BP2007/480, Transcript of Proceedings [2007] AIRCTrans 717 (21 December 2007)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 17869-1

DEPUTY PRESIDENT IVES

BP2007/480

s.451(1) - Application for order for protected action ballot to be held
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
and
Swisslog Australia Pty Ltd
(BP2007/480)

MELBOURNE

2.08PM, MONDAY, 03 DECEMBER 2007

Hearing continuing

PN1

MR G BORENSTEIN: I appear for the CEPU in this matter.

PN2

MR I DIXON: If the Commission pleases, I seek leave to appear on behalf of the company in this matter.

PN3

THE DEPUTY PRESIDENT: Any objection to leave?

PN4

MR BORENSTEIN: No, your Honour.

PN5

MR DIXON: I’m grateful.

PN6

THE DEPUTY PRESIDENT: Leave is granted.

PN7

MR BORENSTEIN: Your Honour, this is an application for a ballot order as you would be well aware. We have filed the materials which I assume your Honour has.

PN8

THE DEPUTY PRESIDENT: Yes, I do.

PN9

MR BORENSTEIN: As part of that application I think there were orders made for putting the notices on the - - -

PN10

THE DEPUTY PRESIDENT: It gets a bit complicated doing it the ETU way so I usually don’t bother and I just issue some directions to the employer which includes a direction to post a notice. I assume that’s been done, Mr Dixon?

PN11

MR DIXON: I’m led to believe so, your Honour. I’m sorry, there has just been a slight problem this morning. I am basically unable to be contacted with the ever reliable mobile phone. It went down and I was out of the office this morning but I understand it has because they certainly have the orders which they forwarded to me. And I was told they were making arrangements for that to be done. I just can’t confirm it.

PN12

THE DEPUTY PRESIDENT: All right. Thank you.

PN13

MR BORENSTEIN: On that basis we say obviously that requirement should be - the Commission be satisfied that that’s been - the people have had an opportunity to come along if they so wish and I don’t think anyone has actually taken up the opportunity to come along.

PN14

THE DEPUTY PRESIDENT: Yes, they have.

PN15

MR BORENSTEIN: They have? Not my experience but I think your Honour would have more experience than me. So, anyway, in this case we have actually spoken to the steward and he has given us instructions and things both for the employees and, on his understanding, no one wishes to come along and he just advised us to proceed with the ballot order application on behalf of them.

PN16

We submit that this is a situation somewhat like - I think your Honour will remember the ..... Wormald matter.

PN17

THE DEPUTY PRESIDENT: I remember it well, Mr Borenstein.

PN18

MR BORENSTEIN: So do I. It seems a long time ago. And in that matter there was correspondence going backwards and forwards about trying to meet and I suppose one party didn’t want to meet and we were trying to - rather than have a paper warfare we just wanted to get the matter - meet face to face which I think is a reasonable thing to do.

PN19

This matter - there have been - there was a number of meetings in this matter early on and then the parties went away to draft, I suppose, proposed agreements. The Swisslog provided us with a proposed agreement and then the ETU went about reviewing that agreement and making the changes to it that it saw necessary. I suppose the ETU and the employer’s view of the Swisslog agreement was that it was a document that sought to consolidate so it didn’t have an award underpinning it because that doesn’t seem to operate now with the Work Choices legislation and it didn’t seem to really - it didn’t attach the award or it didn’t really consolidate it in any meaningful way. So the ETU’s concern and the employer’s concern was to make sure that all the award conditions - - -

PN20

THE DEPUTY PRESIDENT: Sorry, you say the document you received from the respondent didn’t do those things.

PN21

MR BORENSTEIN: Didn’t do those things. It was probably a document that the company saw was all the clauses that it saw were relevant but, as I suppose people involved in industrial relations regularly - the awards are relied upon a fair bit and just because they’re not immediately apparent to be relevant they do actually have a lot of application or may have a lot of application in these things.

PN22

So the union went through I suppose a lengthy process of comparing the company’s document and looking at what things were not in it that the award would cover and making sure that it was comprehensive document because there is no form ..... under the new legislation. So I’ll just hand up the correspondence that went between the parties. It might be useful if we mark those.

PN23

THE DEPUTY PRESIDENT: Just explain to me what it is that I have, Mr Borenstein.

PN24

MR BORENSTEIN: The first document is an email from Mr Montebello dated 12 October 2007.

EXHIBIT #ETU 1 EMAIL FROM MR MONTEBELLO TO SWISSLOG DATED 12/10/2007

PN25

THE DEPUTY PRESIDENT: Yes, and that is what?

