C2007/2878, Transcript of Proceedings [2007] AIRCTrans 397 (14 August 2007)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 17251-1

COMMISSIONER FOGGO

C2007/2878

s.170LW - prereform Act - Appl’n for settlement of dispute (certified agreement)
Transfield Services (Australia) Pty Ltd
and
United Firefighters’ Union of Australia
(C2007/2878)

s.170LW - prereform Act - Appl’n for settlement of dispute (certified agreement)
United Firefighters’ Union of Australia
and
Transfield Services Australia Pty Ltd
(C2007/2933)

MELBOURNE

3.06PM, MONDAY, 23 JULY 2007

Continued from 17/7/2007

PN1

THE COMMISSIONER: Since the last occasion there has been a subsequent file, application lodged, I beg your pardon, as foreshadowed by Mr Bromberg. I'm going to hear that concurrently with the original file for today's purposes. Are there any changes in appearances?

PN2

MR LAST: No, Commissioner.

PN3

THE COMMISSIONER: Thank you.

PN4

MR T CLARKE: I seek leave - I'm from Slater & Gordon. Sorry, Mr Marshall was just mentioning that Mr Bromberg wasn't available today, nor was Mr Hahn, so I've sort of come into this at the last minute - - -

PN5

THE COMMISSIONER: I see, and - - -

PN6

MR CLARKE: - - - they may be available down the track.

PN7

THE COMMISSIONER: - - - Mr Marshall is going to appear today as well?

PN8

MR CLARKE: With me is Mr Marshall and Mr Baulman from the union, yes.

PN9

THE COMMISSIONER: Yes. Is there anything in relation to leave? I'm minded to grant leave for the purposes of today's hearing.

PN10

MR LAST: Yes, I'm okay with that, Commissioner.

PN11

THE COMMISSIONER: Yes, leave is granted, Mr Clarke. Mr Last, I'm going to hear a report back from the original matter. Who is going to do that?

PN12

MR LAST: Well, I'll undertake to update the Commission if you like, Commissioner.

PN13

THE COMMISSIONER: Yes, if you would please.

PN14

MR LAST: Thanks, Commissioner. On the previous occasion we spent some time in conference before you and we left with a clear understanding that as soon as was possible Transfield Services would expedite the correspondence that the UFU had been seeking through their legal representatives, Slater & Gordon, and Mr Clarke is here today. So, what I'm able to report to you, Commissioner, is that, on Friday we were able to send out the correspondence that was released for perusal by Slater & Gordon to Mr Clarke, it was addressed to Mr Clarke. I understand from a phone call that I had from Mr Clarke this morning that, he has it, it's obviously been a very short while for the union to be able to come to grips with what's contained in that documentation, however, they do have it.

PN15

I'd like to hand up to you, Commissioner, a copy of the correspondence that we sent to the union, at least with the covering letter. As it stands today, Commissioner, not all of the information that the UFU sought to gain by way of this process has been agreed to by the Defence Department. I can say that, in a nutshell that the material that Mr Clarke has got before him is the material that relates to the current contract, the new T2 contract and without trawling into the whys and wherefores, the Defence Department have not seen fit nor proper to release the T1 material. So, we've passed on whatever we were able to in relation to that documentation and we have sought to clarify also to the union the position in relation to the queries that were raised by Mr Bromberg around the chemical, biological and radiation incidents and what is expected of the fire fighters in relation to that particular setting in this contract. If the Commission, pleases.

PN16

THE COMMISSIONER: Yes.

EXHIBIT #TRANSFIELD 1 LETTER DATED 23/07/2007

PN17

THE COMMISSIONER: Do I take it, in relation to the second last paragraph on page 2 that, Transfield believes that fire fighters are currently trained to the level which is required to carry out the work that is in the T2 contract?

PN18

MR LAST: Commissioner, I may get Mr Collins to address you on that.

PN19

THE COMMISSIONER: Yes.

PN20

MR COLLINS: Commissioner, the current fire fighters that we have are trained in accordance with the Australian Fire Council's modules of training. They have not yet migrated over to the public safety system, but in neither of those two systems is the issue of CBR addressed. I've spoken with a member from FESA in Western Australia and in Western Australia they've come up with, or they're in the process of developing a CBR package ahead of what the AFC or the public safety system is doing, but that's not ready for release to us at this point in time and with the MFB, they have a package that's similar, but of a shorter duration, but at this stage we have not adopted or seen those training packages.

PN21

But given that there are additional training requirements that have been identified by those two organisations, then the public safety system and the AFC systems do not currently address the CBR issues adequately.

PN22

THE COMMISSIONER: Do not. In light of our discussions at the conference, you have given it some thought I'm sure, in terms of what might be some alternatives from here on?

