BP2006/3343, Transcript of Proceedings [2006] AIRCTrans 1134 (9 October 2006)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 15830-1

COMMISSIONER HARRISON

BP2006/3343

WILKEN ELECTRICAL SERVICE PTY LTD
AND
COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA
s.431(1) - Appl’n for order to suspend or terminate a bp (pattern bargaining)
(BP2006/3343)

SYDNEY

9.06AM, WEDNESDAY, 27 SEPTEMBER 2006

Continued from 18/9/2006

PN159

MR KUTASI: Mr Quigley as we know kindly undertook to get these, proposed agreement quickly assessed by the Office of the Employment - - -

PN160

THE COMMISSIONER: Well just before you continue Mr Kutasi, there's a new appearance I take it, Mr Davies?

PN161

MR R DAVIES: Yes Commissioner. I appear on behalf of the ABCC. Mr Quigley is unfortunately occupied at another matter in Perth.

PN162

THE COMMISSIONER: Yes.

PN163

MR DAVIES: He sends his apologies, he couldn't be here today.

PN164

THE COMMISSIONER: Thank you Mr Davies. Mr Boyce, what's your role here?

PN165

MR BOYCE: Commissioner, I'm simply assisting Mr Kutasi in case, as far as diaries. He's got a full diary so if programming of the matter requires my involvement I'm just at the table to assist him.

PN166

THE COMMISSIONER: Are you now back with NECA are you?

PN167

MR BOYCE: I am, yes.

PN168

THE COMMISSIONER: Okay. All right. Thank you Mr Boyce. Mr Kutasi?

PN169

MR KUTASI: As we know Mr Quigley committed to getting these agreements assessed by the OEA for prohibited content and the Department of Workplace Relations for compliance with the Code of Practice. Have you seen a copy of these yet?

PN170

THE COMMISSIONER: No I haven't, no.

PN171

MR KUTASI: May I hand them up?

PN172

THE COMMISSIONER: Yes.

PN173

MR KUTASI: Thank you. If I may - - -

PN174

MR BENFELL: Thank you. We'd like a copy of the document for tendering?

PN175

MR KUTASI: You've got them.

PN176

MR BENFELL: I have not got them. Excuse me Commissioner, we'd appreciate a copy of the documents being presented to the Commission.

PN177

THE COMMISSIONER: Sorry?

PN178

MR BENFELL: We would be obliged if we could have a copy of the documents being provided to the Commission.

PN179

THE COMMISSIONER: Yes. Do you have copies Mr - - -

PN180

COUNSEL: Well, actually I have actually extra copies. I brought them along Commissioner, just in case - - -

PN181

COUNSEL: Commissioner, he's actually reading it right now for what it's worth.

PN182

THE COMMISSIONER: Mr Kutasi could you just, when somebody stands up to make a point would you sit down and then we'll take ..... some order in proceedings.

PN183

MR BENFELL: Thank you Commissioner. I now have received copies from the ABCC. I'm obliged.

PN184

THE COMMISSIONER: Thank you. Mr Kutasi?

PN185

MR KUTASI: Thank you. I may take you through them. There's a number of, if you look at page 3 there's the issue I raised about a clause that did not comply with the Act. The OEA has agreed. It says, Mr Rushton who is the senior adviser at the OEA has put the comments on the right hand column as you'll note on each of these pages and he puts his conclusion down in bold with, underlined. So see there with item number 1, termination of employment and he concludes:

PN186

Appears not to comply with section 661.

PN187

Turning to the next page, reference two, consultative mechanism. You'll see on the right hand, prohibited content. If we move to the next one, item 3.

PN188

THE COMMISSIONER: Yes. Excuse me.

PN189

MR BENFELL: Commissioner, as this is a report back it may assist the parties if I can identify what we intend to do with the correspondence.

PN190

THE COMMISSIONER: Yes.

PN191

MR BENFELL: Rather than traipse through the gruesome detail of the correspondence.

PN192

THE COMMISSIONER: Yes I was expecting some overview of what's happened since the last time this matter was before the Commission.

PN193

MR KUTASI: Commissioner - - -

PN194

THE COMMISSIONER: So in summary Mr Kutasi, I take it that Mr Quigley was able to get some urgent attention from the OEA? What generally is happening overall?

PN195

MR KUTASI: Well that's correct. The urgent attention – I only came back yesterday mind you Commissioner so, but in summary, if you don't want me to take you through the whole document, the summary is that the OEA has assessed that the agreement, proposed agreement did contain prohibited content and the summary from the Department of Workplace Relations is:

PN196

I have examined the Wilken Electrical Service Pty Ltd Enterprise Agreement 2006-2008 and consider it contains provisions which are non compliant with the Code of Guidelines.

