C2005/3135, Transcript of Proceedings [2005] AIRCTrans 2063 (5 October 2005)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 12933-1

SENIOR DEPUTY PRESIDENT LACY

C2005/3135

APPLICATION BY AUSTRALIAN MUNICIPAL, ADMINISTRATIVE, CLERICAL AND SERVICES UNION
s.133 RAO Sched. - Orders re representation rights of employees
(C2005/3135)

MELBOURNE

10.06AM, WEDNESDAY, 21 SEPTEMBER 2005

Continued from 16/6/2005

Hearing continuing

THE FOLLOWING PROCEEDINGS WERE CONDUCTED VIA VIDEO CONFERENCE AND RECORDED IN MELBOURNE

PN64

MR J NUCIFORA: I appear for the ASU.

PN65

MR S MEEHAN: I appear for the Singtel Optus Group and with me is
MS A KANETKAR.

PN66

THE SENIOR DEPUTY PRESIDENT: This matter is listed for further directions or mention and directions. There had been directions published which were in fact directions by consent or by agreement between the parties and, so far as I can ascertain, all of those directions have been complied with. What is necessary now, Mr Nucifora?

PN67

MR NUCIFORA: Yes, thank you, your Honour. As you have mentioned, your Honour, there have been amended directions and we believe that all of the parties have sought to meet those directions and included a postponement of this listing - the hearing before you today. And I believe, as per the amended directions, that we have reached agreement with Singtel Optus in relation to the use of evidence tendered in D2003/37. Certainly from our union’s point of view - and I believe that Singtel Optus are of the same view, that all of the evidence that we have provided in that matter could be relied on in this matter without reservation.

PN68

Your Honour, just in terms of other submissions in relation to the matter before you, the ASU lodged submissions on 5 August in relation to our contentions as per the directions. On 22 August the CPSU lodged a brief submission in relation to their position in this matter and of course last Friday Minter Ellison on behalf of Singtel Optus lodged an outline of submissions on behalf of Singtel Optus. I was away early this week. I have only just had a chance to see that today but we did receive that and we acknowledge that we received that Monday morning this week but certainly, as we understand it, it was lodged last Friday. We have no concern or no problem with any of the submissions that have been lodged. And as I mentioned earlier, that was consistent with the directions.

PN69

Your Honour, the issue that we need to address today is time set aside for this matter to be heard before you for arbitration. We would propose, subject to what my friends might say, that at least a day be set aside for formal hearings before you. While we would, from the union’s point of view, like this matter to be heard expeditiously, it is a difficult period of time in terms of conferences for our union but I would make a suggestion - I haven’t had a chance to speak my friends about this yet - the week commencing 10 October, any time that week. That’s our preferred week.

PN70

If that causes any problems then there is the week before, commencing 3 October or the week commencing 17 October. But as I say, our preference would be a day set aside on that week commencing 10 October and at this point we don’t have any preferred date; probably between the 10th and the 12th, that’s the Monday to Wednesday of that week, and of course depending on your Honour’s availability.

PN71

Now, we would say that that’s sufficient time in terms of the written material before you. We’re not seeking to put any further evidence. There is a question of course that has come up already in relation to whether there would need to be - whether you would need to - we believe, your Honour, that you would need to make a determination with regard - in relation to whether a ballot or whether some form of inspection, if you like, of the sites, the call centres of Optus Call Centres in South Australia, you may need to - you make a decision in relation to section 135 and where it mentions of course that "the Commission must have regard to the wishes of employees".

PN72

Now, there have been different positions put by the various parties about the merits of that and we say, your Honour, that there may need to be then further time set aside after that day or in the course of those proceedings, your Honour, if you’re in a position where you believe an inquisitorial approach is required and that a decision is made. I’m not saying from this - our union’s primary position is that it’s not needed. If it is needed, your Honour, then we believe that there would be submissions put on how the ballot - or, if you like, how the Commission - or how you might gauge the response of employees that are affected by the demarcation order. But there is no, if you like, consent position between the parties in relation to the ballot and how the ballot should be run, if it is needed.

PN73

But we would say at this point of time that at least a day ought to be set aside for formal proceedings, otherwise - - -

PN74

THE SENIOR DEPUTY PRESIDENT: That’s your submission - - -

PN75

MR NUCIFORA: Thank you, your Honour.

