C2004/6859, Transcript of Proceedings [2005] AIRCTrans 912 (14 April 2005)

1800 534 258

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 11136-1

COMMISSIONER ROBERTS

C2004/6859

METROPOLITAN FIRE AND EMERGENCY SERVICES BOARD
AND
UNITED FIREFIGHTERS' UNION OF AUSTRALIA
s.170LW - Application for settlement of dispute (certification of agreement)
(C2004/6859)

SYDNEY

10.31AM, TUESDAY, 05 APRIL 2005

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

Hearing continuing

PN1

MS M SALMON: I appear on behalf of the Metropolitan Fire and Emergency Services Board.

PN2

MR D GROVE: I appear on behalf of the United Firefighters Union.

PN3

THE COMMISSIONER: Thank you. Where are we with this matter? I realise that between us we're nowhere, but where is the matter now in terms of the programming of it?

PN4

MS SALMON: Well, Commissioner, we had a number of discussions with Commissioner Foggo, and we reached the point where we could go any further in conciliation, and so we're seeking arbitration of the matter. It's something that the Metropolitan Fire and Emergency Services Board has been working on for some four years now, so we would like to get it finalised as quickly as we could.

PN5

THE COMMISSIONER: So I take it from my quick reading of the file last night that the trial - has the trial taken place?

PN6

MS SALMON: A very limited trial in one particular zone has taken place, and that's concluded. What we're proposing is a trial across the organisation.

PN7

THE COMMISSIONER: Well, that's the way I read it. You tried it, what in, in four out of 47, or something like that?

PN8

MS SALMON: That's right, that's correct, Commissioner, in one particular zone, that's right. The program has two stages. Stage one is what we're discussing at the moment, but the aim is to ultimately move into stage two in a progressive or organic manner, so that's probably the reason we're having a few difficulties in reaching an agreement as to what happens after the trial.

PN9

THE COMMISSIONER: Right. Well, just for the record, am I correct in saying that the parties are seeking me to conduct a private arbitration, the result of which will be binding and final on both parties?

PN10

MS SALMON: Well, that's certainly what we're seeking, Commissioner.

PN11

MR GROVE: Well, yes. If I could just go a step further than the report has gone, just to - and I don't want to go into merit. But the only issue between us before Commissioner Foggo was the definition in the end of a trial. It was the union's view that if a trial was unsuccessful, then by definition it reverts to the status quo, which is the manual system, and we were unable to agree to that. So that's the issue really in a sense for you. We don't disagree about the efficacy of the system.

PN12

THE COMMISSIONER: Okay. Therefore is it possible for the parties to draft an agreed question, which I will determine?

PN13

MS SALMON: I'm hesitant in saying that that's a possibility, Commissioner, because I have a slightly different view to Mr Groves about what we're actually arguing over.

PN14

THE COMMISSIONER: Well, I don't think Mr Groves has answered my question about the private arbitration, the result of which will be final and binding upon both parties either.

PN15

MR GROVE: I thought I had. The answer is yes.

PN16

THE COMMISSIONER: Good, thank you. Perhaps I didn't hear you. Well, unless the parties put to me a particular question to be determined, you might end up with something which is not really suitable to either of you, may you?

PN17

MS SALMON: That is always a possibility.

PN18

THE COMMISSIONER: Given that I have no particular background in this area besides what I've reading the file, and a brief discussion with Commissioner Foggo today, I mean, if you can't determine the question together, how can I determine the outcome?

PN19

MR GROVE: Well, I understand. As I say, I've already put my view of what the question is. I mean, whether it's reformulated in different words is another matter, but essentially to us it's a question of whether if a trial is deemed not to have succeeded, whether the situation reverts to the status quo which preceded it. In other words, does a trial have a time limit, and if a trial doesn't succeed is it just that, a trial?

PN20

MS SALMON: Actually I think that we dealt with that question, and that's the question - - -

PN21

THE COMMISSIONER: I do define success of the trial also.

PN22

MS SALMON: That's right. And, in fact, I think the union's position - and please don't think that I'm trying to put words in your mouth - but I thought the union's position was they had to agree at the end. And so success, I did offer the opportunity to write a criteria of success, and if the criteria was met then it seemed to me the trial would continue. And I think that the stumbling block from our perspective is that the union wants to have vetoing rights as to their definition of success, and that may have something to do with their view of whether they should be paid for the work as it changes from manual to computer, and on that basis we started to unravel the whole process. I think that's my understanding of what happened through the conciliation.

PN23

THE COMMISSIONER: You are also involved in EBA discussions, aren't you?

