C2007/2615, Transcript of Proceedings [2007] AIRCTrans 178 (12 April 2007)

TRANSCRIPT OF PROCEEDINGS

---

Workplace Relations Act 1996 16704-1

COMMISSIONER GAY

C2007/2615

TOYOTA MOTOR CORPORATION AUSTRALIA
AND
AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA
s.496(1) - Appl’n for order against industrial action (federal system).
(C2007/2615)

MELBOURNE

5.21PM, WEDNESDAY, 28 MARCH 2007

Hearing continuing

PN1

MR H SKENE: I seek leave to appear on behalf of the applicant, Toyota Motor Corporation Australia Ltd.

PN2

MR M GEORGIOU: I appear with MR A SACHINIDIS and MR J COMALDO for the Vehicle Division of the AMWU.

PN3

MR J WIELADEK: I appear for AMWU.

PN4

MR G BORENSTEIN: I appear for the ETU and alongside me is
MR G ARNETT from the ETU.

PN5

THE COMMISSIONER: Yes. Do any of the union advocates wish to say something about the application for leave? Leave is granted, Mr Skene.

PN6

MR SKENE: Thank you, Commissioner. This matter concerns an application under section 496 of the Act for orders directing that industrial action that is to occur tomorrow morning at 7 am at Toyota's Altona site stop or not occur. The application includes some fairly detailed grounds, Commissioner. Perhaps I should say at the outset that the application was served on the state offices by hand shortly after 4 o'clock and by facsimile in accordance with the order of substituted service over the course of the afternoon and I take that's not an issue given the appearance of my friend but - - -

PN7

MR GEORGIOU: Commissioner, I have no, other than the notification that this matter is on, I have absolutely no paperwork whatsoever and I left the national office of the AMWU and at about 25 to five, so I was advised by my colleagues when I came here that orders were being sought that I have no paperwork whatsoever.

PN8

MR SKENE: Well, I will assist my friend and provide him with a copy of the application.

PN9

THE COMMISSIONER: Yes.

PN10

MR BORENSTEIN: I might just add, Commissioner, that the application was addressed and faxed to the old ETU offices in Swanston Street rather than the new office in Arden Street, North Melbourne. So my first look at the application was about five minutes ago.

PN11

THE COMMISSIONER: Yes.

PN12

MR SKENE: Well, the application was filed by facsimile and at the same time sent to all unions at 2.21 this afternoon. It was sent by email at 2.43 to 2.49 to all unions at their email addresses, the email addresses for the state secretary and the Victorian state security of the AMWU and the national secretary and the southern states branch secretary of the CEPU. It was served by hand to the Victorian state office of the AMWU at 4.05 pm and it was served by hand at the CEPU southern states branch office at 4.38 pm and there were various faxes sent between 4.04 and 4.41 to the various fax addresses.

PN13

THE COMMISSIONER: When was the email, the order sent by email to the AMWU, perhaps at various of its offices?

PN14

MR SKENE: The application was initially sent by facsimile at 2.21 to the national office, at 22.26 to the Victorian state secretary's fax number of the AMWU, at 2.23 pm to the CEPU national secretary and at 2.29 pm to the southern states branch secretary.

PN15

THE COMMISSIONER: They're all faxes?

PN16

MR SKENE: They're all faxes. Emails were sent at the same list in order if you like, the national secretary of the AMWU at 2.43 pm, the Victorian state
secretary - - -

PN17

THE COMMISSIONER: Just a moment, I'm sorry.

PN18

MR SKENE: Sorry.

PN19

THE COMMISSIONER: National AMWU, yes. Now you're talking about these are the emails, yes?

PN20

MR SKENE: These are the emails.

PN21

THE COMMISSIONER: Thank you.

PN22

MR SKENE: And the Victorian state secretary of the AMWU at 2.46 pm.

PN23

THE COMMISSIONER: 2.46. And what was the national office of the AMWU email?

PN24

MR SKENE: 2.43.

PN25

THE COMMISSIONER: 2.43, thank you. And the CEPU national secretary?

PN26

MR SKENE: The CEPU national, 2.49.

PN27

THE COMMISSIONER: Yes.

PN28

MR SKENE: And CEPU southern states branch, 2.47.

PN29

THE COMMISSIONER: Yes.

