C2005/1612, Transcript of Proceedings [2005] AIRCTrans 605 (10 March 2005)

1800 534 258

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 10694

COMMISSIONER TOLLEY

C2005/1612

s.99 - notification of an industrial dispute - log of claims

Transport Workers' Union of Australia
and
Australian Postal Corporation
(C2005/1612)

MELBOURNE

9.55AM, TUESDAY, 01 MARCH 2005

Continued from 3/2/2005

Adjourned sine die

PN95

MS H RYALL: I appear for the Transport Workers Union in this matter.

PN96

MS J PORTER: I appear for Australia Post with MR R FURLAN and MR P RYAN.

PN97

THE COMMISSIONER: Thank you.

PN98

MS C GEE: I appear in this matter for the intervenor, the CEPU.

PN99

THE COMMISSIONER: You seek leave. What are your reasons for intervening?

PN100

MS GEE: I can go into those now if you wish.

PN101

THE COMMISSIONER: Yes, I certainly do want to know now.

PN102

MS GEE: Pursuant to section 43, we have sought leave to intervene in these proceedings in order to represent the interests of the CEPU. I can inform the Commission that the CEPU overwhelmingly has the majority of union members within Australia Post are CEPU members. I can hand up to the Commission a letter from Australia Post verifying that 2511 persons are employed in the transport employment category, and of these, as I said previously, overwhelmingly the majority are CEPU members.

PN103

THE COMMISSIONER: Where is the correspondence, and where is a copy for each of the parties?

PN104

MS GEE: Yes. I have got that Commissioner.

PN105

THE COMMISSIONER: Is that a copy for each of the parties?

PN106

MS GEE: Well, post would have a copy.

PN107

THE COMMISSIONER: No, Ms Gee don't come here presuming what people have or haven't got. I ask you if you have got a copy for each of the parties.

PN108

MS GEE: I have Commissioner.

PN109

THE COMMISSIONER: The answer is I have or I haven't.

PN110

MS GEE: I have Commissioner.

MFI #1 - INTERVENOR 1

PN111

MS PORTER: Sir, I am happy I have seen that letter before.

PN112

MS GEE: I have a copy for each of the parties.

PN113

THE COMMISSIONER: Thank you. I have read the correspondence.

PN114

MS GEE: Okay, thank you, Commissioner. Well, as well as having of the 2500 persons employed in the transport area, in addition to 1126 being on payroll deductions, there is in excess of another 1000 employees who are on other forms of membership payment arrangements.

PN115

THE COMMISSIONER: And what are they?

PN116

MS GEE: Their membership payment arrangements?

PN117

THE COMMISSIONER: With Australia Post or direct to the union?

PN118

MS GEE: No, direct to the union.

PN119

THE COMMISSIONER: Thank you.

PN120

MS GEE: And I could hand up letters in regard to that membership.

PN121

THE COMMISSIONER: No.

PN122

MS GEE: Thank you. To the best of my knowledge, none of the people employed within the transport area of Australia Post are TWU members, and if there are any, then it would be no more than perhaps a handful. The CEPU has a branch in each state and members employed in the transport area of Australia Post in each state of the Commonwealth and the Australian Capital Territory and the Northern Territory. The CEPU has traditionally represented the industrial issues of drivers in Australia Post that the TWU is now seeking to have covered by it.

PN123

THE COMMISSIONER: Ms Gee, does that include employees of contractors to Australia Post, because I know for a fact they don't belong to the CEPU.

PN124

MS GEE: The contractors?

PN125

THE COMMISSIONER: Yes.

PN126

MS GEE: I would imagine that there are some contractors who would be CEPU members.

PN127

THE COMMISSIONER: There are a lot of trucks going up and down the highway with Australia Post logos, and were companies like Finemores, as they were then, and others badged on the side of them, and they are members of the TWU.

PN128

MS GEE: They may well be Commissioner.

PN129

THE COMMISSIONER: Well, I know they are.

PN130

MS GEE: The overwhelming majority of Australia Post employees who are drivers are members of the CEPU. I don't have data on contractors that are driving for Australia Post who may or may not be members of the CEPU, but if that information is required, then I am sure we can provide it.

PN131

THE COMMISSIONER: How do you intend providing it? They might not want to give it to you. They have got some privacy rights, haven't they?

PN132

MS GEE: Well in that case, we won't be able to provide it.

PN133

THE COMMISSIONER: Not for you or anyone else to go trawling through their records, is it?

PN134

MS GEE: The coverage of drivers is recognised in the constitutional coverage of the union, and coverage of these drivers dates back to the early 1920s when the union was then the Amalgamated Postal Workers Union. CEPU coverage of drivers has also been recognised in the union movements restructuring exercises of the 1990's. If I can just hand up a copy of the 1993 ACTU Divisional Executive Decisions, and a copy for the parties.

MFI #2 - 1993 ACTU DIVISIONAL EXECUTIVE DECISIONS

PN135

THE COMMISSIONER: You don't have to take me to that correspondence Ms Gee, I am aware of it.

