BP2008/3027, Transcript of Proceedings [2008] AIRCTrans 217 (15 May 2008)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 18463-1

COMMISSIONER BLAIR

BP2008/3027 BP2008/3035

s.451(1) - Application for order for protected action ballot to be held
Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union
and
Feltex Carpets Pty Ltd
(BP2008/3027)

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
Feltex Carpets Pty Ltd
(BP2008/3035)

MELBOURNE

9.44AM, THURSDAY, 01 MAY 2008

Continued from 23/4/2008

Hearing continuing

PN23

MR G BORENSTEIN: I appear on behalf of the CEPU.

PN24

MR G GLOVER: I appear on behalf of the CEPU.

PN25

MR J WIELADEK: I appear on behalf of the AMWU.

PN26

MS L MUMME: I seek leave to appear on behalf of Feltex Carpets Pty Ltd with
MS J ANDERSON and MR N VELEVSKI.

PN27

THE COMMISSIONER: Does anybody have any objections to Ms Mumme seeking leave? No? Leave is granted. There are two matters, one is BP20083035, an application by the, we'll call the CEPU. The original application is BP20083027, which is an application by the AMWU. Both matters have been set down for hearing this morning in regard to an application for a protected action ballot. Who'll lead off, please? Mr Borenstein?

PN28

MR BORENSTEIN: Commissioner, as I understand it, the application is going to be contested and I suppose we're in the Commission's hands how we want to proceed from here, whether it might be useful to get an idea of the actual objections, because there are a raft of hurdles that we must overcome. Rather than trying to deal with everyone of them it might useful and more efficient if we actually hear what the actual objections are and then maybe we can limit the evidence and witness testimony to those issues. I'm in the Commission's hands on that. I'm happy to call evidence now and go into it blind, but - - -

PN29

THE COMMISSIONER: I thought the parties in this matter were reasonably close.

PN30

MR BORENSTEIN: In negotiations?

PN31

THE COMMISSIONER: Yes.

PN32

MR BORENSTEIN: They are reasonably close, not yet in agreement, unfortunately, but they will continue to negotiate, irrespective of this application.

PN33

THE COMMISSIONER: Sorry, if I stand corrected. I think it was conveyed to the Commission last time that the outstanding issue was either the operative date or the issue of back pay.

PN34

MR BORENSTEIN: We weren't actually at the previous application - - -

PN35

THE COMMISSIONER: No, Mr Wieladek was.

PN36

MR BORENSTEIN: - - - with respect. The position that we have it was back pay, the percentage increase of wages where I think the union was at five, five and five and the company I think has now come to four, four and four. That's just on my limited instructions, and the union, the ETU had an issue with the A grade licence as well. I think they're the areas of dispute. That's the limit of my instructions on the matter so far. The witnesses will tell more if there is any more. That's where we're at in respect to the negotiations.

PN37

THE COMMISSIONER: From the CEPU's point of view, are there any other scheduled discussions to occur?

PN38

MR BORENSTEIN: I do not have those instructions. I don't think there is any meeting booked in at the moment. I think there was a meeting yesterday, a negotiation meeting yesterday.

PN39

THE COMMISSIONER: Where did that go?

PN40

MR BORENSTEIN: There was a report back to the members yesterday and the issue of back pay, I believe, has been settled so now it's just the wages issue and the A grade licence between the parties.

PN41

THE COMMISSIONER: The A grade licence doesn't affect Mr Wieladek.

PN42

MR BORENSTEIN: I think the company might have put an offer of the date for back pay but have now possibly pulled it off the table but the back pay they had put on the table, I think, was acceptable to the unions but I'm not sure what the company has done in respect of that.

PN43

THE COMMISSIONER: So there's the quantum and there's the A grade from the CEPU's point of view and the quantum issue from Metals, I would assume.

PN44

MR WIELADEK: Sir, in addition to that is a tool allowance issue and I understand that income protection insurance may be an issue that pays are still part of.

PN45

THE COMMISSIONER: Right. Ms Mumme.

PN46

MS MUMME: Commissioner, the company's position will be that neither of the applications meet the requirement of section 461(1)(a) and (b), that is neither of the unions, we submit, have been genuinely trying to reach agreement in a situation that I'll come to. We also say that section 461(2)(a) hasn't been satisfied.

PN47

The situation, Commissioner, as I'm instructed, is that approximately two weeks ago the metalworkers made a claim of 4 per cent increases effective from
1 January 2008 and ongoing 2009-2010. On Tuesday of this week the company contacted the metalworkers and informed - in a situation, sorry, Commissioner, where the company's offer was 4 per cent effective from 1 February so a month's difference, if you like.

