C2014/8206, Transcript of Proceedings [2015] FWCTrans 131 (16 March 2015)

TRANSCRIPT OF PROCEEDINGS

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Fair Work Act 2009                                                    

COMMISSIONER McKENNA

C2014/8206

s.739 - Application to deal with a dispute

Media, Entertainment and Arts Alliance and the Community Public Sector Union

and

Australian Broadcasting Corporation
(C2014/8206)

Sydney

11.58 AM, THURSDAY, 19 FEBRUARY 2015

PN1

THE COMMISSIONER: Good afternoon, could I have the appearances please, first for the applicant?

PN2

MS K THOMAS: Thank you, Commissioner. It's Kerri THOMAS from Maurice Blackburn Lawyers, appearing on behalf of the MEAA and the CPSU.

PN3

THE COMMISSIONER: Thank you.

PN4

MR G JOLLY: Gareth JOLLY appearing on behalf of the ABC, and with me is Jen PATTERSON and Rebecca DONALDSON. Rebecca Donaldson is from the ABC.

PN5

THE COMMISSIONER: Thank you. This matter has recently been reallocated to me. I understand it was previously before Catanzariti VP, who's presently unable to deal with the matter. There has been a request for a relisting for a conference. I've listed the matter for a mention by telephone today just so prior to that conference and any discussing of dates that are convenient to the parties. Could you please provide me with an update in relation to the matter? Ms Thomas?

PN6

MS THOMAS: Yes. Thank you, Commissioner. My instructions are that since we were last before the Commission in December before the Vice President, the parties have been (indistinct) recommendations from the Vice President and that was, as I understand it, implemented. Since that time there has been some discussions between the parties and further consultations, and some communication from the respondent to employees.

PN7

The purpose of the request for relisting the conference is that the applicants in the dispute request the assistance of the Commission in order to resolve an outstanding matter between the parties, one of which is primarily in relation to the selection process for the redundancies that are taking place at the moment.

PN8

THE COMMISSIONER: I see, and when have discussions most recently been held between the parties in relation to such matters?

PN9

MS THOMAS: Sorry, when?

PN10

THE COMMISSIONER: Yes.

PN11

MS THOMAS: I can't give you those - information, Commissioner. I apologise, I just don't have that information at hand.

PN12

THE COMMISSIONER: Well, it's just – perhaps can you assist, Mr Jolly, in that regard?

PN13

MR JOLLY: I understand that the last meeting took place on 22 January. There has been some correspondence between the parties since. So I should say importantly, though, the ABC believes that all outstanding matters have in fact been dealt with. The unions recently indicated they thought there were further outstanding matters and they committed last week to provide a table to the ABC stating what those outstanding matters were. That table has still not been provided so we have no idea what the outstanding matters actually are. However we believe that we have consulted over everything.

PN14

THE COMMISSIONER: I see.

PN15

Ms Thomas, you've heard what Mr Jolly has to say and I'm just looking at the actual initiating process at paragraph 7 as to the relief sought and that reads as follows:

PN16

That the ABC:

PN17

1. Withdraw its plans to pool personnel and compel pooled employees to participate in arbitrary and unfair competitive processes.

PN18

2. Suspend implementation of any redundancy and / or employee termination program other than where employees properly advised have indicated that they wish for their employment to come to an end.

PN19

3. To enter into a schedule of meetings with the relevant unions to genuinely discuss and implement alternatives to redundancy and to determine a program for implementing further changes in 2015.

PN20

Based on the submission that you have just made to me and having heard Mr Jolly also, it may be the case that the matter that is now being raised, and thereby the conference that is sought, goes to something different from the parameters of this dispute and the relief initially sought?

PN21

MS THOMAS: Well, (inaudible) as to what the respondent - - -

PN22

THE COMMISSIONER: I'm sorry, your voice is dropping away, Ms Thomas. Could you just repeat what you had just said?

PN23

MS THOMAS: Sorry. I'm sorry, I'm unfortunately still in Queensland. The issue that the applicant stated that yes, there is a position that there are matters outstanding in relation to consultation, and while we acknowledge that the table hasn't been responded to at this stage it was our client's submission that that would be something that could be more properly brought before the Commission and discuss those matters at a conference rather than, you know, potentially engaging in a bit of horse trading or, you know, without really getting the issues out in the open.

PN24

I guess in response to the respondent's contention about the matters, not knowing what is outstanding, I guess that the real issue is about the selection process, which I would be surprised if the ABC really didn't understand that that was, you know, the issue that the unions have been raising since this whole process. So I guess what we were hoping was to seek your assistance, Commissioner, in order to try and resolve those matters in the first instance, and that's why we have requested the conference.