PN197

So the assessment also from the Department of Workplace Relations, it does not comply with the building Code of Practice, which was the original contentions that I made last, or Monday week. And therefore I press the application that the agreement, that the bargaining period should be suspended or terminated as a result of failing to genuinely attempt to reach agreement, Commissioner. So that's where I'm at.

PN198

THE COMMISSIONER: Well I thought we were all at the point where these opinions were going to be obtained and the union had committed to mending its claims accordingly but - - -

PN199

MR KUTASI: I haven't heard .....

PN200

THE COMMISSIONER: Well maybe it wasn't in those words but at least the union would benefit from an opinion from the OEA as to its position. What is your position now, Mr - - -

PN201

MR BENFELL: Thank you Commissioner. Commissioner, I received a copy of the advice from the OEA. It came to my office at midnight last, well five minutes past midnight last night and I, the first chance I had to read it was today and I've just received, compliments of my friend from the ABCC at this hearing, a copy of the letter dated 22 September 2006 from the Department of Employment and Workplace Relations.

PN202

THE COMMISSIONER: I think - - -

PN203

MR BENFELL: .....

PN204

THE COMMISSIONER: Can I just stop you there. Just for the record I might mark these documents.

EXHIBIT #NECA6 CORRESPONDENCE FROM THE DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

PN205

MR BENFELL: The other correspondence Commissioner - - -

EXHIBIT #NECA7 CORRESPONDENCE FROM OEA

PN206

THE COMMISSIONER: Thank you. Sorry to interrupt.

PN207

MR BENFELL: That's fine Commissioner. As we stated previously Commissioner, we have no intention of seeking prohibited content or content that is not code compliant. We have had the opportunity to very quickly fly through the advice from the OEA. We are prepared to withdraw all of those claims that the OEA identify as prohibited content. We do not intend to delete material that the OEA cannot make a finding on because essentially that means that it is not prohibited content.

PN208

MR KUTASI: Commissioner, if I may. I get interrupted all the time. Is it all right if I say some points on that?

PN209

THE COMMISSIONER: Well I don't think Mr Benfell's finished yet.

PN210

MR KUTASI: On that topic, just because the OEA has a finding that it's not prohibited content doesn't mean that it's not prohibited content. That's exactly why they haven't come down with the finding. It's unclear and it's a matter that does need to be determined by the Commission, if I may Commissioner. We're not agreeing at all on the fact that matters which aren't assessed as prohibited content that come back with an open finding are at all necessarily okay and we would disagree on that.

PN211

THE COMMISSIONER: All right. Thank you. Mr Benfell?

PN212

MR BENFELL: Thank you Commissioner. I don't know how I'd cope without the advice of my colleague. Commissioner, as I was about to explain we are here to withdraw all of the matters that the OEA identify as prohibited content. We're not prepared to withdraw issues that the OEA cannot find are prohibited content. In relation to exhibit NECA6 that is the correspondence from the Department of Employment and Workplace Relations, similarly we are prepared to withdraw all the claims that they identify as not being code compliant.

PN213

Commissioner NECA have identified, sorry advised that they think that despite the OEA saying they can't make a finding about issues, that they still consider them to be prohibited content. They're entitled to their view of course. As to the progress of this matter, Commissioner, we propose that the parties be directed into conference this morning to attempt to resolve any issues about the prohibited content or the code compliancy. We intend to make an application before the Commission this morning.

PN214

Not to you obviously Commissioner but to the Registrar, for an application for a ballot order to conduct a ballot with these employees for a union collective agreement. And we would like the Commission to set a timetable for hearing this matter because at the end of the day if we can't reach agreement on what is prohibited content then the Commission will have to determine that matter. And as we've said we're prepared to accept the OEAs view. NECA in this instance is not. So if we can't resolve that by conciliation it would have to be determined I think by the Commission. If it please the Commission.

PN215

THE COMMISSIONER: Thank you.

PN216

MR KUTASI: Commissioner, on that topic we do accept the OEAs view. There's a number of matters if you ..... say they are unable to conclude. That does not mean that it is or isn't prohibited content, Commissioner, it means we may have a situation where something is determined to be prohibited content later by a court of law and because the OEA have said that they are unable to conclude, it doesn't give our member the protection of not being accused of recklessly including prohibited content. It is not, it's very hard to continue when I get laughed at constantly Commissioner.

PN217

You see the problem is here is that our member is the one who suffers the penalties as a result of lodging agreements with prohibited content. It's not acceptable to simply say, charge in like a bull in a china shop and say well, they haven't assessed it as necessarily being prohibited content therefore let's just stick it in there and see how we go, Commissioner. That is a problem which does need to be sorted. Nonetheless the point and I'm glad Mr Benfell said this, is that he is going to seek to take protected action this morning. This is exactly why this application was made.

PN218

THE COMMISSIONER: He didn't say he was going to seek to take protected action this morning.

PN219

MR KUTASI: He's going to file.

PN220

THE COMMISSIONER: Yes.