PN48

The company communicated to the metalworkers on Tuesday that that would be accepted by the company. Yesterday we understand there was a mass meeting of the members at which neither of the ETU nor metalworkers organisers were present. The company has been unofficially informed of the outcome of that meeting from the shop stewards. At no stage has the company pulled the offer of back pay off the table. We have been unofficially informed as from yesterday that their claim is now in fact 5 per cent increase from 1 February, 2008 and 4 per cent increase going forward on 1 February 2009 to 2010.

PN49

THE COMMISSIONER: The first increase has been increased by 1 per cent.

PN50

MS MUMME: That's right, but dropping the back pay claim themselves, if you like, so bringing - sorry, I mean, the bottom line, Commissioner, is that there are no more scheduled discussions because the company is in the dark as to what the official outcome of yesterday's meeting was. It hasn't been formally notified on the issue of the tool allowance. The metalworkers were advised that there is some information that the company can provide in that respect, that is that particular tool allowances has been rolled into the hourly rate and we've now got some documentation to that effect and we haven't had the opportunity to put that to the union.

PN51

THE COMMISSIONER: Was that an arrangement made sometime ago?

PN52

MS MUMME: That if the parties could demonstrate - yes, certainly, that if the company could demonstrate that the tool allowance had been rolled into the hourly rate, then that would be acceptable, as I understand it.

PN53

THE COMMISSIONER: The rolling into the hourly rate was what, part of an agreement reached?

PN54

MS MUMME: Part of an old award, I think, Commissioner - 1995 agreement.

PN55

THE COMMISSIONER: 1995 agreement?

PN56

MS MUMME: Yes. That's where the rolling-in occurred.

PN57

THE COMMISSIONER: You've got documentation to say that that was part of an outcome.

PN58

MS MUMME: Yes, and that's the commitment that the company gave, that it would do that research and provide that information to the union and it hasn't had the opportunity to do that because, as I understand it, Mr Hynds has been not available for the last two days.

PN59

Commissioner, in those circumstances we say that the requirements of the section haven't been met. Certainly the company should be given the official version for the outcome of yesterday's meeting. We are still in the dark as to what the claim is, given that at no stage - and you've heard this morning that apparently we've pulled the offer of back pay off the table. That's the first the company has heard of that. In that situation, Commissioner, we think it entirely inappropriate that the ballot order be made and we further say that the requirements of the section haven't been met.

PN60

THE COMMISSIONER: What's the issue with the salary claim?

PN61

MR BORENSTEIN: With respect to the salary claim, it's four, four and four versus five, five and five at the moment.

PN62

THE COMMISSIONER: Te company says the claim has been four, four and four.

PN63

MR BORENSTEIN: That's not correct, Commissioner. Not correct.

PN64

THE COMMISSIONER: Have the parties been meeting in the same room?

PN65

MR BORENSTEIN: They have been. I can hand up a draft agreement that was tabled which has seven, seven and seven in it so that's where the units have come down. I'm not saying we're still claiming seven, seven and seven but we've moved from seven, seven and seven, which may have been some ambit but we've come down to five, five and five which is - - -

PN66

THE COMMISSIONER: Ms Mumme says her instructions are that the claim ultimately was four, four and four, which is agreed to, there was an issue about an operative date, back pay. That was ultimately agreed to arising out of a meeting yesterday where Ms Mumme's instructions are that there were no officials there and it was conducted by shop stewards and the company, through the grapevine, has been told that the first payment must now be 5 per cent, not 4 per cent as had been agreed. Why weren't there any officials at the meeting?

PN67

MR BORENSTEIN: I probably can't speak to that, Commissioner.

PN68

MR GLOVER: I was in meetings with ..... all afternoon yesterday, I was unavailable, but in my absence my delegate, I've got full confidence in him and he'd be representing the ETU in those matters and if he formally went up to the company, I'd take that as formally informing the company of the outcome of the meeting. If I'm not there, they don't need me there to formally tell them of the outcome.

PN69

THE COMMISSIONER: Mr Wieladek.

PN70

MR WIELADEK: Sir, my understanding is that Mr Hynds was attending our state conference yesterday.

PN71

THE COMMISSIONER: I'll tell you what I'm going to do, I'm going to adjourn. I'm going to relist the matter for 11.30 on Tuesday, the 13th. In the meantime I'm going to direct that you have at least three sets of negotiations and I don't care what you've got in your diaries, those negotiations will occur over the next week. Then I'll hear what you've got to tell me on Tuesday, the 13th at 11.30 and if there is no agreement and if it's possible for the parties to accept the Commission going into conciliation, I'm happy to do that. If you're so far apart that it's not going to make one ounce of difference, then I'll hear argument as to whether or not the application should be granted or refused. Okay? But there's got to be three sets of negotiations, okay? Stand adjourned till 11.30 Tuesday, 13 May.

<ADJOURNED UNTIL TUESDAY 13 MAY 2008 [9.56AM]