C2007/3589, Transcript of Proceedings [2007] AIRCTrans 523 (8 October 2007)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 17502-1

SENIOR DEPUTY PRESIDENT WATSON

C2007/3589 C2007/3585

s.496(1) - Appl’n for order against industrial action (federal system).
Meritor Heavy Vehicle Systems Australia Ltd
and
Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union National Union of Workers
(C2007/3589)

MELBOURNE

2.03PM, MONDAY, 24 SEPTEMBER 2007

Hearing continuing

PN1

MR S WOOD: I appear in the matter number 3589 for the applicant Meritor Heavy Vehicle Systems Australia number 3589 and although not named as a party in the first mentioned application I appear for the same mentioned party in the matter.

PN2

MR P BOROBOKAS: I appear for Skilled Group Limited. I am the national group manager of industrial relations and appear with me Commissioner is
MR P DUCKETT executive general manager of Workplace Relations for Skilled Group. Your Honour we're appearing in matter 3585.

PN3

MR B TERZIC: I am appearing in both matters on behalf of the AMWU. I have with me at the bar table MR T HYNDS.

PN4

MR G MAAS: I appear for the National Union of Workers. Appearing with me is MR C LARKIN the relevant organiser of the site. Your Honour I bring your attention that I am only appearing in matter 2007/3589.

PN5

THE SENIOR DEPUTY PRESIDENT: Is there any issue about leave from a
Mr Wood? No leave is granted Mr Wood. Mr Borobokas?

PN6

MR BOROBOKAS: Your Honour it wasn't until this morning that I became aware that Skilled Group Ltd had employees employed at the site who are I believe members of the NUW who is appearing here today. On that basis Your Honour we ask leave to proceed against the NUW as well.

PN7

THE SENIOR DEPUTY PRESIDENT: Yes very well. Mr Maas?

PN8

MR MAAS: That being the case Your Honour and for the sake of convenience we would consent to that amended application if the Commission pleases.

PN9

THE SENIOR DEPUTY PRESIDENT: Very well. I should indicate to the parties that each of these matters were lodged late on Friday. Skilled application was listed for 11 o'clock today in circumstances where there was doubt as to the ability to serve the AMWU with notice of the application and the hearing. We subsequently moved it to 2 pm today at the request of Skilled. The Meritor application was listed for nine o'clock today and later moved to two at the request for the notifier again in circumstances where there was some doubt as to the ability to serve the unions.

PN10

Given the related applications and the applicant's request for earlier hearing, discussions did occur on Saturday between myself and the solicitors for Meritor and separately with Mr Borobokas of Skilled about a hearing yesterday. An earlier hearing was not arranged in light of the inability to notify the unions. I did give consideration at the time for the making of interim orders but decided against doing so on the basis that I believed it contrary to the public interest in circumstances where it was not possible to serve the relevant unions and employees and provide them with an opportunity to be heard and where there was doubt as to the utility of an interim order if made in circumstances where service of the order on unions and employees was problematic. I put that on the record for the benefit of all parties, some who may not have been aware of some of those matters.

PN11

Mr Wood I wonder if I could first be appraised of what the current situation is in respect of the alleged industrial action.

PN12

MR WOOD: In relation to the industrial action Your Honour, we say that it's threatened impending improbable. We don't allege that it's happening because work is progressing on the site at Sunshine as we speak, or at least as far as we knew 10 minutes ago. Your Honour there was industrial action of a wildcat nature on Friday that commenced around 12.30, 12.45, 1 pm involving the day shift and the afternoon shift. That industrial action continued on Saturday from
6 am to 12 noon during the Saturday shift but there hasn't been any industrial action today Your Honour but there is a fear that because the industrial issue that motivated the wildcat industrial action on Friday and Saturday is unresolved and because there is a state-wide rally scheduled for Wednesday and because there's been no undertaking proffered by either of the unions who are represented at the Bar table to not engage in industrial action in the future, there is a concern that industrial action is threatened, impending or probable and that's the basis upon which we put the case.

PN13

THE SENIOR DEPUTY PRESIDENT: Yes well I might hear from
Mr Borobokas from the perspective of his clients and I should say if there's any issue about the matters - I understand them to be related - if there's any issue about them being heard together that can be raised by any party. Mr Borobokas what's your understanding in respect to the Skilled members?

PN14

MR BOROBOKAS: Yes Your Honour Skilled supplies some 20 employees at the site working next to Meritor our client's employees. Very similar to how counsel for Meritor has described it, our employees engage in ….. action on the Friday afternoon and similarly we believe that because the issue hasn't been resolved they're likely to engage in further industrial action, particularly this coming Wednesday.

