C2006/2234, Transcript of Proceedings [2006] AIRCTrans 485 (30 March 2006)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 14535-1

COMMISSIONER EAMES

C2006/2234

VISYPAK CARTONS PTY LTD TRADING AS VISYPAK, BEVERAGE PACKAGING CARTONS SYSTEMS
AND
AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION NATIONAL UNION OF WORKERS
s.127(2) - Appln to stop or prevent industrial action
(C2006/2234)

MELBOURNE

4.14PM, THURSDAY, 16 MARCH 2006

PN1

MR A DOUGLAS: I seek leave to appear on behalf of Visypak.

PN2

MR T HALE: I'm appearing on behalf of the AMWU and we would oppose the appearance of Mr Douglas. Did you want some submission in relation to that now?

PN3

THE COMMISSIONER: I'll get the other appearances first.

PN4

MS S ALLISON: I appear on behalf of the NUW. We would support the AMWUs application to oppose the appearance of Mr Douglas.

PN5

THE COMMISSIONER: We should hear both. What's the opposition that is made, Mr Hale?

PN6

MR HALE: Yes, Commissioner. The grounds for opposing the representation of Mr Douglas is dealt with in section 42 of the Act, and we say that counsel are a party, including employing authority, may be represented by counsel, solicitor or agent, and then it gives those grounds on which they can be represented. (a) Is by leave of the Commission with the consent of all parties. There's no consent of all the parties. By leave of the Commission granted on application made by a party if the Commission is satisfied that having regard to the subject matter of the proceeding there are special circumstances that make it desirable that the parties may be so represented. We say no such circumstances apply in relation to this matter, and thirdly, by leave of the Commission granted on application made by the party is the Commission is satisfied that the party can only adequately be represented by counsel, solicitor or agent.

PN7

So we're not really dealing with a small company that doesn't have specific human resources personnel as employees. We're dealing with a large company that has those resources within its organisation and consequently we would be saying that the Commission shouldn't exercise its discretion under 42(3) of the Act to allow Mr Douglas to appear on this occasion.

PN8

THE COMMISSIONER: Ms Allison, do you want to add anything?

PN9

MS ALLISON: Commissioner, all that I would add is that you would have seen on the documentation provided that the essence of this dispute is really a very, in some ways, garden variety dispute that could be nutted out between the union and the company and we believe that that's the appropriate way for it to be handled.

PN10

THE COMMISSIONER: Mr Douglas?

PN11

MR DOUGLAS: Commissioner, as you are aware I have appeared for Visy, all types of Visy industry doing 127 applications and the person who does those for Visy across Australia is actually me. There is no other person who does 127 applications for the business. I'm sure this is going to involve some interpretation of the EBA and the awards of what is training and what is not training, and there is nobody here or available to come who has any experience in doing appearance work before this Commission and there is me who has done the last two successful 127s against the AMWU for breaches of the award and EBA.

PN12

THE COMMISSIONER: Don't pre-empt me.

PN13

MR DOUGLAS: I'm not pre-empting you. I'm just saying on the last two occasions that we have actually been to this Commission before Senior Deputy President O'Callaghan and Commissioner Hingley, it's been me who's appeared and I think your own experience of me is that I don't get in the road of settling matters. I normally make 99 applications. It's just today we've got people sitting, not working, and that's why we proceeded directly to a section 127 application, Commissioner.

PN14

THE COMMISSIONER: All right. I propose to grant leave to this extent, that I'm happy to hear the opening submissions in relation to the issues that appear to be before the Commission. It may be, having heard those submissions, that I come to a view that it's worthwhile adjourning into conference to see if there's something to be sorted out for a conciliation process and if I come to that view, then it would be representatives of the company that I would specifically want represented in those discussions, not just counsel.

PN15

With that caveat on it, I'll grant leave for you to appear in the proceedings. Tell me what this is about, Mr Douglas?

PN16

MR DOUGLAS: May it please the Commission, approximately a week ago the AMWU delegates only advised management that they wished to go to a delegates' forum, and I'll hand up a copy of that. That was provided to the business.