PN23

MR COLLINS: We'd certainly like to see what the MFB are doing with their training package. They run a 16 hour, I believe, training package to all of their members that may attend to a CBR incident. I haven't had any feedback yet from the CFA as to what they're doing, or where they intend to go with the training. But it's my understanding that, in due course the AFC system, or more importantly the public safety system, will catch up with this issue and it will become a requirement for all fire fighters to do, or have that training available to them.

PN24

THE COMMISSIONER: Yes. All right, thank you. Whose going to report from the union?

PN25

MR CLARKE: Just in relation to, I can really only report in relation to the document that was received, Commissioner. It actually was dated 20 July when it came to me today and it's addressed to, as you see, Mr Marshall and addressed to myself. But there are some omissions from - - -

PN26

THE COMMISSIONER: What's that - what relevance does that have?

PN27

MR CLARKE: It was put to you that it was addressed to me. But just in relation to that document, I concur with what's said by my friend in relation to that, that there are some matters that are not contained in the documents which were annexed to the covering letter which is disappointing and does make things a little difficult for us, Commissioner. When we first wrote to Transfield the day after the meeting of a ..... officials and delegates occurred on the premises. Following that meeting a letter was written requesting material of this nature and in the correspondence that followed and in the discussion I had with the Transfield representatives at their premises on 3 July, it was made clear that the union needed to be able to assess the voracity of Transfield's claim that, you know, "It's this new contract that is making us do this".

PN28

To that extent the exercise is a comparative one, it involves looking at the requirements under the current contract and also under the existing one and it was noted at that meeting on 3 July that that existing contract had in fact undergone some variations during its terms which were relevant to the issues that the union was interested in being - staffing levels. I have difficulty seeing how a contract that is, from my friend's point of view, essentially redundant, not trying to use that word for any kind of a joke, but how that contract can be still maintained to be commercially confident, at least in relation to how it deals with manning levels.

PN29

You may well know that the Victorian government for interest, releases all these sorts of tendering documents and once the public tender process is closed and a contract has been nominated - - -

PN30

THE COMMISSIONER: Well, I don't think we're going to have discussions here about the relative policies of the Department of Defence as against the state government.

PN31

MR CLARKE: No, I'm just raising this for exactly as you say about the discussions that we should be having here, because I mean, if renewed efforts were made to get that from Defence, otherwise it's a procedure for us to try and obtain a summons which will be objected to, which will go to hearing, or alternatively we allege there's been a breach of the certified agreement and get preliminary discovery and the Federal Court. It gets expensive, it gets long and drawn out and it's not necessarily the most effective way of trying to resolve really what is a dispute on the merits of about how the agreement applies to this particular situation, which, you know, the Commission should be able to deal with.

PN32

Also, in the documents that were provided previously, there was reference to documents which were not part of the contract, but which were said to be, and this is in the letter dated 31May provided by Transfield, said to be the - relevant to the issues of manning which was a document called, "Australian Air Force 4230.001" and another document called, "Defence instructions Air Force operations 6-9" which was said to be relevant to manning. They're, as I understand it, not part of the contract, but nonetheless, yet to be provided. And in relation to the material that was provided, insofar as it deals with CBR, it doesn't appear to be a contract document, although I may be corrected in relation to that, but it again refers to attachments which aren't there.

PN33

So, just for the sake of completeness, I haven't had an opportunity to go through what has been provided in any great level of detail, but I'd prefer to do it all in one, get some instructions on it from all of the officers of the union who have knowledge in these matters and then come back with a more sort of comprehensive understanding in order that our discussions before you could reach their - reach for ..... sooner.

PN34

THE COMMISSIONER: Are there any issues that come out of the union's application which are not already covered in the application which has been made by Transfield?

PN35

MR CLARKE: The section 170LW application made by the union has - does have a focus which is a little different to that of Transfield. As I understand it, Transfield's coming to the Commission to say, "We have obligations under the agreement to consult and we feel that that's not happening as it should, so can you please help us". Whereas, the union has a dispute about the application of the agreement insofar as it regulates changes to the terms and conditions of employment during the agreement's life. So, the aspects of argument, or the issues in argument, are different. I mean, there may be some overlap, but I think the union's application is probably broader and relates to, rather than the examination of the facts about what's happened during a consultative process, relates to the change in detail and whether it meets the definition of the things that are supposed not to occur during the life of the agreement.

PN36

THE COMMISSIONER: Yes, all right, thank you. I think it might be useful if we moved into conference to discuss some of these issues.

<NO FURTHER PROCEEDINGS RECORDED

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #TRANSFIELD 1 LETTER DATED 23/07/2007 PN16