evidence on their behalf.

PN909

MR WILLIAMS: Yes, that’s right.

PN910

THE COMMISSIONER: In other words they wouldn’t be restricted to the evidence from Mr Stewart in relation to just that one issue the other day?

PN911

MR WILLIAMS: Yes, that’s right Commissioner, they would be entitled to call any evidence they want.

PN912

THE COMMISSIONER: All right, I think I understand. Yes Mr Allen.

PN913

MR ALLEN: If the Commission pleases. If I understand the company correctly in their previous submissions they solely relied on the evidence of Mr Allen and Mr Johnson and they believe that was their case. Now, in dealing with the matter over the mixed functions clause there was fairly extensive cross-examination which really did go into the areas of all aspects of that particular statement in relation to areas such as the timing of meetings and whether that was customary practice or whether it wasn’t.

PN914

I believe that the Commission has had, if you like, all the evidence presented to it. I would imagine that if this matter was to be re-listed again we would simply be rehashing those sorts of cross-examinations before possibly another Member when in fact it would only be really re-enactment of what has already occurred. I believe that all the evidence relating to that application as it has been determined as being the overall or the blanket cover of 127, all that has been presented to the Commission, before yourself, and I don’t believe there is a reason why, unless the company has new evidence which they wish to bring into these proceedings, that the Commission could not deal with that application proper. If the Commission pleases.

PN915

THE COMMISSIONER: Mr Allen I suppose the difficulty with your submission is that it was certainly made quite clear last Friday, and in fact I think it was at the request of Mr Nielson that the company clarify the situation, and in fact they were only intending to prosecute, if you would like, the mixed functions part of the application and that their wider application was on hold, but certainly wasn’t withdrawn and I don’t think they have pulled back from that.

PN916

I don’t think it can be said that you have been led into a situation where you thought that they weren’t going to prosecute the rest of their application and certainly I think, and I am not making any judgment on the actual application, but obviously they have brought the application and it was clear it was in two parts and they are now saying they wish to prosecute the second part of it if you like, and obviously they have got the right to do that whether or not there is jurisdiction to issue any orders. That is always an issue with section 127s anyway, regardless of the particular circumstances. I think they have got the right to do that.

PN917

Whether you choose to cross-examine Mr Allen further in relation to the various issues set out in his affidavit, or Mr Johnson for that matter, that is really up to you. Certainly Mr Neilson was expressly given a right if you would like, to cross-examine at a later point should the company wish to prosecute the larger part and I think that right will obviously be available to anyone at this side of the bar table. I think really the realistic thing is the matter would probably – I don’t think it is something that can be determined today and given that I go on leave on Friday I think it needs to go to somebody else.

PN918

Could I indicate when the matter first came in, in fact when it was lodged last week, it was given to me by Marsh SDP on the basis that I should deal with it obviously, but that if the second part, in other words the wider part of the order, if the company didn’t wish to press for that at the time and that it wasn’t able to be brought to conclusion whilst I am here that she would take the matter back and deal with it herself in time, obviously suiting parties’ availability.

PN919

I take it Mr Williams – 127s tend to be, and there is obviously a legislative imperative that they be dealt with as soon as practicable and I understand your position, but I take it that there is no immediate urgency for it in that you are not suggesting that there is trike action or such a thing happening at the moment that would require it to be dealt with today?

PN920

MR WILLIAMS: That’s right Commissioner and we also accept that the unions have got to be given every opportunity to respond to the material. Can I also foreshadow that the general manager of operations at Bankstown, Mr David Cardiff, I am instructed that he will give evidence as well. He is overseas at the moment and I think he might be back on Monday, so we ourselves would like an opportunity to place Mr Cardiff’s evidence before the Commission and provide it to the unions which we think could be done certainly within 10 days or so.

PN921

We accept that the unions ought to have a proper opportunity to respond. It is a significant order and as you point out we are not in a position to ask for urgency on the basis of presently threatened industrial action, no.

PN922

THE COMMISSIONER: Mr Nielson did you or Mr Curry want to put anything further? Obviously you would prefer that the matter didn’t continue but given that I think the company has got the right to run their case I really think the best thing is to speak to her Honour and then it is up to her as to when she calls it on. I will mention to her obviously what has been put today and whether or not she lists it for programming, which is unusual with a 127, but may in the particular circumstances be something that would be worthwhile, I don’t know. Mr Nielson did you wish to put anything further?

PN923

MR NIELSON: I think the Commission has made its views clear in relation to it.

PN924

THE COMMISSIONER: Mr Allen.

PN925

MR ALLEN: If the Commission pleases, I do hear the views of the Commission and I have got to say in being the person who did address the mass meeting I think this in itself could precipitate in its very nature some sort of unrest with the workforce. We will again need to go back and have a further meeting with the employees which is again, I would suggest, problematic and I believe that we would need to talk about that in itself because the workforce are quite clearly of the understanding that these matters would be dealt with today, one way or another.