EXHIBIT #D1 WRITTEN ADVICE RE AMWU DELEGATES' FORUM

PN17

MR DOUGLAS: Commissioner, as you will see, under no circumstances under either of the Graphics or the Metals award could that be considered to be a training day. Certainly there's neither four nor six weeks notice required, none of the content, there's not a registered trainer who is carrying out, it's essentially for political edification of delegates. So there is no sensible basis upon which that could be said to be training. As a result of that the management came back and advised the delegates that they could attend but they wouldn't be paid. Again, under the EBA there is only a requirement to pay a delegate to attend something that involves the parties to the EBA. I can take you, Commissioner, to that clause if it becomes necessary later.

PN18

Notwithstanding that, the AMWU delegates went. They came back and asked to be paid and advised they wouldn't be paid and this morning there was a shop meeting of the combined unions, including the NUW, who didn't send a delegate, and there was a resolution passed that all people on site would cease work until such time as delegates were agreed to be paid or there is an order of this Commission requiring them to return to work and I accept that I may not be completely right with that, but the words I was told is, unless they're ordered to come back by the Commission otherwise, and I'm happy to be corrected on that. That's certainly what my instructions are.

PN19

On any view, with the present EBA, that's unprotected and not legitimate industrial action. At any time the union are in a capacity to come to the Commission, just like we have done in the past, and say to the Commission we bring an urgent section 99, we're not going to be paid for this, can we get a recommendation. Or they could have come along and said we want a 170LW, a determination based on this. They could have done any of those things, but instead they've taken up - a day's production has gone. They're still sitting outside, both the 12 hour shift and how the afternoon shift are not working. The cost is over $100,000 in lost production and will grow, and there is no sensible basis within the dispute resolution proceedings that this couldn't be worked out in the normal way. But instead, they are losing time.

PN20

Commissioner, this is the third time in the last two years we have had applications of this type. We had a 127 which we had to go to the Federal Court to enforce, and it was eventually enforced on undertakings in the Federal Court. Last time we had recommendations, we went through a lengthy process with Commissioner Hingley over the robotics. Once again, there was three to four weeks of bans on. Contrary to the recommendation, Commissioner Hingley's ban stayed, and as a result of that we got a 127 order. So we have no great confidence in doing something like coming along and seeking a recommendation because the history tells us they will not be complied with, Commissioner. That's why we filed the 127 today, rather than the section 99, to try and get a quick, sensible resolution.

PN21

If the organiser today came along and said, on behalf of the combined shop, I will give an undertaking that we will take no more industrial action on this matter for the life of the EBA and that I'm happy to go then into a conciliation, and if that doesn't work, into an arbitration as to the meaning of the awards and the EBA as to whether this was training. Our side would consider immediately that process, and we would actually encourage that and we seek your assistance. But we need some certainty by the end of today and as soon as possible, and I'm not pre-empting, Commissioner. We need some certainty to be sure, not only will they be back at work, but they will stay back at work on this issue.

PN22

We're only now two to three weeks away from the commencement of the EBA negotiations that are required under the EBA and that expires on 30 June. So there's a lot of building up happening at this moment and we're trying to maintain a cool head and move towards that process sensibly. So we encourage the Commission to assist, if assistance can be gained, but if not, we would seek an order.

PN23

THE COMMISSIONER: Mr Hale?

PN24

MR HALE: Yes, Commissioner. Well, first of all there is a need for a correction in relation to what Mr Douglas has had to say in that he said that he would stand corrected if it wasn't right, that they'd been informed that people would only return to work if there was an order of the Commission. We say that that isn't right and that isn't what they've been informed. Now, in relation to the dispute itself, the underlying reason for the dispute, as Mr Douglas pointed out, there was a flyer, D1, which sets out that there was an AMWU training session, meeting, information contact, whatever you wish to call it, that was to be held between 9 and 3 pm on Wednesday, March 8.

PN25

Now, it wasn't as though this was only affecting the delegates of Visy. It was across the industry and it was a meeting of all shop stewards and consequently it wasn't that the meeting could be changed or varied to accommodate Visy's wishes. Now, we say that there were two areas of the agreement, and I don't know whether the Commission has got a copy of the agreement.

PN26

THE COMMISSIONER: I don't think so, but anyway, it's only - - -

PN27

MR HALE: Possibly if I read it out and if Mr Douglas is telling me I'm reading from the wrong document, then we might need to produce it. If I just read the part in relation to 9, Trade Union Training, it says:

PN28

With prior written notice from the unions an accredited delegate will be given approval by management to attend five days' trade union training per annum without loss of pay. The training will be approved by Trade Union Training Australia or the Union and consistent with the support with and support of the legitimate role of union delegates.

