C2004/6777, Transcript of Proceedings [2005] AIRCTrans 380 (16 February 2005)

1800 534 258

TRANSCRIPT OF PROCEEDINGS

---

Workplace Relations Act 1996 10357

SENIOR DEPUTY PRESIDENT O'CALLAGHAN

C2004/6777

s.127(2) - appln to stop or prevent industrial action

Sigma Pharmaceuticals Pty Ltd
and
Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union
(C2004/6777)
Sigma Pharmaceuticals Pty Ltd Engineering and Laboratories Certified Agreement-Victoria, 2003-2006

MELBOURNE

12.34PM, FRIDAY, 04 FEBRUARY 2005

Continued from 30/11/04

PN76

THE SENIOR DEPUTY PRESIDENT: Good afternoon, I appreciate that this matter was last before Senior Deputy President Acton. The appearances may not have changed but so that at least I know who you all are, can I ask you to announce appearances again please.

PN77

MR D SULLIVAN: I appear for the Australian Industry Group on behalf of the company, with me is MR V CAREEDY and MR S SIDDALL.

PN78

MS C CHEW: I appear on behalf of the AMWU and with me
MR P ABRAHAMSON, the organiser.

PN79

THE SENIOR DEPUTY PRESIDENT: Thank you, Miss Chew. Mr Sullivan I have re-listed this matter. Senior Deputy President Acton was not able to hear it. The Commission's file notes that you want the matter brought back on urgently. I can advise you that I have read the transcript of the earlier proceedings. It appears apparent to me that the parties have reached some agreement, which may or may not have come unstuck. I do not know what that agreement was, so that I am very much in your hands as to what it is that you are seeking this afternoon and what has prompted this particular request.

PN80

MR SULLIVAN: Thank you, your Honour. I am not aware of any agreement that was reached, your Honour.

PN81

THE SENIOR DEPUTY PRESIDENT: I see. Maybe it was optimistic. The parties appeared to adjourn into conference and the matter certainly has not proceeded since that November hearing.

PN82

MR SULLIVAN: Well, my summary may assist you in the understanding , your Honour. Well that hearing was last heard in November and it was late in the afternoon, your Honour. At that stage there was industrial action happening. There was a 24 hour stoppage. Senior Deputy President Acton used her discretion not to issue the orders sought, because it would have had little affect or no affect on the action being taken on that day. However, Senior Deputy President Acton left the file open in the event that any further industrial action was threatened and indicated that she would list the matter at short notice if requested. That is why we are here today, your Honour.

PN83

In those proceedings, Senior Deputy President Acton surmised on the validity of the existing EBA, in light of the Electrolux decision, because it contained a clause amongst others dealing with the deduction of union views. The inference was that the agreement may not have been valid, which would potentially allow the AMWU to establish a new bargaining period and then seek to engage in protected action in pursuit of a new agreement, similar to what other unions have done.

PN84

At that stage there was some conjecture about that the effect of the Electrolux decision on the existing agreement, but since then, as a result of the uncertainty of the Federal Government, submitted the workplace relations amendment agreement validation bill, which passed through parliament on the 9 December and became operative of the 17 December; and what that act said was that it validated certified agreements which were certified prior to the date of the High Court's Electrolux decision on the 2 September but did not validate specific clauses, which do not pertain to the employment relationship such as some of the ones that are contained in this agreement.

PN85

The act resolved the uncertainty regarding the validity of the existing agreement and in the context of this application states the Sigma agreement. Notwithstanding this development the AMWU has endeavoured to establish a bargaining period on the 10 December and have subsequently have made threats about taking industrial action at a meeting yesterday.

PN86

The Commission should not accept that the AMWU representative was not aware of the legislative changes when they called the meeting with the company to discuss the claims being made in the bargaining period notice. At that meeting yesterday, the company stated the impact of the legislative changes that the AMWU representative responded the claims for the additional redundancy benefits would still be pursued with further industrial action. The AMWUs representative approach in choosing to ignore the legislation that has come into effect is clearly misleading employees about their rights in this matter.

PN87

The Sigma agreement contains redundancy provisions at clause 21, which in accordance with the provisions of section 170MN of the Workplace Relations Act and the no extra claims clause at clause 8 of the agreement, denies the AMWU the right to pursue additional redundancy benefits with industrial action. In light of the further threat of industrial action, coupled with the unprotected action already taken on the 26 November, the company presses for the orders sought in the application. Whilst the application seeks a life of three months, your Honour, we request the consideration by the Commission for a six months' duration, which is the time frame from which the Croydon plant manufacturing will close.