PN26

MR BORENSTEIN: Firstly, that’s an email to Lyn Simpson of Swisslog, who is the relevant human resources manager and that’s attaching a proposed agreement which is the ETU’s response to the document provided by Swisslog. Now, I’ll get to their document in a second. That’s the response from the union to their document. I think this has been printed out without the changes tracked but on the - I think it might have actually been colour coded, the relevant - sorry, it was colour coded so the changes were marked in colour. Obviously the union doesn’t have a colour photocopy unfortunately but we can - the company did get a colour copy of the agreement which set out the areas where the union had changed.

PN27

Then the second document which starts off with an email dated 24 October 2007 is a - the latest email which has a number of emails attached to it, or previously emails to it, and then attached to that document it is the company’s latest proposal.

PN28

THE DEPUTY PRESIDENT: So that’s the company’s response to ETU 1, is that correct?

PN29

MR BORENSTEIN: That’s right, which is very similar to the document the ETU worked off to do its - in ETU 1.

EXHIBIT #ETU 2 EMAIL FROM SWISSLOG ATTACHING COMPANY’S LATEST PROPOSAL TO ETU DATED 24/12/2007

PN30

MR BORENSTEIN: I might take you to - if you go to page 3 of the emails you will see at the bottom there there’s an email from Mr Montebello, 6 October 2007. This is on ETU 2.

PN31

THE DEPUTY PRESIDENT: Yes, sorry, on page 3?

PN32

MR BORENSTEIN: Page 3, yes.

PN33

THE DEPUTY PRESIDENT: Yes.

PN34

MR BORENSTEIN: There’s an email of 16 October 2007 where Mr Montebello says to Lyn Simpson:

PN35

Refer to the email dated 12 October 2007 -

PN36

which is the email at ETU 1:

PN37

- which had the proposed agreement. We would like to progress negotiations and provide some options for a meeting.

PN38

Because at this stage we hadn’t heard back from them and Mr Montebello gives three dates there:

PN39

Could you please contact me by email to arrange such a meeting.

PN40

Now, above that is the response from Lyn Simpson saying she’s just arrived back form South Australia then that she will respond to the time when she has reviewed her schedule for the next few weeks. Then at the top of that page is another email from Mr Montebello saying:

PN41

Hi Lyn, received your email. That’s fine as long as we have some dates by the end of the week.

PN42

Being 9 October 2007. Then on the Thursday Simpson replies, on 18 October:

PN43

We have had a look at the changed agreement and found that you have made some additions in red as you informed us in the email. You have made other changes without colours whole of clause 30 changes to clause 22 and sick leave and others. You've made significant changes by taking out clauses without highlighting this. You have added ..... 50 pages of an award. As these changes are quite considerable ..... we're not able to provide a fast response, we will require some time to read, compare and digest the document fully, before we can provide a comment. If you could list all the changes you have made to the document that would assist us to speed up the process. As soon as we have been able to review the document completely we will contact you to arrange a meeting.

PN44

At this stage I suppose we have agreement from the union, agreement from the company in place and it’s the union’s view that rather than doing all this in written format which takes significant time, the time was to sit down, they could work off their document and we go through and advise them of the changes we have made to it. Therefore, they’d be absolutely clear on what changes are made, they don’t have to think, what’s happened there, what’s happened there, because we’re there to explain it.

PN45

So the response from the union back was on 22 October we advise that Mr Montebello says, look, he did the most - he did his utmost to track all the changes and if he missed some he apologises. The unlimited amount of time to reply he says is unsatisfactory and then he says:

PN46

Now that you have a proposed document and we have one it’s now time for us to meet to go through it face to face rather than through written correspondence. Rather than you trying to figure out all the changes and why we included them, we see the most appropriate process for us to meet face to face. At such a meeting we will explain all the changes we have made and the reasons for them, thereby saving you the time of trying to digest it all, only to be wrong in your conclusions. If we follow your process we'll be going for another 12 months. It's clearly time we need to meet face to face, for you not to agree to such is clearly unreasonable and reeks of delay campaign. Should you not provide us with a time to meet by 25 October 2007 we will be left with no other choice but to seek a ballot order.

PN47

Then we have the first page, the last email from Ms Simpson saying that:

PN48

We cannot understand your email below -

PN49

Basically saying that they had been trying to do all they can to try and reach agreement and basically avoiding any commitment to meet with us. They then say in the second paragraph:

PN50

In the meantime we have had discussions as well with all our employees on site and have reached an agreement with the AMWU as you may be aware. We want to reach an agreement with the ETU members as well and for that reason we attached a revised proposal which is ready to sign, including - it includes a whole list of improvements against the current conditions of work. I list a couple ..... The attached agreement is a very clear document that can be signed at any moment and will need far less time that the long documents you provided to us and we hope you will discuss this document with your members. We would appreciate a speedy ..... from the ETU so that the agreement can be certified and implemented as soon as possible for the sake of our employees.