PN24

MS SALMON: Yes, Commissioner. Our EBA expires on 1 August this year, and we have offered that as an alternative, that in the event that there is productivity gains as a result of this, we would certainly put them in the submission to the government to be considered in terms of the productivity increases that we have to do, demonstrate for an additional .7 per cent, and there's always an opportunity once the trial is ongoing whether we can use the data from that trial to demonstrate whether there's a greater increase in productivity that may, in fact, lead to an individual increase on top of that. But unfortunately we are constrained by government wages guidelines as to how far we can go.

PN25

MR GROVE: Can I just say, Commissioner?

PN26

THE COMMISSIONER: Yes, of course.

PN27

MR GROVE: Can I just say that I don't disagree with what Ms Salmon has just said, in the sense that it's important from the union's point of view that we have at least two aspects covered, and that is, that if there are benefits to be realised from this change that, in fact, are delivered to the membership, and that secondly, the membership have a say in whether or not they believe this system is as useful as the MFB say it is. And I guess it's fair to say that talks have broken down at the point, as we said in outline, but we say that at the end it came to a crunch about whether or not a trial was a trial, not whether a trial was, in fact, the introduction of something that was going to be there anyway.

PN28

THE COMMISSIONER: Okay. So if I could just try and summarise your position so that I understand it. You don't object to the trial, but you want a situation where, at the end of the trial, your options remain open?

PN29

MR GROVE: Yes.

PN30

THE COMMISSIONER: And you're not prepared to concede that, Ms Salmon?

PN31

MS SALMON: We're prepared to concede that if the trial is unsuccessful in terms of its technical abilities, and we will leave everything in place for us to revert to a manual system, but I guess we're confident that after having worked on this process for four years and having trialled it in a particular zone, that it's not the technical abilities that we're of the view will fall. It will probably be the negotiations over what it's worth that will fail. And we don't want that to stop the trial from becoming the implementation of the program.

PN32

MR GROVE: And that's the crux of it really, is a question of whether or not the trial's implementation - - -

PN33

THE COMMISSIONER: That's the real crux. Look, without sort of giving you a determined final view, we're chatting about it at the moment, wouldn't it be to the advantage of the MFB to get the trial done, even if you don't gain absolute certainty at the end of it, you have further negotiations with the union? I'm addressing you, Ms Salmon.

PN34

MS SALMON: Yes, Commissioner, I realise that. The problem is that what is being requested is that we run six months, we put everything on the computer, it's all running really smoothly, and yet the union still has the right to stop it at the end because they're not going to get paid for it, and we just can't live with that.

PN35

MR GROVE: Could I just interpose there, Commissioner, that that six month trial actually takes us past the expiry of the existing agreement. And the union is on record before Commissioner Foggo as saying that we're extremely - confident might be too strong a word, but we don't anticipate that we will not be able to reach agreement on implementation of the system. We believe that the trial has sufficient time in it for us to work out whatever kinks there are and come to whatever arrangements we need to make. So, I mean, really in the end it's a rather semantic argument, because I think both sides are confident that GEARS is probably the way forward. I wouldn't want to be quoted on that outside this room, but that's probably - - -

PN36

THE COMMISSIONER: Well, you just have been on the transcript.

PN37

MR GROVE: I'll shred it before anybody sees it.

PN38

THE COMMISSIONER: I've done that in a previous life as well. Well, I'm still left, you know, thrashing around trying to work out what you're asking me to do jointly which will resolve the impasse between you. Now, all I can do there - in a private arbitration it's always been my practice to have both agreement about finality, but also agreement on the exact parameters of the question to be decided. Unless you have that you will probably still be debating any decision I bring down forever.

PN39

MS SALMON: Well, I guess what we tried to do, and I think we've actually got this all written in the file. Your file is probably not as big as ours. But what we have done is outlined what we believe to be the best way forward on four occasions I think, but the union has still held onto the view that in effect they must be paid for this, and we can't accept that. I mean, there's a whole range of reasons why people are paid, and this isn't one that could automatically determine that there's an additional payment. In fact, it may very well be that - - -

PN40

THE COMMISSIONER: But isn't that part of your EBA talks?

PN41

MS SALMON: Yes. But the constraints upon the EBA discussions are such that we could include GEARS, demonstrate what a wonderful program it is, and the windfall gain would be absorbed by the government, not necessarily by the UFU. That's a fact of life down here.

PN42

THE COMMISSIONER: Right. And how would my decision in the matters before me help you in that dispute?

PN43

MS SALMON: Well, what it does is that it allows for a number of options to remain open, and those options are work value. There's a clause within the existing agreement that talks about allowances, that can be explored before the Commission as well as the EBA, so there's not just one option that's available. But until we get the day though we can't explore any of those options.

PN44

THE COMMISSIONER: But isn't that - and this is not a determinative view - isn't that roughly what the union is saying to you, that you would have the trial, and then you work out between you what the trial means in its application?

PN45

MS SALMON: But we don't want to stop the trial. We think those things can happen alongside one another in parallel.

PN46

THE COMMISSIONER: So do I to a large extent prima facie.