PN926

I think they realise and they heard the Commission and I guess there is some expectation there from the workforce that this would dealt with. Now to have this still hanging in the air in itself I don’t believe is really correct because the whole idea of section 127 the way I understand it is if there is industrial action threatened, probable or likely, and this quite clearly has been dealt with in its very self by the resolutions that have been put forward to the Commission. I think this matter should be put to bed.

PN927

If the company wishes at some later stage to renew a further application then do so, but I believe that this matter should be then because otherwise we are going to be in a position where we are probably going to have to go back into conference again or work out whether we can have a further communiqué with the workforce whereas we are in a position here today to say that is the end of it, let’s get on with the job, this is not going to allow this to go away and I think it is going to be counter-productive to the whole process. If the Commission pleases.

PN928

THE COMMISSIONER: Mr Curry.

PN929

MR CURRY: Thank you, Commissioner. I was present at the mass meeting with Mr Allen yesterday and I support everything he has just said. I don’t know whether it is appropriate but I would just like to say that the company is the one that has tried to muddy the waters here. They are trying to upset their employees because the whole company itself - from my understanding it is because they had the mass meeting following the outcome without approval which I think the unions established was common practice to have that endorsed by the membership. It was the company that imposed the time limit on them that morning so they really had to act fairly quickly to reply to the company’s request to have that mass meeting. There was never any opposition from the company and I think that is what ignited the company’s position on the 127 order. As we say, it was common practice and it just seems to be the company is trying to make their workforce uneasy. To put in a blanket request for a 127 is just an unreasonable way and it is just going to make their workforce more uneasy which we are trying to settle down.

PN930

MR WILLIAMS: Commissioner, I just need to respond to that very briefly and I don’t want to make the submissions that might be made when the application is finally heard, but those submissions really, with respect, start from the wrong end of this. There is a certified agreement in place and a disputes resolution procedure agreed between the parties which precludes industrial action or disputes being resolved. All the company has ever asked is that that procedure be followed. The more we hear that there is an assumption that mass meetings or loss of time is part of the fabric out there the more concerned we get.

PN931

All we ask is that the dispute resolution procedure will be followed and if the unions, from a mass meeting or whatever, could bring an undertaking to the Commission or to the company that that would in all cases be the case, that there would not be a continuance of mass meetings, industrial action, bans, well, perhaps the situation would be different but after a long period of time the company feels it has been driven to a course of action that it is now asking the Commission to adopt.

PN932

THE COMMISSIONER: Yes Mr Allen.

PN933

MR ALLEN: If the Commission pleases. I must protest on the basis that they’re not even following the dispute settling procedure which they’re asking the unions to follow. We have had no discussions with the company in relation to issues about mass meetings overrunning, employees not adhering to mass meeting decisions. The first we hear about it is on the back of a 127 application which was related to a matter which has now been dealt with in relation to mixed functions. They haven’t had any discussions formally with the delegates on site, there have been no formal discussions with the organisers, there has been no formal discussions in the Commission to try and assist this as a dispute.

PN934

I think it is opportunistic of the company to then come and try and pursue this particular matter. I would accept that in the normal course of an application they are trying to win their point, so they have looked to try and cover the field. This matter has now been dealt with and to pursue this matter further with a blanket 127 over a matter that hasn’t even been dealt with properly through the disputes procedure I think is highly irregular and at the end of the day, even if the application was moved forward, another Member has it, it is simply not going to be successful because it hasn’t really met the test and doesn’t continue to meet the test because there is no industrial action.

PN935

They have got no evidence here saying that there is industrial action pending. In fact their application itself even says in the covering letter, “Although there is not currently any industrial action in the form of strike or industrial action taking in place...” yet they want to continue this matter forward. I strongly urge the Commission to believe this has been dealt with, if they wish to make a new application then they are entitled to do so. If the Commission pleases.

PN936

THE COMMISSIONER: Mr Allen, as I said the difficulty with that is that Mr Williams made it perfectly clear last Friday that the second part of the application wasn’t being prosecuted then but he didn’t in any way, shape or form, certainly as I understood it, indicate that it was going to be withdrawn. Whether or not it is successful is another thing and what impact it might have on the relationship between the parties is obviously an issue that I would hope the company has thought seriously about before deciding to make the application and before deciding to prosecute it. I can’t run peoples lives for them.

PN937

They have made an application, they want to prosecute it and I think the time for running the arguments about whether there is any basis for any order is when the matter is called on. I can’t really deal with it any further today. As I indicated I will speak to my panel head and let her know that the company wishes to proceed with the second part of the application and that they also wish to file some additional evidence in relation to that and that they don’t see any great urgency for bringing the matter on in the immediate future, and really it is up to her as to when she lists it. I think on that basis the matter is adjourned. Thank you.

<ADJOURNED INDEFINITELY [10.35AM]