PN15

THE SENIOR DEPUTY PRESIDENT: Very well. It does raise in my mind whether there is any utility in an attempt to enter in to consideration. I understand Mr Wood your immediate concern well was general but related in particular to Wednesday. Whether there is any desire for the parties to engage in conciliation firstly with a view to obtaining relevant undertakings which might satisfy the employer and secondly to seek to address the issues in dispute between the parties. Mr Wood do you have a view on that?

PN16

MR WOOD: Your Honour that was something I took some instructions on over lunch today. In relation to my client, Meritor, it is not involved in the industrial issue which has given rise to the industrial action - that is that industrial issue involves Skilled and the unions who are represented at the bar table and my client is a victim of attempts to put pressure on Skilled to deal with that industrial issue. The industrial issue can be explained by Mr Borobokas but as we understand it, it's a question of the extension of the relevant labour hire agreement covering all labour hire employees to people who do production work. That is we have Skilled employees - I think 17 - these numbers might not be quite right but it's around 17 employees on day shift who work performing functions such as assembly and welding and also in the stores and in relation to the assembly workers and the store workers there's a question about whether the labour hire agreement should apply.

PN17

There's an additional - approximately three - which gets to the 20 employees that Mr Borobokas referred to, who work on afternoon shift doing equivalent functions and given that the industrial issue doesn't involve my client, my client doesn't see any utility in engaging in discussions with the unions about an industrial issue that affects them and Skilled, or at least their relationship and - - -

PN18

THE SENIOR DEPUTY PRESIDENT: And the first issue as to whether there be any benefit in seeking undertakings of a nature which would satisfy your client?

PN19

MR WOOD: Perhaps that's something I could take some instructions on Your Honour.

PN20

THE SENIOR DEPUTY PRESIDENT: Yes very well.

PN21

MR WOOD: Should I do that now or do you want to hear from Mr Borobokas?

PN22

THE SENIOR DEPUTY PRESIDENT: I will hear from Mr Borobokas and then perhaps the unions and then allow you to get instructions. Mr Borobokas?

PN23

MR BOROBOKAS: Yes Your Honour. Your Honour our position is that we'd like to press for the application on the basis that there is action which is threatened, impending or probable. With respect to a conciliation going in to conference Your Honour, Skilled engaged in - have had discussions with the AMWU. Certainly I have on numerous occasions. The issue as outlined by counsel for Meritor is that the union believes the Skilled Labour Hire Metals and Associated Industries Enterprise Agreement applies to those employees. Our position is that it doesn't. Now the appropriate forum for that debate is in the Federal Court or equivalent court Your Honour not on the grass so to speak.

PN24

On that basis Your Honour and also given that we certainly won't be conceding that point because we believe that the agreement does not apply to those employees that are engaged in the industrial action - - -

PN25

THE SENIOR DEPUTY PRESIDENT: The relevant agreement is an old Act agreement.

PN26

MR BOROBOKAS: There are - yes the - - -

PN27

THE SENIOR DEPUTY PRESIDENT: Well when I say the relevant, there are perhaps two - - -

PN28

MR BOROBOKAS: Pre and - the pre and post work choice - perhaps that's a reasonable expression. Your Honour our employees that are covered by the new agreement voted on that, on I believe it was Wednesday last week. I think the seven day period finished on Wednesday and the Australian Electoral Commission has indicated to us that we had an overwhelming majority approve that agreement so I think under the legislation Your Honour the agreement applies from the time that it is approved by the employees, so on that basis I would say that we have a post work choices agreement in place. The scope of that agreement again if I can reiterate does not apply to the employees employed at
- production employees employed at that site.

PN29

THE SENIOR DEPUTY PRESIDENT: This is a post work choice say labour hire - what was the full title?

PN30

MR BOROBOKAS: I haven't been to the office for about four working days Your Honour I'm afraid and it is on my laptop but I'm hesitant to open it. I haven't had the opportunity to print a copy off.

PN31

THE SENIOR DEPUTY PRESIDENT: Yes but it's the labour hire agreement?

PN32

MR BOROBOKAS: Yes Skilled Group Labour Hire - - -

PN33

THE SENIOR DEPUTY PRESIDENT: Yes so the issue isn't of the Skilled Group Labour Hire Agreement, this is some other agreement but whether it's the old or new Skilled Agreement which applies.

PN34

MR BOROBOKAS: Yes Your Honour.

PN35

THE SENIOR DEPUTY PRESIDENT: Yes I follow you.