PN76

THE SENIOR DEPUTY PRESIDENT: Yes, thank you, Mr Nucifora. Mr Meehan, what do you say?

PN77

MR MEEHAN: Generally I concur with that. The matter is ready for hearing. Mr Nucifora mentioned the agreement in relation to the evidence; that is the evidence in the earlier proceedings being evidence in these proceedings. That is agreed. Singtel Optus’s position has been though that the full record of the earlier proceedings, including submissions, would be the appropriate evidence and record for these proceedings.

PN78

Having said that, I think it’s a day’s hearing, subject to that question of the ballot, but that’s been a matter in respect of which the parties have dealt with in their submissions and a forensic choice has been made by the union in relation to what evidence it wishes to rely on as to the wishes of employees. It is possible of course that your Honour might make a ruling which would require, as Mr Nucifora put, some steps to be taken to ascertain the wishes of the employees and, if that arises, well, so be it. It might require that proceedings adjourn. At this stage I would see the matter being set down for a day.

PN79

THE SENIOR DEPUTY PRESIDENT: Yes. Well, if the matter was set down you presumably would prefer it be set down in Sydney. But what about if it was set down in Adelaide and then we could deal with all of the issues in one hit?

PN80

MR MEEHAN: I don’t think we would have any objection to that course, your Honour. Our preference is Sydney.

PN81

THE SENIOR DEPUTY PRESIDENT: I appreciate that. Sorry, go on. Were you going to say something else, Mr Meehan?

PN82

MR MEEHAN: Really, it’s just a matter of submissions and if it meant sitting in Melbourne then subject to the instructions we get from our client, I wouldn’t see that as a problem either, if we had to come down to Melbourne.

PN83

THE SENIOR DEPUTY PRESIDENT: Yes. I was just contemplating whether or not an inspection of the site ought to be conducted. What was Optus’s position? What is the position of Optus in relation to ascertaining the views of the employees?

PN84

MR MEEHAN: The union relies on particular evidence which they identify in their submissions that was adduced in the earlier proceedings.

PN85

THE SENIOR DEPUTY PRESIDENT: Yes.

PN86

MR MEEHAN: And they say that that represents the wishes of the employees. Singtel Optus in its outline, you will see, contend that that evidence is not evidence as to the wishes of the relevant class of employee, namely those employees affected by the so-called demarcation dispute in call centres in South Australia; and further that section 135 of the RAO - I withdraw that. Section 35 of the Act would not lead to a ballot that would provide the Commission with evidence as to the wishes of the affected employees because it is confined to a ballot in respect of members of an organisation.

PN87

THE SENIOR DEPUTY PRESIDENT: Could I indicate that I had read your submissions and those of the ASU and also what the CPSU had said in theirs. But my inclination was in fact to conduct a site inspection or site inspections to ascertain those views. Mr Meehan?

PN88

MR MEEHAN: Yes.

PN89

THE SENIOR DEPUTY PRESIDENT: What do you say about that?

PN90

MR MEEHAN: Well, I think that will depend on what your Honour envisages the inspection would entail, that is what the mechanics of ascertaining the views of the employees would be. And indeed we would need to get instructions from our client in relation to that proposition.

PN91

THE SENIOR DEPUTY PRESIDENT: How do you suggest those views should be obtained?

PN92

MR MEEHAN: Well, the position that we have taken is that a forensic choice has been made by the union as to what evidence it wishes to rely in respect of that requirement.

PN93

THE SENIOR DEPUTY PRESIDENT: I understand that.

PN94

MR MEEHAN: And that a secret ballot ordered under section 135 would not avail it of - or not avail the Commission of the appropriate evidence. We haven’t, I must say, obtained instructions as to an alternative method which we would put forward to the Commission to ascertain those wishes.

PN95

THE SENIOR DEPUTY PRESIDENT: In cases in the past where I have had to ascertain the views of the employees in the workplace, it’s been conducted on the basis where there is a notice put up for the employees to be aware of the fact that a list would be made and any member or employee wishing to voice an opinion is welcome to do so, and during the course of the inspection I will speak to employees along the way but not necessarily in any particular selection or selected by any particular criteria other than those that would be - the people that would be eligible for membership if the rules changed.

PN96

MR MEEHAN: But for my part I can’t commit my client without obtaining instructions as to that proposal, your Honour.