PN30

MR SKENE: Service by hand was conducted to the two state offices in Victoria perhaps out of an abundance of caution to the Victorian state secretary, addressed to the Victorian state secretary of the AMWU at 4.05 pm and to the southern states branch secretary of the CEPU at 4.38 pm.

PN31

THE COMMISSIONER: Yes. Just a moment. Yes, Mr Georgiou.

PN32

MR GEORGIOU: Commissioner, I don't mean to be cute about it, but in the signatory pages of the workplace agreement the company and the union all have the various divisions of the union listed and signed for and you will note - well ,I can show the Commission, I don't have copies. We received a facsimile communication from Freehills at 15.03 and it didn't arrive at our office at that time because it's addressed to Mr Ian Jones, AMWU Vehicle Division and then it has a facsimile number. I haven't been there long enough to know all the numbers but I know that that isn't the facsimile number that appears in the vehicle division of the national office.

PN33

In the notification from your office, Commissioner, dated today the time is 5.05 which I presume is not taking into account daylight savings on the machine. That's not a fault of your office of the fax. It goes to Mr Doug Cameron and
Mr Dave Oliver, both of whom obviously are AMWU officials, but no notification came through to the vehicle division and as I said, this document that has just been handed to me, application for an order to stop or prevent industrial action, I have only just received it. I have no instructions on it. I have no knowledge of it and I don't know that we've been served correctly given that the agreement does recognise and Toyota do recognise the various divisions.

PN34

I also note that the TSA division which also signs the agreement separately hasn't been notified. I don't make a lot of that. I don't want to drag them into this as well. So I'd ask for an adjournment, Commissioner, on the basis that I haven't had any opportunity to receive instructions. I haven't even had an opportunity to properly read the material and I don't think we've been served. Either the company recognises when it seeks signatures for its agreements that there are separate divisions of the union, albeit that we're one big happy family, but we do occasionally have subdivisions and we haven't been served, Commissioner.

PN35

THE COMMISSIONER: Yes, thanks, Mr Georgiou.

PN36

MR SKENE: Mr Georgiou, perhaps as he's unaware of the application, he's unaware of the order of substituted service that was made in this matter that puts any questions about service to bed and requires on terms of service on
Mr Georgiou's organisation and on the CEPU that service be conducted in accordance with rule 72(2(e) of the Commission rules which permit service by facsimile and the facsimile transmissions that my friend has referred to constitute good service upon his organisation. In any event, I would say that in light of the various efforts that have been taken to notify the unions through their relevant acting bodies, being the state secretary's office and the national secretary's office that is how these unions.

PN37

There is no doubt that the application has been properly brought to their attention and that they should be in a position to deal with it. I should say in relation to
Mr Georgiou's application for an adjournment that it's plainly opposed. The application concerns a notice issued this afternoon by Ian Jones, the division secretary of Mr Georgiou's division. Mr Jones at the time he provided this application to Toyota was told that this application would be filed and indeed that's what happened and there can be little doubt that the various steps that have been taken are properly drawn to the attention of the union and in accordance with the order of substituted service that's been made proper service has been given in any event.

PN38

THE COMMISSIONER: Mr Skene, who was it who told Mr Jones about that the order - the application was to be made for an order and when was that?

PN39

MR SKENE: Heather Box.

PN40

THE COMMISSIONER: I beg your pardon?

PN41

MR SKENE: Heather Box at approximately 20 past one this afternoon.

PN42

THE COMMISSIONER: All right. Mr Skene, perhaps I'll allow you to resume your seat. Mr Georgiou, have you had a chance to read the application?

PN43

MR GEORGIOU: No.

PN44

THE COMMISSIONER: All right. You've asked for an adjournment but you've not mentioned for how long you'd like the adjournment to be.

PN45

MR GEORGIOU: I'd like it till 10 o'clock tomorrow morning, Commissioner, where I can also be instructed. I've left messages for Mr Jones. Ms Box may or may not have said what she said to Mr Jones. I'm not in any position to say whether it was maybe a bit of banter between the two or trying to perhaps intimidate or threaten Mr Jones so that he could withdraw his notice. I don' t know in what vein that conversation took place. I have tried to contact Mr Jones. He has - sorry, he hasn't, Mr Sachinidis told me to front up here at 5 o'clock because he heard there was a hearing on and he had another commitment. I just don't have any instructions. I don't know how I can defend something that hasn't been properly served.