PN47

MR GROVE: And so does the union prima facie, except that we have difficultly accepting the concept of a trial which is de facto implementation.

PN48

MS SALMON: And we say that a trial is, in fact, the beginning of implementation as long as it all goes well, as long as we're not - if there were technical hitches we are prepared. As I said, we've left everything in place so that we can go back. We're not cutting off the ability to revert to a manual system in the event the trial over the organisation fails miserably because the networking isn't right or it just doesn't function. But if that's not a problem then we don't see any reason for it not to continue onto stage 2 if you like, and let the discussions be held. Yes, that's where we sit.

PN49

THE COMMISSIONER: Well, I mean, I can see some problems with that position. I'm at core sympathetic to an argument that the employer can run the business as they see fit within certain basic constraints, but it's your side who has called this a trial, right, and a trial in any legal sense does not have a pre-determined outcome. That's why you have a trial, guilty or not guilty. What you're saying is that you want to have a test run to see from your own perspective how it works, and if you're happy with it, whacko, in it goes. Isn't that really it?

PN50

MS SALMON: That's right.

PN51

THE COMMISSIONER: And the union is saying, well, if it's a trial they want an assessment process at the end of it. And that's where my involvement - I'm not sure - I'll do it, as I'm duty bound to do, but I'm not absolutely certain it's going to fix that problem between you if in the end you're talking about money.

PN52

MS SALMON: Well, that's exactly the problem. I mean, what we've said is that an evaluation would take place in the last month of the test run, if you want to call it a test run, and that if there are significant factors that prevent it from ongoing, well, we'll stop it. But you're right on the money, we are at loggerheads about whether it's worth any money and, if it is, how much, and if it isn't what would the outcome be? And I guess our position is that as long as the test run is going well, we don't want to stop that just because we've had an argument about money and one of us hasn't won.

PN53

THE COMMISSIONER: Well, I just see some problems with this. What you're saying, as far as I can work out, is that you want a test run, but effectively these negotiations you have with the union, the union would no longer be in that loop if you were happy with the test run?

PN54

MS SALMON: I'm sorry, Commissioner, you've got a fair amount of background. What was the last sentence, I missed that?

PN55

THE COMMISSIONER: Sorry, we're on William Street, East Sydney, it's constant ambulances and fire engines. I hope I can remember what I just said to you. I think the position that you're taking is that you want an internal test run, if you're happy with it then it will go ahead, and your consultation processes with the union really cease.

PN56

MS SALMON: Well, we've got consultation processes outlined in the agreement, and they would be ongoing.

PN57

THE COMMISSIONER: Mr Grove can chop in at any time. Go on, Ms Salmon.

PN58

MS SALMON: So on the basis that the consultation process may very well continue, but we don't believe that we require the union to agree to the ongoing implementation of this particular program on the basis that they want to be paid for it. We don't think that that's built into the agreement in any way and we don't see that that is a legitimate power of the union to do that.

PN59

THE COMMISSIONER: And that may well be true or not true, but on that argument the logical conclusion is, why come to me, why come to the Commission? If you believe that you have a right to implement the trial, test, whatever, why don't you just do it and see what happens? I think I know why, but I'm asking the question.

PN60

MS SALMON: Because there would be a ban on it and we'd end up here before you with someone else on a section 127, which we do with monotonous regularity.

PN61

MR GROVE: Well, can I just say, with monotonous regularity they lose them as well.

PN62

THE COMMISSIONER: Well, Mr Grove, I don't know. I'm more familiar with 127s in the coal industry, I don't know about yours.

PN63

MR GROVE: I think your's are probably more intractable than ours.

PN64

THE COMMISSIONER: Possibly so. I have a feeling it might be why I've been given this matter. So look, I'm not sure - - -

PN65

MR GROVE: So I take it we should be considering joining the coal workers if they walk off the job?

PN66

THE COMMISSIONER: Yes. If you ever have an alliance of firefighters and underground miners it would be wonderful. We're chatting about this, but we're not reaching a position where I'm able confidently to determine a matter which will settle your dispute, if you are asking me to determine whether the trial should go ahead. And basically I can't see a great argument against a trial going ahead. But if you're still going to have the money argument at the end of it, what's the point?

PN67

MS SALMON: Yes, that's valid.

PN68

MR GROVE: Can I say that I'm not attempting to be provocative. Let's assume that the trial goes ahead, a trial which we say the MFB has already disclosed is not really a trial, and the productive gain out of that was the equivalent of $100 a week per person, and the MFB, having adopted the position that it has, said, well, we'll give you one cent. I mean, we have no option but to accept because this, in fact, is implementation. It is not a trial in - - -

PN69

THE COMMISSIONER: Well, one cent might be optimistic.

PN70

MR GROVE: That's right.