PN221

MR KUTASI: To seek to take it this morning, Commissioner. So that is the problem. This is the whole reason why this application was made in the first place, was to prevent that from occurring. If that is sought, as you understand the hearing has to be held within two days. It would be completely impossible for this, for any genuine attempt for this to be, this matter to be debated between the parties, for any agreement of any sort to be discussed as they still have not put a code compliant agreement on the table, Commissioner.

PN222

That is exactly the reason why we came here last week and asked for this matter, for the bargaining period to be suspended or terminated and again I press that application. As you are aware under section 430 as I mentioned last time, the Commission has to suspend or terminate the bargaining period if circumstances failing to genuinely try to reach agreement. And as I also discussed at the last hearing on this matter, the Full Bench has already decided that where prohibited content is included in a proposed agreement, that constitutes failing to genuinely try to reach agreement and therefore the bargaining period must be suspended.

PN223

It's the only option in this matter. If the union wishes to come back with a code compliant and non prohibited content agreement that's for them and I have no problem with that and then we can attempt to negotiate on those grounds. But until such time as they do so the bargaining period must be suspended or terminated and they can start again afresh, Commissioner.

PN224

THE COMMISSIONER: Yes Mr Davies?

PN225

MR DAVIES: I should have thought that given the fact that this documentation wasn't received until late yesterday afternoon as Mr Benfell said it's reasonably complex and there's a lot of issues. But I'd suggest that the matter be adjourned to allow the parties to confer and conciliate in respect of the suspected offending material and the identified offending material and that would assist in the issue about whether a genuine attempt has been, you know, to have been made in respect of an agreement.

PN226

Thereafter the union be given an opportunity to be heard further on the issue of pattern bargaining should that issue still remain because the parties might resolve these issues at that interim. And that's essentially the position of the Commissioner having spoken to Mr Quigley also about the way forward.

PN227

THE COMMISSIONER: Yes. I concur with your broad overview, Mr Davies. I think in all of the circumstances, given the detail of the information which has now been provided to the union and also its commitment that it will withdraw all of those matters which are clearly identified as prohibited content both by the OEA and the Department, that that should be a very firm and constructive basis on which the parties can now move forward. And I'm going to adjourn these proceedings this morning, direct the parties to confer and to report back not necessarily in a formal sense but report back early next week. Mr Benfell?

PN228

MR BENFELL: Commissioner, there's the other matter of our application for a secret ballot order. We intend to pursue that and so it may be best to have regard for that when we're seeking future dates.

PN229

THE COMMISSIONER: Well that's your right to pursue it. The timing of that application might be a key component in whether or not you make some headway in your discussions following these proceedings. I just ask you to take that on board.

PN230

MR BENFELL: And finally Commissioner, I understood the submission of NECA to be that they were not going to negotiate with us on behalf of Wilkens Electrical, is that the case?

PN231

MR KUTASI: Commissioner, the undertaking I made at the last meeting was that we couldn't negotiate whilst prohibited content was on the table. It's prohibited by the Act to negotiate in support of prohibited content. Until such time as an agreement is produced which does not contain prohibited content our member is unable to negotiate anything with the - - -

PN232

THE COMMISSIONER: How can an agreement be produced?

PN233

MR KUTASI: Well they remove the offending content.

PN234

THE COMMISSIONER: What I assumed was that today you were going to go into discussions about a proposed agreement. The outcome of those discussions will determine whether or not there is anything in that proposal which offends.

PN235

MR KUTASI: Well that's why we say that they should remove all the material which is assessed as prohibited content.

PN236

THE COMMISSIONER: You're not being very constructive, Mr Kutasi, with due respect.

PN237

MR KUTASI: Well there's only so much that we can do under the Act. This is the whole - - -

PN238

THE COMMISSIONER: Well you can hide behind the Act and make it impossible to talk to each other if you wish but that's not the intention of the Act per se.

PN239

MR KUTASI: That's not what we intend to do Commissioner.

PN240

THE COMMISSIONER: All right. Well I'm glad to hear that. I'm going to adjourn. The parties should confer today in regard to, and negotiate in regard to an agreement which can be presented to the OEA for their endorsement. More importantly an agreement which the company and its employees can also endorse, that's an important element in all of this. I take that Mr Benfell and the CEPU will note my comments about the timing of an application for a secret ballot and I would ask that the parties contact my associate next Tuesday and advise of the progress of negotiations in the absence of any other applications which may be made by the CEPU.

PN241

MR KUTASI: Commissioner, if a secret ballot order is applied for can you hear it?

PN242

THE COMMISSIONER: I have some personal difficulties in the next two days but the Commission will hear it, not necessarily myself. Thank you. These proceedings will stand adjourned.

<ADJOURNED INDEFINITELY [9.24AM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #NECA6 CORRESPONDENCE FROM THE DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS PN204
EXHIBIT #NECA7 CORRESPONDENCE FROM OEA PN205