PN88

If the Commission is currently constituted, it is not inclined to issue the orders sought by the company, then the company seeks an undertaking by the AMWU on record that it will, in relation to the issue at Sigma, at all times work and conduct itself within the provisions of the Workplace Relations Act and will not engage or threaten in any form of industrial action which is contrary to the provisions of the Act, if the Commission pleases.

PN89

THE SENIOR DEPUTY PRESIDENT: Mr Sullivan, should I understand what you describe is the threat of industrial action is at this point only a verbal threat, or is it documented anywhere?

PN90

MR SULLIVAN: No. It is only documented by the bargaining period but there has been a verbal threat to the employees yesterday, your Honour.

PN91

THE SENIOR DEPUTY PRESIDENT: And do you have a copy of that bargaining period notice?

PN92

MR SULLIVAN: Yes, your Honour. Within that meeting, your Honour, the union was asked to withdraw it, which they refused, saying it was their right and they were going to pursue it and there would industrial action if the company did not agree to their claim.

EXHIBIT #S1 BARGAINING PERIOD NOTICE

PN93

THE SENIOR DEPUTY PRESIDENT: Thank you Mr Sullivan. Ms Chew?

PN94

MS CHEW: Thank you, your Honour. Mr Sullivan has painted a bit of a picture of what happened in November last year and I do not have with me the exact dates for when it was first listed. It was first listed on a Friday in November and at those proceedings Senior Deputy President Acton indicated that she would call the matter back on the subsequent Wednesday I believe, the Tuesday or Wednesday.

PN95

THE SENIOR DEPUTY PRESIDENT: I think you will find it was a Tuesday.

PN96

MS CHEW: Tuesday?

PN97

THE SENIOR DEPUTY PRESIDENT: Last before the Commission on Tuesday the 30 November.

PN98

MS CHEW: 30 November. So, now, when she had an opportunity to hear from Mr Abrahamson at those proceedings, I am not sure if they are on transcript, and I won't go into the contents of the conference, but part of the frustration that the AMWU encountered with the company was to get some degree of finality and discussions about when the redundancies would occur. There has been a lot of talk about closing down the plant at Croydon. Whether that would happen in June or December or whatever those dates were. So those were the nature of discussions had on that Tuesday 30 November 2004 and SDP Acton at that stage declined to exercise a discretion to grant the 127.

PN99

As I am informed the AMWU, through Mr Abrahamson, lodged with the company certain notices, bargaining period notices dated 10 December 2004 and we note, and also from Mr Sullivan submissions that the validation Act has come into effect. I thought it was the 15 December but I may be corrected. It is possibly the 17 December.

PN100

Now when this matter was listed before you and when I received notification of it I called Mr Abrahamson and enquired as to what was happening and he told me that the AMWU had indeed lodged the BP notices with the company and I advised him that at that stage that the validation bill had come into operation in mid December and I advised him that we would be withdrawing, or we should withdraw the BP notices.

PN101

Mr Abrahamson had meetings with the company yesterday and his recollection of events defers from the company's version. His version is that at no stage did he say to the company we will definitely take action, you can do what you like, but we will go ahead anyway. His version is certainly that if the company believes that that is the position, legal position, then certainly it is entitled to communicate that with its workforce.

PN102

Now, as I am instructed, Mr Abrahamson had no intention of taking unprotected industrial action. His view of the events was that he was entitled to do so as SDP Acton had indicated and since being advised by myself that the Validation Act has come into effect, he has since acknowledged that the pursuit of the claim will now cease.

PN103

So on that basis we say, your Honour, that there is no cause and certainly no jurisdiction to grant the 127. Any threatened industrial action was meant to be protected industrial action under the BP notice of 10 December 2004. Seeing as the union now formally withdraws that notice there is certainly no intention of engaging industrial action, if your Honour pleases.

PN104

THE SENIOR DEPUTY PRESIDENT: Ms Chew, I wonder whether I can put those issues in my words and you can tell me whether I have correctly understood what you are putting to me. I guess to both the Commission and to the employer. Having done that I want to follow up with a couple of issues associated with what appears to be the potential for ongoing disputation in accordance with the terms of the agreement. Should I understand that in effect the AMWU is now undertaking to withdraw that bargaining period notice if that has not already been done?