PN46

I don't think someone having a conversation about something and not giving them the depth of the orders that they seek and the seriousness of them can expect us to defend the orders that are sought. I have up until the time we came into this hearing been trying to contact Mr Jones and Mr Smith, the assistant national secretary of the vehicle division, without any success.

PN47

THE COMMISSIONER: Mr Skene, I'm inclined to adjourn now for a period that I'll decide in order to allow Mr Georgiou to have time to read the application. Have you a copy there of the order for substituted service? If you haven't I'll have my associate give him a copy of the order for substituted service. Was that sent to the union?

PN48

MR SKENE: I understand that it's been faxed through to your office.

PN49

THE COMMISSIONER: All right.

PN50

MR SKENE: And emailed.

PN51

THE COMMISSIONER: Do you now have a copy of the application? Look,
Mr Borenstein indicates he has not got a copy. Is that right, Mr Borenstein?

PN52

MR BORENSTEIN: I'm borrowing the AMWUs copy at the moment but yes, I don't have a copy.

PN53

THE COMMISSIONER: All right.

PN54

MR GEORGIOU: Commissioner, I still think that this order may have been given in error because if you look at the workplace agreement the workplace agreement recognises the three - - -

PN55

THE COMMISSIONER: I'm aware of that, Mr Georgiou. I'm also aware of the rules of the AMWU but I'm happy to be addressed on that if you'd like to address me after you've had a chance to look at the order for substituted service and I’m going to adjourn for 30 minutes to give you a chance to look at the order for substituted service and also peruse the application. Mr Skene, have you got copies there you'll be able to give the unions?

PN56

MR SKENE: Yes, Commissioner, of both matters.

PN57

THE COMMISSIONER: All right. Now, in 30 minutes I'll ask my associate to speak with you to see whether you've had sufficient time to read it. It may be you will want to make a further submission in relation to the adequacy of the time to consider the application and I'll hear that then. But you will have had a chance, I think that will give you an ample to read the application and to see the order for substituted service and it may be also that will give you sufficient time to, if you want to make contact with Mr Jones. Have you got all his numbers, I assume you have?

PN58

MR GEORGIOU: I have a mobile phone number.

PN59

THE COMMISSIONER: Yes, all right. All right. Now, Mr Borenstein, is there something else that you wanted to say, I don't know, just prior to the adjournment for 30 minutes?

PN60

MR BORENSTEIN: No, no, Commissioner.

PN61

THE COMMISSIONER: All right. We'll adjourn now for 30 minutes.

<SHORT ADJOURNMENT [5.35PM]
<RESUMED [12.14AM]

PN62

THE COMMISSIONER: Well, the time on the transcript this morning would indicate the extent of the time that has been spent in a series of conferences, and I say that in the middle of this difficult situation the parties have made a very earnest effort to come to a proper accommodation, and this is one of those occasions where despite those efforts it hasn't been successful. Yes, Mr Skene?

PN63

MR SKENE: Commissioner, I must say I don't recall exactly where I was at when we last went off the record, but in terms of how we proceed we're going to call some limited evidence from Mr Millan to prove the facts listed in the detailed grounds of the application. The purpose of that is to enable you to be satisfied that the jurisdictional requirement for the making of the order is met, and specifically that industrial action at the Altona site is pending or probable. Once satisfied of that, as you're well aware, the Act mandates that an order must be issued.

PN64

Perhaps once I've led the evidence from Mr Millan and my friends have had a chance to close that evidence then we can address the form of the order because there's some things that need to be said about that in light of the conference.

PN65

THE COMMISSIONER: Yes, thank you.

PN66

MR SKENE: I call Travis Millan.

<TRAVIS ASHLEY MILLAN, SWORN [12.16AM]
<EXAMINATION-IN-CHIEF BY MR SKENE

PN67

MR SKENE: Would you please state your name, address and occupation for the record?---Travis Ashley Millan (address supplied) occupation senior employee relations advisor, Toyota.

PN68

Have you seen a copy of the application filed by Toyota in these proceedings?
---Yes, I have.

PN69

Have you had a chance to read paragraphs 1 through to 34 of that application?
---Yes, I have.