PN136

MS GEE: Beg your pardon?

PN137

THE COMMISSIONER: You don't have to take me through that, I am aware of it.

PN138

MS GEE: Okay then, thank you, Commissioner. I was just going to draw your attention to the second page, decision 4, but I will move on. The CEPU is party to a number of awards and agreements concerning Australia Post employees including those that are employed in the transport area, and they include the Australia Post General Conditions of Employment Award 1991, the Australia Post Operations Award 1999, the Australia Post Enterprise Agreement Number 6 2004, and various other agreements in the transport area. The Transport New South Wales ACTU Parity Agreement 2001, the Western Australia Transport Division Agreement 1997, the South Australian Northern Territory Transport Agreement 1997, the Tasmania Transport Agreement 1996. Another agreement, the Post Logistics Third Party Warehousing Fulfilment Business Enterprise Agreement 2004.

PN139

THE COMMISSIONER: Ms Gee, how many members have you got at this logistics centre, which I am told is not a medium centre in the last submissions before the Commision?

PN140

MS GEE: I don't have the number of membership in the logistic centre.

PN141

THE COMMISSIONER: Well, isn't that the matter that is before the Commission?

PN142

MS GEE: My understanding is that - - -

PN143

THE COMMISSIONER: Ms Ryall?

PN144

MS RYALL: Commissioner, I was going to make submissions today, but our dispute extends beyond just Post Logistics to the whole of the Australian Postal Corporation.

PN145

THE COMMISSIONER: Well, that wasn't your submission on the last occasion?

PN146

MS RYALL: No, but that's who has been logged. We did say that it was with reference to that company in particular, but the log was made out to the Australian Postal Corporation as a whole.

PN147

THE COMMISSIONER: Well, can I say without hearing any - you can sit down Ms Gee.

PN148

MS GEE: Thank you, Commissioner.

PN149

THE COMMISSIONER: Without hearing any more submissions, and I will hear all the submissions you want to make, if it's the TWUs intention to extend by further submission what was put before me last time, you are treading on pretty thin ground in respect to the coverage of drivers for Australia Post as a generality, because my own knowledge as a former trade union official, as a member of the ACTU executive many years ago, and as a former industrial legal officer for the Labour Council of New South Wales, tells me they have had that coverage.

PN150

MS RYALL: Commissioner, that might be true but my understanding is that they don't have the right to exclude youth coverage particularly if Australia Post is now intending to act as a transport company.

PN151

THE COMMISSIONER: Ms Ryall, they have always acted as a transport company, they have always employed their own personnel, put in their own vehicles.

PN152

MS RYALL: That was for the particular purpose of mail delivery. What we - - -

PN153

THE COMMISSIONER: What about their other work? They have also contracted from time to time to do other work to businesses. There was not purely what we would call mail as in affixing a stamp or having something whacked on and says you have paid five bob for something to go somewhere.

PN154

MS RYALL: Our understanding is that the nature of the business of Australia Post has recently changed, and they are starting to do work that is just not ancillary to mail, and that is having a substantive portion of their work in transport including meat.

PN155

THE COMMISSIONER: Okay. I look forward to your submissions about that if you intend to change what you have told me last time. Yes, have you finished Ms Gee?

PN156

MS GEE: Well, yes Commissioner that really concludes my submissions in relation to reasons for intervention.

PN157

THE COMMISSIONER: Yes. I think the reasons are correct and leave is granted.

PN158

MS GEE: Thank you.

PN159

THE COMMISSIONER: Now, I directed the parties to have some discussions when you were last before me. When did those discussions take place, and what was the outcome of them? Ms Ryall?

PN160

MS RYALL: Commissioner, I had a discussion with Ms Porter on Friday. That discussion essentially entailed that we asked whether the Australian Postal Corporation would be continuing to object. They confirmed that, and we confirmed that we would continue to pursue the log of claims.

PN161

THE COMMISSIONER: Ms Porter?

PN162

MS PORTER: Sir, just prior to that, the day after the hearing I think, I did get in touch with my friend to advise her of the details of the enterprise bargaining agreement and to give her my contact details should she need them. Also sir, the conversation went a little bit further than just mentioned on Friday. I did in fact asked my friend if she would outline to me the detail of the submissions she would be making today in order that I might have an opportunity to prepare a response to that so that we would not come here today without me having knowledge of the submissions she would make, and then subsequently my request for an adjournment in order for me to properly respond. I do have some correspondence which was faxed to my friend.

PN163

THE COMMISSIONER: That was faxed by you Ms Porter?

PN164

MS PORTER: It was.

PN165

THE COMMISSIONER: Thank you.

MFI # R2 - CORRESPONDENCE FAXED BY MS PORTER

PN166

MS PORTER: I raise that now. Sir, before my friend starts making her submissions, I just wondered if a matter of housekeeping, if I could get an indication from you how you are proposing to proceed with this matter. On arriving here this morning Ms Ryall has provided me with quite an extensive folder of her submissions, and also cases that she will be referring to which I haven't had an opportunity to look at.