PN71

MS SALMON: Well, I mean, there are other avenues open if you feel that somehow or other the job has moved into a realm where there's more money, you know, attributed to it and, as I said, there's two available options outside the enterprise bargaining negotiations. They are 30.6, which is the clause in the agreement that talks about allowances, as well as, you know, work value. I mean, there's a whole range of these things occurring, well, we would hope to occur, that may in fact assist that. But until we have the documentation as to what value there is, and that would be the stuff that came out of the assessment in the last month of the trial or the test run, there's no benefit to either party.

PN72

THE COMMISSIONER: All right. But let's go back to the first principles of this. If I make a determination that the trial should go ahead, and even if we set criteria as to what success was, it will not obviate the argument between the parties over money.

PN73

MS SALMON: That's correct.

PN74

THE COMMISSIONER: So you will get your trial, which the union doesn't seem to be disputing, but you won't get the results you're after in any event, will you? Am I missing something here?

PN75

MS SALMON: No. We'll have the argument six months later, that's all, instead of now or whenever. But I guess the sticking point when that was put by Commissioner Foggo was what that in effect meant was that there was a guaranteed cessation at the end of the six months, and we thought that if we went down this path we could get the whole thing finalised, if you like, before we got to that point. I mean, no one wants to look forward to a battle in six months time if we can avoid it, you know, in another way.

PN76

THE COMMISSIONER: Well, unless I was to determine whether it was worth money or not, what can we do?

PN77

MS SALMON: Well, we weren't seeking that, Commissioner, because we don't know, and the data hasn't been established yet to be able to make that - - -

PN78

THE COMMISSIONER: Well, I can tell you I wouldn't be doing it, but I'm saying that without doing it I'm not sure what I can do to help you. What it's going to come down to is, I am going to direct you to formulate a question to put to me if you wish this matter pursued at arbitration. Formal documentation will issue, but you will have seven days to provide me with that agreed question. Now, talking about any hearing about this matter, will there be witness evidence?

PN79

MS SALMON: We were proposing witness and a visit out to the station as well just to demonstrate what we're talking about.

PN80

THE COMMISSIONER: All right. Mr Grove?

PN81

MR GROVE: No, not from our point of view I don't think. But in any event what Ms Salmon is proposing is going to take up a day of your time, and I'm sure if we need a witness we can squeeze him in the same day.

PN82

THE COMMISSIONER: Well, that's true, yes. Well, do the parties want formal directions issued in relation to witness statements and submissions in this matter? I suppose we had better, I think to give me some chance of understanding it in advance. Are there dates that you have in mind?

PN83

MS SALMON: The only reservation I have, Commissioner, is I'm away from 7 May until 19 May, and then we have two days in the Commissioner here in Melbourne on the 23rd and 24th, so May is a bit of a problem for me, and those dates, the 23rd and the 24th, and probably Mr Grove as well.

PN84

THE COMMISSIONER: All right. Mr Grove?

PN85

MR GROVE: Can I say late May would suit us.

PN86

THE COMMISSIONER: Yes. Well, late May is better because I'm going away the second week of June for a couple of weeks. I mean, obviously there is, despite the long history to this, there is some urgency to this. Somebody mentioned something about the 24th being a bad day?

PN87

MR GROVE: That's a day that's already set aside for another matter.

PN88

THE COMMISSIONER: Okay. How many days do you reckon we'll need?

PN89

MR GROVE: One.

PN90

THE COMMISSIONER: One, including inspection?

PN91

MS SALMON: One, including inspection, yes.

PN92

THE COMMISSIONER: Fair enough. Good to meet optimists. Well, if you want a day off between hearings, how about we do it on 26 May?

PN93

MS SALMON: Sounds fine.

PN94

MR GROVE: Yes, I think that's a good date.

PN95

THE COMMISSIONER: Well, look, you can leave it to me. I'll issue directions which line up with that date in terms of the serving of submissions and witness statements and the rest of it. Is that agreed?

PN96

MS SALMON: Yes.

PN97

MR GROVE: Yes.

PN98

THE COMMISSIONER: And you're on notice that you've got seven days from today's date to formulate the question. If you're unable to formulate the question, so some fear that you won't be able to, I want both parties to put to me in writing their question to be determined, and I'll try and work it out.

PN99

MS SALMON: Thank you.

PN100

THE COMMISSIONER: But it's far better if you're both working off the same script and I'm working of it as well. So this matter is adjourned for hearing in Melbourne at 10 am on Thursday, 26 May 2005. Is there anything further anybody wants to put to me today?

PN101

MR GROVE: No, Commissioner.

PN102

MS SALMON: No, Commissioner.

PN103

THE COMMISSIONER: All right. We'll hear from you no later than seven days about the question, okay? We're adjourned.

<ADJOURNED UNTIL THURSDAY 26 MAY 2005 [10.56AM]