C2004/6285, Transcript of Proceedings [2005] AIRCTrans 2371 (18 November 2005)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 13363-1

COMMISSIONER WHELAN

C2004/6285

APPLICATION BY CSL LIMITED
s.113 - Application to vary an Award
(C2004/6285)

MELBOURNE

10.18AM, FRIDAY, 04 NOVEMBER 2005

Continued from 13/4/2005

PN1

THE COMMISSIONER: Good morning. This matter was listed this morning for a report back in relation to the discussions that had been occurring between the parties concerning the application of the decision that was made in this matter by the Commission back in July. We had one conference where I was given some information as to what were the issues between the parties in relation to that and then there was to be some further discussion. I listed the matter for a report back and was told that discussions were continuing and asked to adjourn that so I did. So here we are. So where are we up to then?

PN2

MR MUFFATTI: Commissioner, we have had numerous discussions over the period involved and when we asked for the last adjournment we were looking to take some matters to our members for their consideration but in the interim further discussions have ensued and as late as yesterday there have been movement so we haven’t had a chance to actually consult our membership as yet.

PN3

THE COMMISSIONER: Okay.

PN4

MR MUFFATTI: So I think in the interests of fairness to everybody it is probably best if we seek to adjourn it. We still have some difficulties with the proposal that has been put to us by the company. As you will recall there was an issue that the company believed that some of the members were excluded from the ruling that the award would apply to them.

PN5

THE COMMISSIONER: Because of the existence of various agreements, yes.

PN6

MR MUFFATTI: Yes and we have gone through those discussions and the company has made some offers to include those members that they believed weren't included but on the proviso that there were some, I suppose, give on our side of the table in relation to the entitlements in regard to the people that the company believed were entitled to it too. And we have been trying to work out an arrangement that would perhaps suit all of our members. Because the way it has been structured, one group of members is to give up something to help fund the way forward for another group of members and each group of members of course intent on, you know, having their full entitlements and the company has made a proposal to us to have a complete document that looks at all shift work arrangements and to pick up award conditions going forward and made some offers to include things like returning to the provisions, the double time, overtime, double time payment for all shift workers that had fallen out of the 98 EBA, sorry the 98 Award.

PN7

They had also agreed to include payment for shift loading when people were on sick leave which doesn't occur at the moment. In return for that they were seeking a reduction on the amount of back pay. They wanted to cap that for the members that they believed were entitled and for the other members who they believed weren't entitled, they would be entitled to the shift loadings going forward as from the next EBA. There was also an inclusion of a clause that slightly changed the provisions of our current EBA in relation to the introduction of shifts whereas, and that is one of the major sticking points going forward.

PN8

So the company has been talking to us and as I said as late as yesterday they had provided, you know, an updated document or a draft memorandum of understanding for us to look at. For some reason we got our times confused. We thought we would be here at 3 o'clock this afternoon that is why the other unions aren't present and I can't speak on their behalf or pre-empt what they would say but I think in the interests of fairness if we adjourn it for two weeks to give all of the parties an opportunity to get feedback from the various members and to allow us to have further discussion to see if we can't iron out the additional issues that are still outstanding.

PN9

THE COMMISSIONER: Okay.

PN10

MR MUFFATTI: I think the company agrees that if we can't iron them out in the next two weeks we would be coming back to look for a way forward to resolve the issues that were originally raised about who it applies to.

PN11

THE COMMISSIONER: Okay. So basically what that company has put to you is a whole package in effect.

PN12

MR MUFFATTI: Yes.

PN13

THE COMMISSIONER: Okay. Yes?

PN14

MS ANDELMAN: Before we move to Mr McClelland if I may add a few matters, your Honour and that is that what has been proposed to us is a package and CPSU is supportive of that process and that kind of way of resolving the multitude of issues. We would like to see agreement to a range of matters related to shift penalties however with this way forward brings a number of questions in regard to the way the document may be enforced on the status of the document.

PN15

Currently it is titled memorandum of understanding and knowing what we covered, the ground we covered in our last session about the status of various agreements and certified or non certified, we would want to have some clarity about the status of this document and there is a number of options obviously about how we may enforce such a document. Varying the agreement is one but I don't think it is one that the parties really would want to go down because of the time and effort associated with that.

PN16

Another is looking at the agreement as a stand alone uncertified agreement. And as such we would like to see a dispute resolution procedure included in this document because some of the entitlements would not operate until sometime next year, we are concerned about the ramifications of impending future legislation. And what we would like is to have some certainty about the dispute resolution process and we seek to have a clause that would simply say it would mirror the dispute resolution procedure in the CSL Certified Agreement in terms of attempting to resolve the disputes in the workplace, one to one between the individual employer and their supervisor, then escalation and then further escalation to the National HR and official level.

PN17

But if resolution can't be reached at that stage then referral to the Industrial Relations Commission for conciliation and arbitration and we would simply seek to have a form of words to say that the Commission would have all the powers available to it as of the date that we make the memo of understanding whether it be 1 December or some other date prior to the ratification of the amendments to the Workplace Relations Act.

PN18

In fairness to Mr McClelland this is I think the first time we have formally raised this. What we have raised, been raising previously is that we would like to have the CSL agreement which doesn't expire until 30 April 2005 negotiated by the end of this year and that is still our aim and we would like to move that way and I know the company is too but failing that we wouldn't want this to fall down based on that and we would like at the next report back to have this matter addressed and, because this is an issue that will be raised by our members when Mr Muffatti goes back to them through his course next week.

PN19

THE COMMISSIONER: Okay. Mr McClelland?