PN70

Can you confirm that those paragraphs are true and correct?---I confirm that they are true and correct.

PN71

If I can just ask you to turn to the notice attached to the application, the last page?
---Yes.

PN72

Who or what is the FVIU?---The FVIU is the peak body representing unions who are associated with automotive manufacturers.

PN73

And relevant to today's application which unions does that include?---The AMWU and the ETU.

PN74

The notice states that it's made to all union members. Do you see that?---Yes.

PN75

Could you describe to the Commission who that is?---That would effectively be all union members on the Toyota Altona site.

PN76

Commissioner, unless you have any further questions that concludes the evidence.

PN77

THE COMMISSIONER: Yes, thank you. Mr Borenstein?

PN78

MR BORENSTEIN: Thank you, Commissioner. Because of the short notice of this hearing we are not in a position to cross-examine this witness. We dispute the facts contained in his evidence and reserve all our rights in respect to such.

PN79

THE COMMISSIONER: Yes, thank you, Mr Borenstein.

**** TRAVIS ASHLEY MILLAN XN MR SKENE
PN80

MR GEORGIOU: Yes, I should thank the Commission for that half hour break for me to be able to read the application, it was very much appreciated. Commissioner, on the basis that we did receive this application very very late, and I have not had time to receive proper instructions I'm in no position to cross-examine the witness at all or to provide too much material to rebut the position as put by the company. We reserve our rights with regard to this, and we have nothing further to add with regard to this witness.

PN81

THE COMMISSIONER: Yes, thank you, Mr Georgiou. Yes, Mr Wieladek?

PN82

MR WIELADEK: Likewise, because of the short notice we were unable to prepare questions for this witness, but we make no concession as to the facts that have been led, and we reserve our rights in this matter.

PN83

THE COMMISSIONER: Yes, thanks, Mr Wieladek. Mr Skene?

PN84

MR SKENE: Could the witness be excused, Commissioner?

PN85

THE COMMISSIONER: Thank you for your evidence, Mr Millan, you can step town.

<THE WITNESS WITHDREW [12.20AM]

PN86

THE COMMISSIONER: Yes, Mr Skene?

PN87

MR SKENE: Commissioner, it's submitted that based upon your experience with the parties in conciliation over the last six hours and the evidence that's now before the Commission you can form the requisite satisfaction that industrial action is impending or probable at the Altona site. It's clear that the notice that's been prepared by Mr Jones, who is the chairperson of the body known as the FVIU, has convened a report back meeting of all union members on the site including members of the AMWU and ETU. That's a peak body which the AMWU and the ETU are members.

PN88

The basis of the evidence in the application and on the face of the notice and your experience in conference in my submission you can be satisfied as to jurisdiction. In terms of the order that may issue - - -

PN89

THE COMMISSIONER: Do you say also that in relation to the necessary findings of jurisdictional fact that such action would not be protected action, Mr Skene, do you make that - - -

PN90

MR SKENE: Yes, Commissioner. It's clear that the action is not protected action and it's being taken during the life of a current certified agreement, being the Workplace Agreement Altona 2005. Commissioner, if I could ask you to turn to annexure 1, which is the draft terms of order. Perhaps the easiest way to deal with this is to take you through the proposed amendments that have been achieved as a result of discussions this evening.

PN91

THE COMMISSIONER: Mr Skene, it may assist, I think my associate has recently or otherwise has a working document which might encapsulate some of the things that you are going to put, and it might be useful for the parties to have a copy of that. So we'll be able to test how well she can anticipate submissions.

PN92

MR SKENE: I'm much obliged.

PN93

THE COMMISSIONER: Yes, Mr Skene, I'll give you a chance to read that.

PN94

MR SKENE: Yes, thank you, Commissioner. Commissioner, there is one further proposed amendment that I've just come to, to paragraph 2.1(e). This is the paragraph that defines the scope of the order. It currently reads:

PN95

Employees of Toyota who are members or eligible to be members of the AMWU or CEPU and who perform work at Toyota site at Altona Victoria.

PN96

I'm informed by my friends that the effect of that order may be to capture some people who aren't intended to be captured, and it's proposed to limit the scope of the order to those employees that are covered by the relevant certified agreements. So there are two relevant certified agreements, the Workplace Agreement Altona 2005, and the Workplace Agreement Port Melbourne, Sydney and Surrounds 2005.