PN97

THE SENIOR DEPUTY PRESIDENT: I appreciate that, yes. Well, perhaps you could ascertain or obtain instructions about that matter and communicate with my associate and Mr Nucifora on your client’s view about that before I make a decision about how it should be done.

PN98

MR MEEHAN: If it pleases.

PN99

THE SENIOR DEPUTY PRESIDENT: I mean, it would be up to Optus of course to make access available to me and to presumably Mr Nucifora and yourself or whoever is representing Optus. And it would have to be conducted of course on the basis of there would be no disruption to the work or no significant disruption to the work. There have been inspections of call centres conducted in the recent past in relation to dispute finding and matters of that nature but I don’t think there was much disruption at that particular point in time. So, Mr Meehan, if you wouldn’t mind obtaining instructions about that and communicating your client’s position to my associate I would appreciate that, and Mr Nucifora.

PN100

MR MEEHAN: If it pleases.

PN101

THE SENIOR DEPUTY PRESIDENT: Yes. And subject to that I will fix a date with directions to accommodate whatever decision I might make in relation to the obtaining of the views of the employees. So my directions will accommodate whatever approach I’m taking on that basis. Did you want to say anything else, Mr Meehan?

PN102

MR MEEHAN: The only other matter I think was as to possible dates.

PN103

THE SENIOR DEPUTY PRESIDENT: Yes, yes.

PN104

MR MEEHAN: But in light of what your Honour has said perhaps that is not as pressing as it otherwise would be.

PN105

THE SENIOR DEPUTY PRESIDENT: Well, there is another matter I want to raise. The CPSU of course in its submission has submitted that there ought not be a decision in this matter if there is not going to - or unless it is dealt with in conjunction with, if you like, the previous matter. What’s the view of Optus on that?

PN106

MR MEEHAN: We disagree with that submission.

PN107

THE SENIOR DEPUTY PRESIDENT: Yes. Well, what do you say should be done?

PN108

MR MEEHAN: Well, your Honour is at liberty to hand down a decision in the earlier proceedings which were completed, all the evidence was closed, submissions were made. If your Honour is minded to determine that matter there is no legal or other reason why that could not occur.

PN109

THE SENIOR DEPUTY PRESIDENT: So you would oppose the matters being joined and dealt with together?

PN110

MR MEEHAN: Yes. There’s no need, as we see it, for that to occur, your Honour. And indeed it was never - the earlier proceedings were never pursued on that footing as things transpired.

PN111

THE SENIOR DEPUTY PRESIDENT: No, I understand that. Yes, all right. Well, do you wish to say anything else?

PN112

MR MEEHAN: I am still led by Mr Kite. I have some dates as to his availability and I have cross-checked them with mine so if your Honour is minded to explore those I’m happy to do so.

PN113

THE SENIOR DEPUTY PRESIDENT: Yes, please.

PN114

MR MEEHAN: I think Mr Nucifora mentioned some dates in October.

PN115

THE SENIOR DEPUTY PRESIDENT: He did. He said the week beginning 10 October would be the preferable week for them.

PN116

MR MEEHAN: Okay. The only date that - yes, there are no dates where both myself and Mr Kite are available. He had the 12th; I have got a hearing on the 12th. The week following, that is quite good in terms of both our availability, if that’s of any assistance.

PN117

THE SENIOR DEPUTY PRESIDENT: Well, I could do it in the following week.

PN118

MR MEEHAN: Your Honour, we both have the 17th, 18th and 21st as clear days in our diaries.

PN119

THE SENIOR DEPUTY PRESIDENT: Well, if it was in that week it would certainly have to be in Melbourne. It could only be on the 19th or the 20th, so perhaps I’ll ask Mr Nucifora. You did indicate, Mr Nucifora, that the week beginning the 10th - the 3rd or the 17th would be alternatives that were available to you, is that right?

PN120

MR NUCIFORA: Yes, your Honour. If the 19th and the 20th - if it’s in Melbourne the 19th and the 20th, we’re a lot more flexible on those two days. I would just ask that - well, the only other question I was going to ask in terms of where was the inspection, if there was going to be an inspection, whether it be around that time or some other time at Adelaide. But otherwise those two days, in terms of hearings in Melbourne, would be fine by us.

PN121

THE SENIOR DEPUTY PRESIDENT: If I decide that there are going to be inspections then perhaps the inspections should take place first and they would probably occur in the week before that, in the week of the 10th.