PN51

That email smacks of not wanting to meet with the ETU but rather, “Sign our agreement, we’ve done it, we’re going convince your members to agree to it if you - no indication that they want to meet with us whatsoever. And it’s our view that the company, instead of try to meet with us and wanting to meet with us has been the time to go through that process - have started to try and go to each of the employees and put pressure on them to sign their document that they have actually got through with another union.

PN52

I suppose, the ETU is left in a situation where we just want to meet with them and we can’t get a look-in. And it’s taken this application to actually at least get - I personally got a phone call from Ms Simpson asking what it’s about and I just said: look, we really want to meet with you and the response - I don’t want to verbal too much but the response was, well, they’re in Sydney and it’s a difficult thing for them to come down and their managing director is overseas.

PN53

THE DEPUTY PRESIDENT: Okay, I get the point.

PN54

MR BORENSTEIN: I can get in the box if you want me to. So we have come to the view that the company doesn’t want to reach agreement with us. They want to push through their agreement and they’re going to start putting pressure on the employees to do that on an employee collective basis and so we want our rights under the Act as well. They have their rights and we had to do that and we want our rights under the Act to take protective industrial action if the employees so wish.

PN55

But we do give the commitment that we would - we hope that the company will meet with us and we’re happy to meet with them - we’d love to meet with them a couple of times this week if they can arrange it. And we will continue to meet with them even during the ballot order process as we just want to reach an agreement and just because we get this order will not stop us trying to reach agreement with them.

PN56

So, on that basis we say that there are no other issues, any issues regarding the lawfulness of this ballot order. All the legislative requirements have been met, in our submission, and I haven’t been advised otherwise. I’m sure Mr Dixon might have something to say about that.

PN57

THE DEPUTY PRESIDENT: I might just ask Mr Dixon now regarding that just so that we can cut through that if that’s possible.

PN58

MR BORENSTEIN: Yes, no problems.

PN59

THE DEPUTY PRESIDENT: The requirements pursuant to section 452, 453 and 454, Mr Dixon, do you take issue with any of those requirements having been met?

PN60

MR DIXON: No. We think technically it’s .....

PN61

THE DEPUTY PRESIDENT: Yes, it appeared to me that they have been from what’s in front of me but I just wanted to know whether you have an issue - - -

PN62

MR DIXON: No, we don’t. We don’t raise any issues.

PN63

THE DEPUTY PRESIDENT: Thank you. Is that it, Mr Borenstein?

PN64

MR BORENSTEIN: That’s it.

PN65

THE DEPUTY PRESIDENT: All right. Mr Dixon.

PN66

MR DIXON: Your Honour, I find myself in a rare position of agreement with my colleague at the Bar table on this save for the very last step. You have heard that the parties have been talking with each other extensively. There are three employees in this site who are members of the ETU, only three. Negotiations have been going on for some time and it has been true and is true that the company wants to reach agreement with the union. It remains that way. They do want to reach agreement with the union.

PN67

They have reached agreement with the AMWU. The trouble with the first negotiations which the company found with the union was that it was given what was clearly a pattern bargaining agreement very early on in these negotiations and was told this is what they’d have to do, and this is the attachment and vast parts of this were completely irrelevant to the company. It related to other sites, other industries and they have moved away from that extensively.

PN68

It is true to say that the company - and Mr Borenstein has put it down very well - has tried to reach its agreement tailored for its operation. What’s coming through, what we’re fundamentally don’t seem to be able to get - we are getting close to and we believe we are getting closer to, your Honour, is that there are some parts which the company just did not accept and the ETU just did not accept but they continued to meet and talk and if I can say with respect, Exhibit ETU 2 sets that out very well.

PN69

I adopt this much: the company is happy to meet with the union. I adopt Mr Borenstein’s submission there. We’re happy to have face-to-face meetings and if I go to the union first and work backwards, our applications you would hear is that to show that they’re generally trying to reach agreement and so that you can be satisfied that they are, it would be our view that the parties should be directed into a meeting with your good self or directly with the union, under your auspices before we get to any application for a ballot because we don’t think that’s taken place.

PN70

Now, I may be wrong but I’m fairly sure it hasn’t happened. I haven’t been involved in the whole process but I have been, there have been meetings between the parties, there have been exchanges of correspondence, there have been draft documents. We have moved a long way from what was the ETU pattern agreement and a long way from what was the company’s preferred position and they have made some substantial progress.

PN71

What has happened in the last - and it’s been outlined in Exhibit ETU is that there are recent changes as the drafts were tracking. And you’ll be aware, as the authorities say, well, say sometimes throwing in new matters at the last minute or deleting others which are thought to have been agreed can reflect of the idea of whether there’s some other purpose. Now, I’m not naturally paranoid or suspicious but I do see a letter which was addressed to Swisslog from the ETU urging them to sign up to join national Electrical Contracts Association and ease they’re workplace requirements, help sign up their agreement.