PN25

THE COMMISSIONER: Mr Jolly, I'll of course hear what you want to say, but Mr Jolly actually submits to me that he thought matters had effectively been on track in accordance with the recommendation made by the Vice President. He submits to me that his client isn't aware or wasn't aware of the table or particular, albeit you say you would be surprised if they didn't know.

PN26

But in circumstances where no meetings have been held as between the parties principal and / or their representatives since 22 January, an appropriate first step might be to hold a conference to explore those matters or indeed I could even, if the parties were agreeable, go off the bench for a short while so that some greater clarification can emerge as between yourselves as to what it is that you wish to discuss. I often think that there is utility in parties holding discussions between themselves in the first instance and then, to the extent that matters are unresolved, that's when there might be a more fruitful role for the Commission.

PN27

MR JOLLY: Can I make this suggestion, Commissioner?

PN28

THE COMMISSIONER: Yes, Mr Jolly.

PN29

MR JOLLY: It seems to me that we should go back to where we were a week ago when the unions said they will provide us with a table with what they see the outstanding issues were. That would be the appropriate place to start. We can then have a look at that table and we can take it from there. Until then we're not sure what the outstanding issues are. We don't believe there is anything that we haven't dealt with, but if the union says that's wrong, they should provide the table as they originally promised us. I should also say that at no stage have the unions suggested that they would provide the table at the Commission or to the Commission instead of directly to us for the purposes of discussions. That's something entirely new to us.

PN30

MS THOMAS: Sorry, to just interject there. As I understand it (indistinct) my client sent correspondence to Minter Ellison to that effect saying that we were of the view that the table shouldn't be provided while, you know, this – we could potentially seek the assistance of the Commission.

PN31

MR JOLLY: Well, that turns the dispute resolution procedure on its head, doesn't it? There are meant to be discussions between the parties before you go to the Commission. And I don't believe that is in the correspondence, although I don't have it in front of me. I'm not sure at this point.

PN32

MS THOMAS: It's just, Commissioner, I guess the – I'm hesitant about engaging in the substantive issue here because we are on the phone and I think I indicated that I am not really available at the moment. However I guess we would be pressing for a conference to take place and if I can talk to my clients about preparing for the purposes of a conference a response in relation to the table, and that might localise the issue for the purposes a conference.

PN33

THE COMMISSIONER: If I can say, with respect, Mr Jolly's submissions seem to me to be a more practicable way to deal with matters. That is, I am informed that there had been a promise, I think was the word that you used, Mr Jolly, to provide a table and that that table has not been provided; and as I understand it, Ms Thomas, then you're proposing that in circumstances where a table has not been provided, that the ABC would hypothetically see it for the first time or approximate to the first time when the matter was listed for a conference.

PN34

Mr Jolly, I don't have the exact details of the steps to be followed in relation to the dispute resolution procedure but just as a generally proposition that what you have submitted would seem to be the ordinary course of events. That is the parties hold discussions first, and then if matters are not resolved it be escalated to the Commission.

PN35

MR JOLLY: Thank you, Commissioner.

PN36

THE COMMISSIONER: Ms Thomas, I'm inclined to favour the course that has been proposed by Mr Jolly rather than simply listing a conference. You need to identify what the outstanding issues are first and hold discussions between yourselves. It may be that if your clients consider that there are outstanding issues, that they could be adequately answered or responded to or however matters might unfold, and then you would need to hold some discussions and then to the extent that matters are not resolved, that might be the more fruitful juncture for the Commission's involvement in chairing a conference.

PN37

MS THOMAS: Thank you, Commissioner. I do have also another issue where I'm - just about the ABC is issuing redundancy notices today and telling people that they must accept them today, which of course does put a different kind of element to that matter, that we wouldn't want there to be a prejudice to the, you know, further consultation and discussions if people are - you know, if the situation is we can’t go ringing our bells, if people are being told they must accept redundancies today then, you know, the discussions can't really – won't be fruitful.

PN38

THE COMMISSIONER: Yes, but as I understand it, it was your clients that were seeking a conference next week?

PN39

MS THOMAS: That’s correct, yes. But I'm only told today that that's what was happening. At the time of requesting the conference I wasn't aware that that was happening.

PN40

THE COMMISSIONER: Yes. Look Ms Thomas, Mr Jolly, I think that there might be some utility if the representatives held some discussions between themselves concerning programming. I could stand this matter down the list for a half an hour and if you need to obtain any instructions, Ms Thomas, that would give you an opportunity to do so, and similarly Mr Jolly. Then if the parties wished to dial in again on the relevant number on the notice of listing – I don't know if a half an hour is long enough?

PN41

MR JOLLY: Commissioner, it might help if I clarify something so we know exactly what’s being talked about here. What we’re actually discussing is letters being issued to staff under clause 55.6.1 of the agreement. The essence of what that does, is it gives the staff seven days in which to elect to be retrenched or to undergo the redeployment process. If they elect for redeployment, there is then a further six-week redeployment period. Those letters have actually been aggressively issued for some time now. Out of some 280 employees, 180 letters have already been issued and, in many cases, already responded to.