PN20

MR MCCLELLAND: Commissioner, first of all, that is the first I have heard that we would be intending to negotiate and complete our enterprise agreement for, beyond the current agreement before December this year. I think the timelines available - - -

PN21

THE COMMISSIONER: So you've got a few - - -

PN22

MR MCCLELLAND: ….. get this agreement we will pretty pressed for time.

PN23

THE COMMISSIONER: Yes I think that the history would suggest that the timeframe is a bit narrow, yes.

PN24

MR MCCLELLAND: Yes I think we would be pressed for time, Commissioner. So our intention in this matter is to, as Mr Muffatti has put forward, to put a package together which deals with all shift worker entitlements regardless of the shift pattern that they work taking notice of the Commissioner's comments to us that our agreements were difficult to follow and hard to work through so - - -

PN25

THE COMMISSIONER: They are overlapping. The overlapping agreements is a bit of a problem.

PN26

MR MCCLELLAND: Yes so we have attempted to combine all of these things, all of the issues into this proposal. It is still a proposal at this stage because what we are faced with is, as Mr Muffatti has said, there is something in it for everyone but there is not as much in it for some as they would have expected from your previous decision. And it is not that we are not looking to honour, to follow your previous decision it is a matter of trying to resolve the overall issue and we are keen to do that however if we are unable to get agreement for this package in all of the issues that the CSL require as well, we will have to come back and - - -

PN27

THE COMMISSIONER: Have a ruling as to who the order actually applies to.

PN28

MR MCCLELLAND: Exactly.

PN29

THE COMMISSIONER: Yes.

PN30

MR MCCLELLAND: So that is the difficulty we face.

PN31

THE COMMISSIONER: Yes.

PN32

MR MCCLELLAND: On behalf of the company I believe we have made good progress on our discussions. There are a couple of issues that still need to be resolved that are, one or two of them are significant but we are confident that we will be able to resolve these. If, as I said earlier, if we are not we will be back here to follow the dispute.

PN33

THE COMMISSIONER: All right then. Okay. Thanks, Mr McClelland. Mr Mavromatis, you got here. Is there anything you wanted to add?

PN34

MR MAVROMATIS: Just like to apologise. The matter was on at 10 o'clock. Thought it was at 3 o'clock.

PN35

THE COMMISSIONER: No the last hearing was listed for 3 o'clock. I think that is where you got confused.

PN36

MR MAVROMATIS: For some reason our wires got crossed, yes.

PN37

THE COMMISSIONER: Yes. The one that was cancelled was listed for three.

PN38

MR MAVROMATIS: But that is the question. I think Mr McClelland just hit the nail on the head. The question is, that recommendation that you made or that order that you made previously, the debate has been about who does it apply to. As far as the AMWU is concerned we say it applies to all shift workers and that debate still goes on. Now there has been negotiations trying to settle the matter, yes that is true. We haven't reached agreement. From the AMWUs side we are sort of saying well, if we can't reach agreement we are just going to have to let the Commission decide does it apply to all or doesn't it and reasons for it but I guess if all parties agree to adjourn it for another two weeks I don't have a problem with that I just want to see this come to an end because it has been going on for a long time.

PN39

THE COMMISSIONER: Yes.

PN40

MR MAVROMATIS: Rather than it just be drawn and drawn and drawn but my concern with all this is that I don't want to see it leading to another issue. It is the issue of shift work on rec leave. It has nothing to do with anything else ie. hours of work, other arrangements. We are talking about just the shift work on rec leave and we hope negotiations could be just focussed on that issue rather than try and bring other issues involved where other issues can be discussed at another forum or another place or maybe in the future EBA negotiations. So I will just leave it at that Commissioner and look for your assistance.

PN41

THE COMMISSIONER: Okay. All right. Well it seems to me there are three alternatives at the moment. One is you reach agreement simply on the issue of who the order applies to and you execute that in some sort of memorandum or you reach agreement which rationalises the number of existing agreements which deal with shift work and you put those into a single agreement and that either is a certified agreement or is an uncertified agreement. That is really a matter for the parties. In either event, I mean if it is a certified agreement it must have a dispute settlement procedure.

PN42

If it is not you would be strongly advised to have one anyway and if it is an unregistered agreement then you can nominate whatever dispute settlement procedure you like in it. You can nominate the powers that anyone can exercise in relation to that dispute settlement procedure and you can nominate who exercises them because it is your agreement. So that is really a question for the parties but it would seem to me that it is important that you do have, whatever you end up with you have got a procedure in there for resolving any disputes about how it applies.

PN43

If you can't do either of those two things then it appears to me that it is going to be necessary for the argument to be run in relation to the question of who does the award apply to and who may be excluded from the award provisions because of the operation of other agreements and that will need to be resolved by way of a ruling by the Commission if it can't be resolved any other way. So they seem to me to be the alternatives that you have got at the moment in relation to this. I am hopeful that at the same time you are still trying to rationalise in a general sense the number of industrial instruments that cover the employees concerned here because it seems to me that that was also an objective that you have had for some time and one that would be of benefit to everybody if it was done and if it was done with expedition rather than not but again that is really a matter I know that has been ongoing and that there have been ongoing discussions about.

PN44

So I am happy to adjourn this report back and encourage you to pursue what may be alternative options in relation to resolving this matter and if at the end of the day you are unable to resolve it any other way, then I will give directions in relation to submissions as to the question of who the order does or does not apply to. So I think that is the process from here really in terms of where we go. So I am happy to adjourn. Therese, we will go off the record and Therese can give me a time as to when I am available and if you are not resolved at that stage then that will end up being a directions hearing in relation to the further dealing with the issue of who the order applies to. Okay?

PN45

MR MAVROMATIS: Yes.

PN46

THE COMMISSIONER: All right. Thank you.

<ADJOURNED INDEFINITELY [10.36AM]