PN36

MR BOROBOKAS: We say that the production employees engaged in production work at Meritor are covered by the Metal Engineering Associated Industries Award 1998.

PN37

THE SENIOR DEPUTY PRESIDENT: Very well. Mr Terzic what's your position?

PN38

MR TERZIC: I might just reserve my position until we've heard from Mr Wood on whether his client would accept conciliation.

PN39

THE SENIOR DEPUTY PRESIDENT: Yes. Mr Portelli?

PN40

MR MAAS: Mr Maas Your Honour.

PN41

THE SENIOR DEPUTY PRESIDENT: Sorry, Mr Maas.

PN42

MR MAAS: Your Honour yes we're - our preferred position is to go in to conciliation also. I'll just outline very briefly however, that contrary to
Mr Woods' submission and Mr Borobokas' submission we would say that the dispute does cover current employees of Meritor Heavy Vehicle Systems Australia and that the actual issue in relation to the Inkerlink Fund has affected employees of Skilled who have then been made permanent employee who are now employed by Meritor. That's the crux of the dispute but one of the disputes
and another dispute which isn't even mentioned in the application that's been made to the Commission, is in relation to the Employee Entitlements Protection which is a clause which falls within the current enterprise agreement but perhaps these are issues best fleshed out a little bit later Your Honour but I too am interested to hear Mr Woods' and Mr Borobokas' position on conciliation if the Commission pleases.

PN43

THE SENIOR DEPUTY PRESIDENT: Very well. I will adjourn. You only need a short period I take it Mr Wood?

PN44

MR WOOD: Yes no more than five minutes Your Honour.

PN45

THE SENIOR DEPUTY PRESIDENT: I will adjourn for five minutes. I can indicate to assist the parties that the matter could carry on tomorrow if that's necessary - assist the parties in considering what I put to you and whilst Mr Wood and Mr Borobokas are further considering the position perhaps you Mr Maas and Mr Terzic could consider and if necessary obtain any instructions in relation to the proposition of relevant undertakings to allow that process to proceed. Very well I will adjourn for five minutes.

<SHORT ADJOURNMENT [2.19PM]
<RESUMED [2.41PM]

PN46

THE SENIOR DEPUTY PRESIDENT: Yes Mr Wood.

PN47

MR WOOD: Thank you Your Honour. Thank you for that opportunity to take instructions. I'm sorry it took a lot longer than I anticipated.

PN48

THE SENIOR DEPUTY PRESIDENT: Very well.

PN49

MR WOOD: One of the reasons it did is my client is quite concerned about the industrial action which is threatened for Wednesday having regard to the state of the truck manufacturing market like many areas of the economy it's going very well and Kenworth, one of my client's main customers needs guaranteed production of the materials that my client produces and that would be disrupted if there's any further industrial action before Christmas. One of the reason my client is running a Saturday shift is because there is a great deal of demand for its products in the vehicle manufacturing industry.

PN50

Having said that Your Honour we would be prepared to have discussions with
Mr Terzic and Mr Maas and Mr Hynds and Mr Larkin for that matter about whether or not they can provide us with any assurances or undertakings which would be satisfactory to us in terms of any further industrial action of the type that occurred on Friday and Saturday or of the type that planned for Wednesday. Your Honour I noted that you said that you'd be available tomorrow to deal with this application. I think you said tomorrow morning but I might have - you did say tomorrow morning?

PN51

THE SENIOR DEPUTY PRESIDENT: Well I think I said tomorrow but that means morning and afternoon.

PN52

MR WOOD: Your Honour our preference would probably be to have those discussions now and come back a little bit later than this afternoon to see if we can reach agreement but if that isn't suitable to the Commission then we would be happy to have those discussions this afternoon and come back tomorrow morning and see where we were.

PN53

THE SENIOR DEPUTY PRESIDENT: You're envisaging direct discussions with the unions in the first instance or conciliation?

PN54

MR WOOD: Your Honour we would be happy to have those discussions in any form mediated by the Commission or directly with the unions. I rather thought that we might be able to have discussions with Mr Terzic and Mr Maas directly in the first instance simply because they may well be able to bring - we haven't spoken to them before so we shouldn't rule out the possibility of some agreement in direct communication but if that fails then perhaps we could have the assistance of the Commission and if that fails then we could have our application heard.

PN55

THE DEPUTY PRESIDENT: Very well. Mr Borobokas?

PN56

MR BOROBOKAS: Yes thank you Your Honour. I haven't got much further to ad to that. We concur with the submissions made by counsel for Meritor.