PN167

THE COMMISSIONER: If I can just stop you there Ms Porter. Ms Ryall, when is the Commission going to be given the - - -

PN168

MS RYALL: It's going to be handed up now.

PN169

THE COMMISSIONER: Right now, thank you. Then ladies you can both sit down for a moment. Ms Ryall can I put it to you that this is a fairly substantial submission to hand up to a party at what I will call the last minute, and in normal cases you would have given it to the other side sometime before so they can examine them and prepare a counter-submission.

MFI #A2 - FOLDER OF SUBMISSIONS AND SUPPORTING CASES

PN170

MS RYALL: Commissioner that might be true, these submissions were only completed this morning, so that would go some way to explaining why they are only handed up now. In addition, we would submit that Australian Postal Corporation has already made quite substantive submissions of their own in the last hearing which we were given no notification, the fact that it is here in writing for them to view I think, we could have just come and made oral submissions, and I indicated that's what we may do on Friday, upon the request, that's what I have prepared, and this is the earliest opportunity that I could provide these submissions to the respondent. We would submit, however, that Ms Porter's submissions in reply, if allowed, should be limited to any novel part of my submission, given that we are in response to her objection.

PN171

THE COMMISSIONER: Well, how does one give a novel response to cream?

PN172

MS RYALL: Sorry, not a novel response to the case law that - a novel response to that which is raised.

PN173

THE COMMISSIONER: Well, how can one examine case law in five minutes at first blush of being given something to read?

PN174

MS RYALL: These are the cases that would have to have clearly been considered by Ms Porter in her submissions.

PN175

THE COMMISSIONER: No, I'm sorry, you can't make that presumption. If she made the same presumption about you she would be getting told the same thing. You can't presume someone would do something in a case like this.

PN176

MS RYALL: That is perhaps true, Commissioner.

PN177

THE COMMISSIONER: I am not frightened of appeal benches in this place, I couldn't care two hoots about it or anywhere else, but I am not an imbecile, and I am not going to allow matters to proceed unfairly, whether I agree or disagree with it is immaterial and I haven't formed that view yet.

PN178

MS RYALL: Commissioner, would it then perhaps be appropriate to adjourn this to a - - -

PN179

THE COMMISSIONER: It's going to be adjourned, I can assure you and there is going to be some written directions issued, because I am not happy about the approach either side has taken to this. That discussion you had last Friday was best described as the discussion you have when you are not going to have a discussion. Anything you want to say at the moment Ms Porter?

PN180

MS PORTER: No, sir, the only other comment I wanted to make is that since when we were here a month ago the actual scope of the dispute has seemed to have changed quite substantially.

PN181

MR COLGRAVE: It's about as wide as Port Philip Bay at the moment.

PN182

MS PORTER: Absolutely sir, and in my discussion on Friday with Ms Ryall she did mention that the TWU was now pursuing Australia Post in its entirety, but again that was on Friday, whereas we were here a month ago, and our understanding was that the scope of this was Post Logistics drivers, in particular, courier drivers of Post Logistics.

PN183

THE COMMISSIONER: That was my understanding.

PN184

MS PORTER: Yes, sir. So perhaps some of our preparations and submissions would have been different had we had advance knowledge of that, sir? I would suggest that it would be appropriate, as you have suggested, the matter be adjourned with directions as to the filing of an outline of written submissions. When we were before you on 3 February, sir, I did briefly outline what our arguments would be, but that was a brief outline with a few examples, and there are other matters that I would want to have the opportunity to put before you that are not raised in my original submissions.

PN185

THE COMMISSIONER: I presume you have nothing further to add, Ms Gee?

PN186

MS GEE: No, Commissioner.

PN187

THE COMMISSIONER: Anything further to add, Ms Ryall?

PN188

MS RYALL: Commissioner, I would only add that we are seeking a dispute against those parties that were logged. That includes Australian Postal Corporation who were logged in their own right. So in that way we believe we haven't misled the Commission. We did say that our interest was in particular to Post Logistics and that was based on the information that we were given at that time.

PN189

THE COMMISSIONER: And that information has now changed I presume.

PN190

MS RYALL: It has.

PN191

THE COMMISSIONER: Well, therefore, your submissions would change, it follows, doesn't it?

PN192

MS RYALL: Thank you, Commissioner.

PN193

THE COMMISSIONER: I am not saying you misled the Commission, I am just saying I am not going to entertain decision making on the run. This matter is adjourned sine die.

<ADJOURNED INDEFINITELY [10.18AM]

LIST OF WITNESSES, EXHIBITS AND MFIs

MFI #1 - INTERVENOR 1 PN110
MFI #2 - 1993 ACTU DIVISIONAL EXECUTIVE DECISIONS PN134
MFI # R2 - CORRESPONDENCE FAXED BY MS PORTER PN165
MFI #A2 - FOLDER OF SUBMISSIONS AND SUPPORTING CASES PN169