PN29

We say that that flyer, D1, satisfies all of those requirements. It's written notice. It's approved by the union and it's consistent with the support and support of the legitimate role of union delegates. It's not that they were taking time off to go to the pub or something like that and calling it training. They were going to legitimate union business. Then it says:

PN30

If due to operational requirements a delegate is unable to be released for an approved designated course, management will endeavour to facilitate attendance at an agreed alternate time.

PN31

Now, management aren't saying that that was the circumstance. Even Mr Douglas' submissions here today, it wasn't saying that the delegates were unable to be released. What he was saying is they were told that if they were to attend, they wouldn't be paid. So that is, we say, in contravention of clause 9 of the agreement. However, if you are mindful to listen to Mr Douglas' arguments that this isn't training, you then go on to clause 10, Union Representation, and clause 10(d) says:

PN32

Shop stewards and elected occupational and safety representatives shall not incur a reduction in ordinary time rates of pay for attending meetings with their union or hearings of the Australian Industrial Relations Commission that involve the parties to this agreement.

PN33

So they were certainly attending a meeting of their union.

PN34

THE COMMISSIONER: In relation to something of the Commission?

PN35

MR HALE: No, that isn't what it says. What it says - - -

PN36

THE COMMISSIONER: What's it say?

PN37

MR HALE: "With their union or hearings." It doesn't say "for hearings". It says, "for attending meetings with their union or hearings of the Australian Industrial Relations Commission." It appears that at least our member at the bar table has a copy to give you, if not me personally.

PN38

THE COMMISSIONER: Good.

PN39

MR HALE: So that part there is clause 10(d).

PN40

THE COMMISSIONER: Well, what about, it says "that involve the parties to the agreement"?

PN41

MR HALE: That's in relation to the Australian Industrial Relations Commission.

PN42

THE COMMISSIONER: Is it? There's no comma.

PN43

MR HALE: No, but it says the union - "with meetings of the union or" - - -

PN44

THE COMMISSIONER:

PN45

Meetings with their union or hearings of the Industrial Relations Commission that involve the parties to this agreement.

PN46

MR HALE: We say that because of the fact that it comes immediately after the hearings of the Australian Industrial Relations Commission, that it's referring to the Industrial Relations Commission hearings that involve parties to the agreement in that they couldn't get time off to come and attend - - -

PN47

THE COMMISSIONER: The only time the union wants to have a meeting with the delegates, they can go, paid?

PN48

MR HALE: That's what the agreement says.

PN49

THE COMMISSIONER: And there's no limit on that?

PN50

MR HALE: Well, that's what the agreement says.

PN51

THE COMMISSIONER: The union wants them every day for a meeting at head office, then they go in and they get paid, is that what it says? Is that what the intent is?

PN52

MR HALE: Well, it's certainly not the intent but it probably is what it says, and I mean, the union has not used it in such a manner. It's not as though Visy has been somehow singled out. It's been completely across the industry and Visy have told people that they wouldn't be paid and we say that's in contravention of the agreement.

PN53

THE COMMISSIONER: Yes.

PN54

MR HALE: Now, they didn't attempt to invoke the settlement of disputes procedure. All they did was withheld people's, we say, lawful entitlement to payment for that period of time. So for them to come in here and say that the members out there have caused an unlawful dispute, what we're saying is it was their actions of not paying people their entitlements that have caused - and what's currently happening is that people are sitting in the canteen waiting to hear what the result of the company's deliberations as to whether those delegates should be paid or not.

PN55

THE COMMISSIONER: How do you say that it's protected action?

PN56

MR HALE: Well, we're not saying it's protected action. What we're saying is that it doesn't necessarily mean that it's illegitimate action and that it's the actions of the company that have been illegitimate on this occasion. We would support going into conference and attempting to resolve the matter and if the Commission feels that that has any merit.

PN57

THE COMMISSIONER: You see, the application that's before me at the moment indicates under 127 that if it appears to the Commission that industrial action was happening, and it would appear from your own submission that it's happening, the Commission may, by order, give directions that it stop.