PN57

THE SENIOR DEPUTY PRESIDENT: Very well, thank you. Mr Terzic and
Mr Maas, is there any desire to have a further adjournment to have discussions directly with the companies in the first instance on the basis that I will be available at the request of the parties?

PN58

MR TERZIC: Yes Your Honour and there's just two matters I'd wish to indicate for the sake of the record. Firstly that any discussions that we do engage in, in relation to this application and that anything else would be without prejudice and secondly both Mr Wood and Mr Borobokas have made various allegations and assertions from the bar table. We make no admissions in relation to any of those.

PN59

THE SENIOR DEPUTY PRESIDENT: That's understood. Mr Maas?

PN60

MR MAAS: I just concur with the submissions of my friend Mr Terzic if the Commission pleases.

PN61

THE SENIOR DEPUTY PRESIDENT: Yes and Mr Wood and Mr Borobokas you would understand any such discussions are without prejudice?

PN62

MR WOOD: Yes Your Honour of course and we understand what's said about the non admissions - of course we don't agree with it but - - -

PN63

THE SENIOR DEPUTY PRESIDENT: Very well. I'll adjourn the matter on the basis that I will be available in chambers and be contacted at any time.

<OFF THE RECORD

PN64

THE SENIOR DEPUTY PRESIDENT: Who would like to lead off. Mr Terzic?

PN65

MR TERZIC: Yes Your Honour I think I can speak on behalf of both unions but Mr Maas will indicate whether I've captured the undertakings that the unions can give but really we've got two parties in these proceedings, Meritor and Skilled and I'll deal with Skilled first. In relation to Skilled there's been a grievance over the payment of certain entitlements and that grievance has arisen we would say because there isn't in place a formal agreement - a workplace agreement as they're known between the unions and Skilled, so the parties have discussed briefly the parameters of an agreement and will attempt to reach an agreement that should resolve the issues that were between us.

PN66

Now having said that the unions will take the necessary steps to initiate a bargaining period and if the negotiations don't bear fruit of course we may resort to protected industrial action but we can give a commitment that the unions will not take unprotected industrial action and of course in respect of those who work at Skilled and Meritor and of course that means that no one from the Skilled group of workers will be departing from work without permission to attend the rally. Now in respect of Meritor there was a grievance over how the accrued entitlement, in particular long service leave and redundancy would be covered and that was dealt with in the agreement and the company have given a progress report on how those entitlements will be protected.

PN67

Part of that progress report will be reported to an authorised meeting of both unions that will - may commence during the smoko break and then extend
15 minutes beyond the smoko break without loss of pay and at that meeting, or at least before 2 pm the unions will provide a letter on union letterhead indicating that there will and there must not be any unprotected industrial action which would mean there'd be no industrial action for the life of the current agreement. It's currently due to expire well in to 2009. Now as for - that will largely assuage the union's concerns that caused the grievance. There's no secret about the fact that the labour movement in the state has organised a rally for the 26th of this month and we would like to have a large attendance there but in respect of the employees of Meritor, Meritor will authorise four named employees.

PN68

I don't have the names at hand but Mr Wood will help me I'm sure - to attend the rally and they will be given sufficient time off work also to of course travel to and from the rally and they won't lose pay for their attendance at the rally. Other employees who have - who are already on leave and have had leave approved prior to this moment can attend the rally too if that's not in contravention of their leave conditions, for example if they're sick and with doctor's orders not to go anywhere also would be not proper for them to go at all but if they're on annual leave or something of that nature of course they'd be free to spend their time at the rally.

PN69

I think I've captured the essence of the agreement. There might be some other matters that Mr Wood has canvassed - more prudently he made notes. I was from memory but those are the undertakings that the unions will give and in return for those undertakings there will be various benefits of value that I've already mentioned. For example the attendance at the rally and the meeting but also the applications would be adjourned indefinitely.

PN70

THE SENIOR DEPUTY PRESIDENT: Thank you Mr Terzic. Mr Maas?

PN71

MR MAAS: Thanks Your Honour. The union delegate supports the submissions made by Mr Terzic. If the Commission pleases.

PN72

THE SENIOR DEPUTY PRESIDENT: He's got it right?

PN73

MR MAAS: He has.

PN74

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Wood?

PN75

MR WOOD: Thank you Your Honour. In relation to 3589 which was the matter initiated by Meritor, there are six points we wish to make Your Honour. They have been summarised accurately by Mr Terzic. I might just indicate what they are for the record. The first is the matter of agreement between Meritor and the unions and that is the four employee, namely the shop stewards and deputy shop stewards of the AMWU and the NUW, Gerard Brown, Phillip Fletcher, Tony Marino, and Spiros Mizzi be allowed to attend on paid authorised leave, the union rally on Wednesday 26 September and be paid for the length of the rally and reasonable travel time thereto and thereafter.