PN97

THE COMMISSIONER: Mr Skene, perhaps we'll just go off the record briefly.

<OFF THE RECORD

PN98

THE COMMISSIONER: Yes, Mr Skene?

PN99

MR SKENE: The next - - -

PN100

THE COMMISSIONER: Well, perhaps on the record you might care to deal with that 2.1(e).

PN101

MR SKENE: Yes. So 2.1(e) will read:

PN102

Employees of Toyota who are members or eligible to be members of the AMWU or CEPU, who perform work at Toyota's site at Altona, Victoria and whose employment is regulated by the Workplace Agreement Altona 2005 or the Workplace Agreement Port Melbourne, Sydney and Regions 2005 (Employees).

PN103

The next change or amendment is to clause 3.3. This is a clarification lest it should be thought that positive steps might need to be taken to comply that order. We wish to insert a paragraph at the end of - a sentence rather at the end of paragraph 3.3 to say "This does not require positive steps to be taken."

PN104

THE COMMISSIONER: Yes.

PN105

MR SKENE: I think that's sufficient, Commissioner. I think the order prepared by your associate otherwise reflects what the parties intend to do. Unless you have anything further, Commissioner?

PN106

THE COMMISSIONER: I do want to ask you about how do you say at clause 7, the order coming into effect?

PN107

MR SKENE: Yes, indeed. Our position is that the order should come into effect, I think it should read Thursday 29 March, not Friday. I think the turning of the clock might have got one day in front of us there. So we would say the order shall come into effect at 7 am, which is the normal start time, on Thursday 29 March 2007, and that it should remain in force until 5 pm on Monday 16 April 2007. And that's to enable the investigation that the parties anticipate will occur in the meantime to take place, at least in large part free from industrial action, and the parties to come back before you. I think we would seek to have the matter listed on the morning of 16 April to assess whether or not this interim order should continue and, if so, on what terms?

PN108

THE COMMISSIONER: Yes, thanks, Mr Skene. Yes, Mr Borenstein?

PN109

MR BORENSTEIN: Thank you, Commissioner. For the record we oppose this application, and because of the short notice of this matter we have not been in the position to provide written submissions regarding it or prepare any submissions regarding this matter, but we do oppose it. We reserve our rights in respect of any facts asserted and any submissions made by the applicant. And in respect of the terms of the order, we do oppose that as well, but we make no further submissions regarding it.

PN110

THE COMMISSIONER: Thank you, Mr Borenstein. Yes, Mr Georgiou?

PN111

MR GEORGIOU: Likewise, Commissioner.

PN112

THE COMMISSIONER: Yes. Mr Wieladek?

PN113

MR WIELADEK: Likewise, Commissioner.

PN114

THE COMMISSIONER: Yes, thank you. In this matter it's necessary for the Commission to consider the application made by Toyota in the way that's outlined by Division 6, and I have of course had the benefit of, as the transcript earlier indicates, in fact, a very helpful participation in conferences. I accept Mr Millan's evidence, and having regard to that evidence and essentially the notice that's appended to Toyota's material I am satisfied that the jurisdictional basis which would provide for an order to issue does apply in this instance.

PN115

I have no doubt that there is industrial action threatened, impending and probable, which industrial action would not be protected action, at the Toyota site tomorrow. As a consequence of coming to that view it is necessary that an order issue. The terms of the order will be, of the interim order will be in accordance with the application as finally detailed by Toyota, and it will be available to the parties shortly after I adjourn. And the order will come into effect at 7 am on Thursday 29 March 2007 and continue in force until 5 pm on Monday 16 April 2007.

PN116

I will list the matter for Monday 16 April, and a notice to that effect will issue at some stage tomorrow. The parties are also aware of my request to them to give further consideration to the issues which have been so closely dealt with this evening and in the way that I've outlined just prior to coming back on the record. I do once again want to thank the advocates for their assistance today. I now adjourn till 16 April. Thank you.

<ADJOURNED UNTIL MONDAY 16 APRIL 2007 [12.36PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

TRAVIS ASHLEY MILLAN, SWORN PN66
EXAMINATION-IN-CHIEF BY MR SKENE PN66
THE WITNESS WITHDREW PN85