PN58

MR HALE: Yes, and that's made and some of the considerations that the case we would say that the Commission should take into account is whether that industrial action is illegitimate industrial action, and what we're saying on this occasion is that it's not illegitimate action, that it was the action of the company refusing to pay people their entitlements under the agreement that's precipitated the action that is being taken.

PN59

THE COMMISSIONER: All right.

PN60

MR HALE: Thank you, Commissioner.

PN61

THE COMMISSIONER: Ms Allison, did you have something to add?

PN62

MS ALLISON: Yes, just briefly, Commissioner. Commissioner, we would support that you should reject the 127 application, Commissioner. As you are aware an application under section 127 is an application that the Commission should treat very seriously - Commissioner, I'd quote briefly from the famous Coal v Allied case:

PN63

The exercise of the discretion is a serious step in the sense that it involves both a finding that relevant industrial action is or will be illegitimate and a determination that a continuation of commencement of it should be unlawful as a contravention of the Act.

PN64

So we just say that in terms that it is obviously a very serious application and the Commission needs to think seriously before exercising its discretion. Why we say the Commission should reject the application is because the company doesn't come to the Commission with clean hands in regards to this. Commissioner, we would more focus. We say the important clause is in face clause 9 which is the Trade Union Training clause and you will see there that this clause isn't ambiguous at all:

PN65

With prior written notice from the unions an accredited delegate will be given approval by management to attend five days' trade union training per annum without loss of pay.

PN66

Now, the training will be approved by the Trade Union Training Australia or the union, and consistent with and supportive of the legitimate role of the union delegates. Commissioner, obviously this relates to AMWU delegates and their AMWU delegates' meeting, but you will see on their flyer that this is considered training and it is specifically to give delegates information about how they can train their employees and interact with management under the new legislation. So we say that it comes under that clause, there can be no doubt about it and it's not ambiguous at all. They were not paid despite this clause.

PN67

Commissioner, what the NUW submits is that let's deal with the fundamental issue here. The fundamental issue, as the company has also pointed out, has got to do with delegates and whether they should have been paid for going to training. We say there's no reason why we can't sort that out today and if we can sort it out today, the unions, my understanding, would certainly not be uncomfortable providing undertakings that Mr Douglas referred to. So, Commissioner, we believe the most fruitful approach would be to go into conciliation and let's resolve the fundamental issue here.

PN68

THE COMMISSIONER: All right. Mr Douglas?

PN69

MR DOUGLAS: Commissioner, of course you understand, Commissioner, I don't accept that, but I think it's almost unacceptable. I've been around a while and I've seen a lot of trade union training on exactly this issue. There is AMWU training which sets out everything you would expect, I have a copy of that and I think you've seen it, that is the AMWU Special Training, which sets out all the details for training exactly as you'd expect training to be. This is effectively a political rally that's building up to the next National Day of Action. This is not training in the sense that trade unions carry out, and they specify the exact content of it, the exact times and it's clearly organised training, and the flyer itself doesn't really pretend to be training. So it doesn't fall under clause 9 and, as you say, Commissioner, under clause 11, it's when both parties are involved, there's a reason why delegates get paid. It's not when there's just delegates meeting.

PN70

Commissioner, I will just pass this up just to show you an example of what you get from the AMWU when they are doing training, and this is on exactly the same issue. So am I to assume now what's being said is no one will be going to specific training, because they've been to the rally?

EXHIBIT #D2 AMWU LETTER DATED 07/03/2006

PN71

MR DOUGLAS: Thanks, Commissioner. If I could just say, Commissioner, about the illegitimate part of the action. I could understand if the delegates hadn't been told in advance they weren't being paid, and after everyone went, we just didn't pay them. They could say well, look, that's hardly fair, but they were told in advance. There was an opportunity for them to do something about it. But in any event, the action taken by the union is extreme concerned with the non payment of delegates, three delegates, for the business to lose the money they've lost and continue to lose. If the Commission pleases.

PN72

THE COMMISSIONER: All right. Look, there as a somewhat veiled suggestion from the bar table that I indicated at the outset that there may be some advantages in us going to conciliation to see if there is some way that we might be able to get a satisfactory resolution of the difficulties that we've got in front of us at the minute. It is a significant issue when people are on strike. I intend to adjourn these proceedings into a conference. We're not going to take all day about this. It needs to be dealt with efficiently. If we're unsuccessful in getting a resolution of the matter through that process, I'll come back on the record and I'll hear final submissions in relation to the application that I've got in front of me and I'll deal with it. The Commission will adjourn into conference.