PN122

MR NUCIFORA: Yes. And we’re fine all that week, your Honour.

PN123

THE SENIOR DEPUTY PRESIDENT: Yes. Mr Meehan, the 19th, is that suitable from your point of view?

PN124

MR MEEHAN: Mr Kite unfortunately is not available on that day, your Honour.

PN125

THE SENIOR DEPUTY PRESIDENT: So did you say the 20th?

PN126

MR MEEHAN: 17th, 18th and the 21st were available. The 19th and 20th are not unfortunately.

PN127

THE SENIOR DEPUTY PRESIDENT: Yes. Well, I could do it on the 18th but we couldn’t start till 10 am.

PN128

MR NUCIFORA: The 18th is fine by us, your Honour.

PN129

THE SENIOR DEPUTY PRESIDENT: Very well. On Tuesday, 18 October. Mr Meehan?

PN130

MR MEEHAN: Yes, your Honour.

PN131

THE SENIOR DEPUTY PRESIDENT: At 10 am and I will indicate to the parties some time during the course of today or tomorrow the proposals for inspections in the event that you can let us know today or tomorrow what the attitude of your client is, Mr Meehan.

PN132

MR NUCIFORA: Yes, your Honour.

PN133

THE SENIOR DEPUTY PRESIDENT: Can you do that today or tomorrow?

PN134

MR MEEHAN: We’ll do our best. We’ll certainly make contact as soon as we return from these proceedings.

PN135

THE SENIOR DEPUTY PRESIDENT: Yes, all right. The question of whether or not these matters ought to be dealt with separately or joined and considered together is a matter that I should be able to determine on the papers. Do you have a different view to that, Mr Meehan?

PN136

MR MEEHAN: I agree with that.

PN137

THE SENIOR DEPUTY PRESIDENT: Yes.

PN138

MR MEEHAN: We would want an opportunity to put something to your Honour and that could be done in a short written submission but I would not see any need to attend before your Honour.

PN139

THE SENIOR DEPUTY PRESIDENT: No. Well, it is pretty much a technical issue, isn’t it?

PN140

MR MEEHAN: I think it is.

PN141

THE SENIOR DEPUTY PRESIDENT: Yes. All right. Well, Mr Nucifora, what do you say?

PN142

MR NUCIFORA: Your Honour, the ASU hasn’t put a clear position on this today but we do support the CPSUs position that they be heard in conjunction with each other. We believe that they are inextricably linked, notwithstanding that we have had of course alternate submissions. About the second matter we believe that they could be joined because they are linked.

PN143

The other matter that we - in terms of our position on inspections, we wouldn’t be seeking to put any further submissions than we already have.

PN144

THE SENIOR DEPUTY PRESIDENT: No.

PN145

MR NUCIFORA: And we would seek to work within the decision in fact that you make on that, your Honour. If your Honour pleases.

PN146

THE SENIOR DEPUTY PRESIDENT: Yes, very well. On or before 28 September parties file in the Commission any further submissions they wish to make in respect of joining of the two proceedings, that is this proceeding and the prior proceeding relating to the rule alteration. The parties should copies of their submissions to each other as well.

PN147

The matter will be fixed for hearing on 18 October to be heard in Melbourne. As soon as I have heard from Mr Meehan about the position of Singtel Optus regarding inspections in Adelaide, I will inform the parties of the proposal that I will make in relation to that and if the parties then wish to say anything further about it they can send in some written submissions about that.

PN148

MR NUCIFORA: Sorry, your Honour, that’s in relation to - - -

PN149

THE SENIOR DEPUTY PRESIDENT: Inspection.

PN150

MR NUCIFORA: - - - inspections might be conducted?

PN151

THE SENIOR DEPUTY PRESIDENT: Yes. Or if there are going to be inspections.

PN152

MR NUCIFORA: If there were inspections.

PN153

THE SENIOR DEPUTY PRESIDENT: If Singtel Optus object to the conduct of inspections then it seems to me that I will have to determine the manner in whichever way I consider appropriate, and of course taking into account the cooperativeness or otherwise of the parties to that approach. All right, anything else?

PN154

MR MEEHAN: No, your Honour.

PN155

MR NUCIFORA: No, your Honour.

PN156

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. The matter is adjourned to 18 October.

<ADJOURNED UNTIL TUESDAY 18 OCTOBER 2005 [10.32AM]