PN76

The second is again by agreement between the unions and Meritor that no employee other than those who have already been approved leave, will be granted leave to attend the rally. Three - which is a point we make and it's obviously not by agreement - if unauthorised absences including purported sick leave are higher than normal levels on Wednesday 26 September then Meritor will take such steps as are available to it to proceed with this application. Four - and this is by agreement between the unions and Meritor, that the NUW and the AMWU will provide by 2 pm tomorrow, 25 September, a letter on their respective union letterhead stating that (1) they had met with day shift employees employed at Meritor from 10 am until 10.15 on 25 September and (2) that they have told the day shift employees that they, the day shift employees, should not engage in unprotected industrial action during the life of the current agreement (ie. not before 30 September 2009).

PN77

Five - and this is again by agreement between Meritor and the unions, that Meritor will allow one representative from the AMWU and the NUW to conduct a paid
15 minute meeting from 10 am to 10.15 on 25 September immediately following the smoko for the purpose of communicating the information referred to in point 4 and point 6 is not by agreement but really administrative matter for you Your Honour and that is the question of the adjournment of the current application in matter C2007/3589. I've just heard my learned friend Mr Terzic say that it should be adjourned indefinitely. For our part we would prefer that it be adjourned to a named time later in the week - that is after the union rally on Wednesday and if those - if there isn't anything to come back to the Commission about then we will obviously indicate that to the Commission.

PN78

That's obviously a matter for you Your Honour having regard to the statutory obligations that are pressed upon you. Your Honour could I just say by way of explanation and this is perhaps the seventh point that the reason we have singled out the day shift employees. You might be curious about that - it's because the day shift is much, much larger by an order of magnitude than the afternoon shift. The day shift has around 70 employees including the Skilled employees and the afternoon shift about six employees so it wasn't thought necessary to have a separate meeting with the afternoon shift.

PN79

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Borobokas?

PN80

MR BOROBOKAS: Thank you Your Honour. Your Honour I believe Mr Terzic has outlined the arrangement that we've agreed to, however just again for the record, Skilled has agreed that the AMWU and the NUW - have given an undertaking that the unions and its members who are employees of Skilled Group engaged at Meritor site in Sunshine, will not engage in any unlawful industrial action and this includes with respect to the rally on Wednesday and that the AMWU and the NUW will address our employees regarding - or their members
- regarding their obligations and communicate those obligations to them in writing too. Your Honour on that basis Skilled has agreed to continue discussions with the unions with respect to resolving the issues possibly via an enterprise agreement. Thank you Your Honour.

PN81

THE SENIOR DEPUTY PRESIDENT: Yes, anything from the union end arising? No. Very well what I will do when my associate returns is look at my diary. I will set down a date for these matters to resume on the basis that obviously that if the agreed arrangements between the parties have the effect that there is no remaining issue that will be advised to me by the applicants in each of the matters and that hearing will not proceed, so it's there purely as a safeguard if you like and presumably at some point the companies would be in a position to indicate that they don't wish to proceed to the agreements if things go as the parties anticipate they will.

PN82

MR WOOD: Proceed with the applications?

PN83

THE SENIOR DEPUTY PRESIDENT: Sorry?

PN84

MR WOOD: Proceed with the applications?

PN85

THE SENIOR DEPUTY PRESIDENT: Yes. Very well I'll just await my diary and I would ask of each of the unions indeed the company, could provide my associate with some form of telephonic communication which allows them to be notified quickly if there is no hearing so that no one expends unnecessary time attending here through lack of notice.

PN86

MR TERZIC: Your Honour if I may - I think it might assist all of the parties if a copy of this transcript could be expedited it would allow - - -

PN87

THE SENIOR DEPUTY PRESIDENT: That will occur. I'll have that done. Thank you. Yes I will adjourn each of the matters until 3.30 pm on Wednesday 26 September on the basis indicated that if there is no necessity for the matters to be brought back on at that time I will be advised by the applicant in each case and as I indicated earlier I'm really indicating it for the benefit of my associate now - I have asked each of the parties to provide you with some means of telephone communications so that you can quickly advise them if the hearing is not required to avoid any unnecessary travel up here on the day and I will have a transcript provided in an expedited fashion - I'll have that transcribed and provided to the parties if you could ensure again my associate has the relevant point to get it quickly to you. I will now adjourn.

<ADJOURNED UNTIL WEDNESDAY 26 SEPTEMBER 2007 [4.20PM]