<SHORT ADJOURNMENT [4.39PM]
<RESUMED [5.40PM]

PN73

THE COMMISSIONER: I have been involved in discussions with the parties in relation to the application before the Commission made pursuant to section 127(2) of the Act by Visy Cartons Pty Ltd. Without going into the details of that dispute, discussions have resulted in what I believe is an agreement which will lead to a resumption of work at the premises of Visy Cartons at their Broadmeadows site and provide a way forward in resolving the issues between the parties.

PN74

My understanding is that into the future, Visy Cartons Pty Ltd will agree to honour existing arrangements in relation to regional meetings that have been conducted by the AMWU involving their delegates. This is an agreement that has been in place for some time and it will continue. In addition, during the course of the proceedings, the Commission became aware of the two day briefing that was being organised by the AMWU for their delegates to be conducted on 16 and 17 May of this year at the AMWU office. The company will again agree to the delegates, as requested, attending those two briefing meetings and to be paid for their attendance at those meetings.

PN75

For their part, the union parties to this matter, the AMWU and the National Union of Workers, will agree to the Commission arbitrating the question that has been before the Commission to day in these proceedings, which relates specifically to the payment or the non payment of a number of delegates who attended a Melbourne delegates' forum conducted by the AMWU on 8 March of this year. The current dispute revolves around the non payment of those delegates who attended that meeting.

PN76

It has been agreed and tentatively has been arranged that on Monday, 10 April at 10 am the Commission will take submissions from the parties and will determine the issue. The parties have both agreed in conference before the Commission that they will accept the outcome of that arbitration, be it pursuant to section 170LW of the Act or section 111AAA. The agreement is that the Commission will arbitrate the matter.

PN77

On the basis that this agreement is accepted, my understanding is that the union representatives present in these proceedings will advise their members to resume work forthwith and I trust that that would be conveyed to the members who, as I understand it, are currently on strike. That's my understanding of the agreement that was brokered between the parties. Can I ask you first, Mr Douglas, if that concurs with what you understood?

PN78

MR DOUGLAS: Commissioner, 95 per cent. The only five per cent I'd say is, as a result of us agreeing to the determination by you, Commissioner, there will be no further industrial action by the unions in respect of this issue.

PN79

THE COMMISSIONER: I should have added that element and that was my understanding as well, Mr Douglas.

PN80

MR DOUGLAS: But otherwise I concur completely.

PN81

THE COMMISSIONER: Thank you. Mr Hale?

PN82

MR HALE: Yes, that's my understanding of the discussions that took place today.

PN83

THE COMMISSIONER: Good, thank you. Ms Allison?

PN84

MS ALLISON: Commissioner, I'd just clarify. You said in relation to the undertakings going forward from the company in respect to trade union training. It was only made in relation to AMWU. We would also expect that the usual arrangements for NUW training would go ahead as well.

PN85

THE COMMISSIONER: My understanding is that there are current arrangements in place for the attendance of delegates or other members of the union at appropriate training, that those arrangements would continue in place.

PN86

MS ALLISON: Yes, and on that basis we also agree.

PN87

THE COMMISSIONER: All right, and I trust they haven't tripped you up there, Mr Douglas?

PN88

MR DOUGLAS: The only thing is, I'm uninformed and I think all of us are uninformed as to what those arrangements and I'm sure that's one of the matters that Ms Allison will speak to tomorrow so that we can have some clarity. But otherwise, I forgot to say, I'm actually instructed to agree to that, so that helps.

PN89

THE COMMISSIONER: Good, thank you. Well, on the basis of that undertaking by both parties, I certainly would expect that the industrial action would cease. The Commission will deal with the issues that have been placed before it today and will issue a decision once it's heard submissions expeditiously. The Commission adjourns on that basis.

<ADJOURNED INDEFINITELY [5.46PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #D1 WRITTEN ADVICE RE AMWU DELEGATES' FORUM PN16
EXHIBIT #D2 AMWU LETTER DATED 07/03/2006 PN70