PN105

MS CHEW: It hasn't officially been done, but yes, it is certainly our undertaking.

PN106

THE SENIOR DEPUTY PRESIDENT: And secondly, can I understand that the AMWU are, in the event that there is any doubt about it, undertaking to cease pursuit of claims that are outside of the certified agreement?

PN107

MS CHEW: Yes, we do.

PN108

THE SENIOR DEPUTY PRESIDENT: And further that the AMWU are undertaking that it will not pursue, or encourage, or support any form of industrial action of an unprotected nature?

PN109

MS CHEW: Yes, that is certainly correct, your Honour.

PN110

THE SENIOR DEPUTY PRESIDENT: Perhaps before I put that back to Mr Sullivan, is it the case that the issues that were apparent back in November, relative to the selection of persons for redundancy have been resolved?

PN111

MR SULLIVAN: No.

PN112

THE SENIOR DEPUTY PRESIDENT: Or do they remain on the table?

PN113

MR SULLIVAN: No.

PN114

MS CHEW: Yes.

PN115

THE SENIOR DEPUTY PRESIDENT: But if they remain on the table as I understand, Mr Abrahamson is shaking his head to indicate that to be the case, then in the event that they - perhaps you can tell me what you understand to be the status of those issues, Mr Abrahamson?

PN116

MR ABRAHAMSON: Well just in terms of the selection of the employees there, the union has not been consulted in terms of which employees are going to be selected for redundancy or which employees are going to be selected for relocation at the Dandenong plant, but we were told yesterday that two people had been selected - well one person had been selected for relocation and another person was under - well had been asked to relocate and essentially that remains the situation, so one assumes that that issue has been resolved.

PN117

THE SENIOR DEPUTY PRESIDENT: Thank you. Now Ms Chew, if by chance that issue or indeed the application of any other component of clause 21 of the agreement, which is the redundancy clause, was to remain in dispute, can I understand then, that in effect, the AMWU is saying that it would be committed to following the dispute resolution process in the agreement.

PN118

MS CHEW: Yes, sir.

PN119

THE SENIOR DEPUTY PRESIDENT: Which might result in the reference of a continuing dispute to the Commission, but ought not resolve in lost time.

PN120

MS CHEW: Yes. I would strenuously encourage the organiser and members to follow that course.

PN121

THE SENIOR DEPUTY PRESIDENT: Thank you. Thank you, Ms Chew. Now, Mr Sullivan, you have heard what are in effect three undertakings from
Ms Chew and the AMWU, together with her advices as to the intention of the AMWU should a matter continue to be in dispute. Is there any reason why those undertakings would not meet the requirements that you indicated to me earlier?

PN122

MR SULLIVAN: No, the company, your Honour, is happy with the words that the union has given. I suppose the only area of concern with the last statement
Ms Chew made regarding she would advise the organiser not to take any action, we would like a commitment from the organiser, who is the site organiser, that he is committed to the same issues and that would suit the organisation.

PN123

THE SENIOR DEPUTY PRESIDENT: Ms Chew has given some fairly clear undertakings on behalf of the AMWU. It is not normally my practise to go behind those undertakings. My experience is perhaps tainted by South Australia, is those undertakings are seldom broken in any way.

PN124

MR SULLIVAN: Well, the company is happy with those undertakings, yes.

PN125

THE SENIOR DEPUTY PRESIDENT: And is it the employer's expectation to that were a matter relating to the redundancy situation, and in particular the operation of clause 21 of the agreement, were to remain in dispute, then the employer also recognises the capacity and the intention of the parties to resolve any such outstanding dispute, by way of the process outlined in clause 15 of the agreement, which is the dispute resolution agreement?

PN126

MR SULLIVAN: Yes, your Honour, that is the process the company has always intended to use.

PN127

THE SENIOR DEPUTY PRESIDENT: Thank you. On that basis, Mr Sullivan, is there any need for me to keep the Commission's file on this matter open.

PN128

MR SULLIVAN: No, your Honour, given those undertaking, your Honour, I think it can be closed.

PN129

THE SENIOR DEPUTY PRESIDENT: Very well. I wish the parties well in their ongoing discussions and close the Commission's file in this matter on that basis. I will adjourn the matter accordingly.

<ADJOURNED INDEFINITELY [12.50 PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #S1 BARGAINING PERIOD NOTICE PN92