PN72

One would not want to draw the long bow of saying that the problem you’ll face you may well have industrial action under this ballot unless you suddenly take up this invitation so kindly extended by Mr Mayall of 27th November. In fact, it says:

PN73

We certainly hope you will take the initiative to enter into the agreement reached between ...(reads)... in the interests to your company, the employees and our industry.

PN74

I don’t think we need to go that far to say that perhaps there’s an ulterior purpose to this application for a ballot so that there’s industrial action to be taken by three people when there has been such substantial negotiation and movement towards a genuine agreement and the short term submission I put to you, your Honour, is this: if they are genuinely trying to reach agreement and the company should be, and says it is, and the ETU says they are, then before this application goes ahead, and you are now dealing with it under the very short timeframe which the Act imposes upon the Commission, but you’re able to adjourn this application and direct the parties to meet to test that genuineness and see that the parties are genuinely able to meet.

PN75

We say we are. At no stage in Exhibit ETU 2 has it been said we do not want to meet with you. It is the sort of longbow suspicion drawn by my colleague on the other side that I said that I could do from that letter from the ETU. We are happy to reach agreement. We are just not so happy with some of the terms that were put forward.

PN76

So, in short, we would say that to show that there has been genuine negotiation and so that you can be fully satisfied, your Honour, that the parties have tried to genuinely reach agreement, we would ask that you direct that they either meet either with you or under your chairmanship or directly and report back to you in the next week or so and then you can be satisfied and if necessary make the order.

PN77

But our view is that the changes which were put forward by Mr Montebello to Ms Simpson, as she quite clearly sets out, large scale changes, 50 pages of an award were added, some clauses were taken out and some clauses were changed without highlighting. It does take someone time to work through. No doubt the ETU are experienced negotiators but Ms Simpson and Swisslog are not quite as experienced. So we make that application.

PN78

THE DEPUTY PRESIDENT: Where am I going to get the power from to make that direction, Mr Dixon?

PN79

MR DIXON: There’s always the general power of the Commission where you’re dealing with the matter, your Honour. You have an application. It says you must grant the application if you’re satisfied and you must not if you’re not. There would be no reason why this Commission shouldn’t exercise its general power of its procedures to adjourn the matter to have further negotiations on the table.

PN80

THE DEPUTY PRESIDENT: All right. Just so I understand you correctly, it’s the issue of genuineness that is the only issue that you’re taking with the current application, is that correct?

PN81

MR DIXON: Yes, indeed.

PN82

THE DEPUTY PRESIDENT: You held up a document at the beginning which you said indicated a pattern bargaining approach but you don’t say that that is the approach currently of the union?

PN83

MR DIXON: No. I understand the last documents have withdrawn any reference to petrochemical sites or other instruments which may not be relevant to this company at all and would seem to be drawn from another document used in other areas. Now, ....., hold it up now, your Honour, to show that there’s been change.

PN84

THE DEPUTY PRESIDENT: All right, thank you. Mr Borenstein.

PN85

MR BORENSTEIN: Yes. I thank my friend for saying that because it’s clearly not the situation where the union is seeking the, I suppose, standard document. There have been negotiations and we have moved away from them significantly. My friend pointed to a letter which is a standard letter that’s gone out to a list of people in the database and ..... must have been on that database but it’s clear from the correspondence that the document that letter refers to is not the document that the union has provided Swisslog and goes against all the correspondence the union has provided to Swisslog.

PN86

If Swisslog thought that we were seeking to sign the industry document, they could call our bluff by signing the document we gave to them which is at ETU 1 because it’s a far cry from the industry document. But, in any event, we would - we want to meet with the company. We’d be happy to - - -

PN87

THE DEPUTY PRESIDENT: Why don’t we adjourn for a couple of minutes into conference. Does anybody have any objection to doing that?

<SHORT ADJOURNMENT [2.31PM]
<RESUMED [2.39PM]

PN88

THE DEPUTY PRESIDENT: We have had some discussion in conference and it’s been agreed between the parties that this application will be adjourned subject to a meeting between the parties under the auspices of the Commission to be held on Thursday afternoon of this week, that’s Thursday, the 6th, at 1.30 pm. At that meeting there will be discussion between the parties towards making an agreement and further, should it be necessary, the ETU’s application for a ballot will be determined at that time.

PN89

The only issue that is taken with that application at the moment, as I understand it, is the application of genuineness.

PN90

All right. If there’s nothing further, we’ll adjourn.

<ADJOURNED UNTIL THURSDAY 6 DECEMBER 2007 [2.40PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #ETU 1 EMAIL FROM MR MONTEBELLO TO SWISSLOG DATED 12/10/2007 PN24
EXHIBIT #ETU 2 EMAIL FROM SWISSLOG ATTACHING COMPANY’S LATEST PROPOSAL TO ETU DATED 24/12/2007 PN29