C2005/4746, Transcript of Proceedings [2005] AIRCTrans 2065 (5 October 2005)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 12972-3

SENIOR DEPUTY PRESIDENT HAMBERGER

C2005/4746

PACIFIC NATIONAL (ACT) PTY LTD
AND
AUSTRALIAN RAIL, TRAM AND BUS INDUSTRY UNION
s.127(2) - Appln to stop or prevent industrial action
(C2005/4746)

SYDNEY

4.04PM, MONDAY, 19 SEPTEMBER 2005

Continued from 16/9/2005

Adjourned sine die

PN1

THE SENIOR DEPUTY PRESIDENT: I was very keen to hear how things are going.

PN2

MR A LONGLAND: Yes of course, your Honour. I appear with, pursuant to leave that you granted for Mr Dudley last week, for the applicant in this matter.

PN3

MR P PASFIELD: I appear for the RTBU by leave granted to Mr Reitano on the file.

PN4

THE SENIOR DEPUTY PRESIDENT: Okay.

PN5

MR LONGLAND: Your Honour can I say this at the outset, my client doesn't press for the orders that it sought in its application today. Your Honour, my client contends that the industrial campaign that you heard about last week continues in the state of Victoria. It's focus however, has altered since last week, your Honour and I wanted to say only a couple of very brief things about that. The industrial action you heard about last week concerned action from drivers, that is the locomotive engine and division of the RTBU. That action appears to have halted, your Honour, and certainly my client has not suffered a loss of any train services since we were last before you.

PN6

Your Honour may have been told last week about a report that was received from a driver concerning possible harassment or potential allegations of harassment. The matter involved allegedly an RTBU delegate informing this driver that the RTBU campaign prevented him from driving. That is a matter about which my client continues to investigate. Certainly if nothing comes out of that, we hope not to trouble you with that any further. As that investigation unfolds during the course of this week we will be in a better position to know more about what is happening in the, if you like, the driver side of the business.

PN7

The change of focus I referred to, your Honour, refers to action which is, we say now occurring among maintainers and the evidence that we have become aware of concerns a report received from a contractor again as to a conversation he had that was instigated by an RTBU delegate and the words were that there was an industrial campaign in Victoria among maintainers and that certain bans would be imposed. They took three forms. The first was a refusal to work with the side or to induct labour hire employees. That is employees of contractors who work in Pacific National Business.

PN8

Secondly, a go slow as it were, to maintain less wagons than what is the usual weekly average and thirdly, was a ban on overtime. Now, in the short time since this change of the focus of the campaign has occurred whilst Pacific National has noticed movement in each of those three areas it has not got evidence which we need trouble you with at present. The nature of these bans is that they will take longer to impact on the business itself because as wagons become eligible to be maintained it takes a while as it were to filter through the system. My proposal or my request, your Honour, is this.

PN9

That the matter be simply adjourned to the file. We will complete the investigation of the two specific matters that I have mentioned this morning or this afternoon I should say. We hope that no further services will be lost and there will be no need to trouble you further. We bear in mind the comments that you made last week in relation to the robust nature of the evidence. In the event that we have robust evidence of the type you have referred to, we reserve the right to bring the matter back on before you. We don't anticipate that that will occur this week or will need to occur this week other than for circumstances beyond our control but that is the current position, your Honour.

PN10

THE SENIOR DEPUTY PRESIDENT: Okay. Thank you. Mr Pasfield?

PN11

MR PASFIELD: None of that is accepted, your Honour.

PN12

THE SENIOR DEPUTY PRESIDENT: Sorry?

PN13

MR PASFIELD: None of that is accepted, your Honour.

PN14

THE SENIOR DEPUTY PRESIDENT: Okay.

PN15

MR PASFIELD: It appears to be heresay, innuendo. What has been told to somebody down the road, in a pub, I don't know. There is no evidence to be called. In my submission, your Honour, in the absence of any evidence to call in support of this application, the application should be dismissed and it should be dismissed now. Secondly, the so called allegations that go to maintainers is a different subject matter altogether. It is not the subject of this application. Again, I have no instructions in relation to these allegations but it is not the subject of this application. If Pacific National wishes to bring an application in relation to that allegation well then it can bring a fresh application but it is my submission that this application should be dismissed and it should be dismissed now.

PN16

THE SENIOR DEPUTY PRESIDENT: Right. Can I ask both of you is there any further progress with the negotiation of the CA?

PN17

MR LONGLAND: In circumstances such as this it is customary for large employers in Australia not to participate in negotiations whilst industrial action is occurring and the RTBU have been informed of that. That is the longstanding practice of this company. So it is unfortunate that the negotiations can't progress whilst, as I say and I acknowledge my friend. I don't bring evidence of this, I am informing your Honour of what my instructions are and we are not bringing the evidence because it is not yet in a form to be brought and we hope not to bring it but that answers your Honour's question.

PN18

Whilst there are delegates in Victoria telling contractors about industrial campaigns, telling drivers about industrial campaigns. Whilst we are noticing marked changes in the pattern of things like overtime and things like numbers of wagons maintained, we are not in a position to say the negotiations can re-continue. Can I just say two more things in response to what my friend says about his proposal. Firstly, it is in the nature of campaigns of this nature, which are secretive campaigns, that it will take an employer some period of time to identify the relevant pattern so that the relevant inferences can be bought.

PN19

Now we participated in conciliation last week and we are indebted to your Honour for your Honour's efforts in that process. It is not a put up or shut up situation. We are simply saying we may not need to trouble you. We are not going to waste the Commission's time now. We simply want some period to observe this trend and secondly, it is a question of prejudice. I mean my friend has referred to no prejudice and that is clearly because there can be none. His client can walk out of here today with this application simply adjourned at the file and nothing further will trouble his client. In fact, if as he says there is no industrial action occurring, what is the down side for him?

PN20

My client on the other hand has got this application worked up. Your Honour has been involved in the proceedings that have occurred to date. Your Honour is familiar with the facts. In the event that we do need to bring the matter back on it will make a good deal more sense from my client's perspective to be able to call upon your Honour and to re-activate this application. What we say of course is that there is not different industrial action. This is part of the same course of conduct. Can I say finally, those are my instructions and the reason we are not seeking to progress the matter now, your Honour, is because of your Honour's comments last week about - - -

PN21

THE SENIOR DEPUTY PRESIDENT: The evidence.

PN22

MR LONGLAND: Yes. The soul of it. We have evidence, your Honour, but it is not of a nature, the type that you have referred to.

PN23

THE SENIOR DEPUTY PRESIDENT: Okay. I mean what is the prejudice in you just adjourning this matter? I hear what you are saying about that it is all just ….. and innuendo. I mean I - - -

PN24

MR PASFIELD: Your Honour, my friend says he has got this application worked up but this is the most amazing application I have ever seen before the Commission. Worked up, we haven't had one bit of evidence, you know and here we are back again today and there is still no evidence and now we are talking about some other campaign. I mean, your Honour, there was an application brought to this Commission. If my friend does not want to press the application it is the Commission's duty to dismiss the application and that is my strong submission.

PN25

THE SENIOR DEPUTY PRESIDENT: Okay. Well look, I might just say obviously I don't think it would be appropriate to be ordering the company to enter into negotiations with the union. I might just say that I understand the sort of philosophy that says, you know, while there is industrial action we don't negotiate. As I say I have even used that position myself at times but I actually can see that not progressing the negotiations is just going to lead to continual problems and I suppose all I am saying is I am recommending informally that the company does get back with the union and have some serious negotiations on this CA which is going to have to be sorted out at some point. I assume the union doesn't necessarily have problems with negotiating.

PN26

MR PASFIELD: Your Honour, but I would just remind you what Mr Reitano informed you on Friday that the union is more than happy to enter into a conference before the Commission with your assistance to see whether the enterprise agreement negotiations can be progressed and the union still would like to do that.

PN27

THE SENIOR DEPUTY PRESIDENT: Well if someone puts an - I mean I think you actually, the best thing would be if either party wants just to put an application in, a 170NA and I would certainly consider such an application because you can see where I am coming from. I actually think that these things should be progressed. I am, nevertheless, having said that, I am actually going to adjourn the application, the 127 application but I am going to adjourn it sine die and so that I am not going to suggest a report back but obviously if you have heard what I said about the nature of the evidence I would need before I could seriously consider.

PN28

MR LONGLAND: Indeed your Honour.

PN29

THE SENIOR DEPUTY PRESIDENT: And there were the two issues. There is the issue of not just the quality of the evidence, but also the issue of any order being consistent with the terms of the certified agreement that is still in place. And there were issues raised by Mr Reitano and I thought I must say in prima facie, there were legitimate issues at least if I could put it that way, so just subject to that but I must say I would be urging the parties to enter into negotiations. I would be more than happy or the Commission would be more than happy to help conciliate to progress those negotiations but I suggest that if either party wants to, they should actually put a formal application in to that effect, but I am going to adjourn the 127 application but with not setting a date obviously.

PN30

MR LONGLAND: Of course.

PN31

THE SENIOR DEPUTY PRESIDENT: If you want to have the matter relisted then we can do that.

PN32

MR LONGLAND: I mean just for the record, I state my client is very eager to progress these negotiations and it has informed the union but we will take your Honour's comments on board. Thank you, your Honour.

PN33

THE SENIOR DEPUTY PRESIDENT: Okay. Well we will adjourn.

<ADJOURNED INDEFINITELY [4.15PM]