PN42

I think the important thing, though, for present purposes is that if an employee elects for redeployment on the letter issued today or in the last week or so, the earliest they would face retrenchment is late March/early April. So there’s a considerable time before any of those employees would be compulsorily retrenched.

PN43

We don’t see any reason to hold off on this protest. This protest has been going on for some time. It’s also important to appreciate that there has been extensive consultation with the unions; we’ve been consulting since November. We thought we had every issue resolved; we’re told we don’t but we still don’t know what those issues are.

PN44

The simple fact of the matter is consultation isn’t an open ended opportunity for delay or frustration of this process. In these circumstances, Commissioner, we think the process should proceed for the reasons I’ve said: the redeployment period of six weeks provides protection to avoid those.

PN45

MS THOMAS: Can I ask the question about whether or not, then, if that indicates - is it possible to un-ring the bells. If people have ticked redeployment and the process changes between now and late March/early April, that those letters will potentially be withdrawn if that is the outcome.

PN46

MR JOLLY: That will be a matter for discussion and/or the Commission if we come to conciliation and arbitration.

PN47

MS THOMAS: Okay.

PN48

THE COMMISSIONER: But you say, Mr Jolly, that a large number of these communications have already been issued to employees over a period of time that hasn’t commenced today.

PN49

MR JOLLY: Since December there have been 180 of those letters issued.

PN50

MS THOMAS: My understanding is, in relation to that, that a lot of those are in relation to a direct redundancy process, as opposed to the central issue in relation to the selection pool. But this again is a matter that might be more fruitfully explored in discussions.

PN51

MR JOLLY: My instructions are that they’re both.

PN52

THE COMMISSIONER: I didn’t hear what you said, Mr Jolly, I’m sorry.

PN53

MR JOLLY: I’m sorry, my instructions are that they are both, that is, on direct redundancies and pool or selection-based redundancies. So a substantial way along, in short, Commissioner.

PN54

THE COMMISSIONER: Could I come back, then, to what I’d said earlier: would the parties like me to stand this matter down the list to allow you perhaps, in the first instance, to hold some discussions between yourselves and then obtain some instructions? But if there has been a promise to the table which has not then be provided, that would seem to be something that should certainly be provided to the ABC, if such a promise had been made.

PN55

MS THOMAS: Commissioner, I wouldn’t use the word “promise” but I understand that yes, there was statements about providing that. So perhaps what we could do is - I understand that you’re available on Thursday next week. Perhaps if we can do something along the lines of if the unions provide a table - - -

PN56

THE COMMISSIONER: No, if I can just stop you there. We can discuss programming after perhaps you’ve held some discussions between yourselves. I also now have some greater availability earlier next week than I had otherwise anticipated, so that that’s a matter that we can discuss; Thursday is now problematic.

PN57

Do the parties agree that it would be appropriate to stand this matter down at least until, say, a quarter to 1.

PN58

MR JOLLY: We’re content with that, Commissioner.

PN59

MS THOMAS: Thank you, Commissioner.

PN60

THE COMMISSIONER: All right, do you want me to leave you on the line for the time being? Of course, I’ll ask for the recording equipment to be turned off when I leave the room, and then you can simply disconnect after you’ve held your own preliminary discussions.

PN61

MS THOMAS: We would really appreciate that, Commissioner, thank you.

PN62

MR JOLLY: Thank you, Commissioner.

PN63

THE COMMISSIONER: Thank you. What I’ll do is, I’ll leave the parties on the line. As I leave the room, I will ask that the recording equipment be turned off. Then, once you have held your own discussions as between yourselves, you can simply disconnect and then, is a quarter to 1 a suitable time for you to dial back in then, or would you like a little bit more time?

PN64

MR JOLLY: That’s suitable.

PN65

THE COMMISSIONER: Ms Thomas?

PN66

MS THOMAS: Yes, Commissioner. And potentially, if we are able to email you a preference or?

PN67

THE COMMISSIONER: No, I’d like to lock in a time now. A quarter to 1, that is, New South Wales time, so 25 minutes from now.

PN68

MS THOMAS: Thank you.

PN69

THE COMMISSIONER: Good, thank you very much.

OFF THE RECORD                                                                             [12.21 PM]

ON THE RECORD                                                                               [12.46 PM]

PN70

THE COMMISSIONER: Yes, Ms Thomas.

PN71

MS THOMAS: Thank you, Commissioner. I’ve consulted with our clients and with the respondent. What we propose is that our client provide a response to - or identify the issues that are outstanding by midday tomorrow, with a view to having a meeting on Tuesday next week at the ABC’s offices so that the relevant parties can discuss matter. Then, I guess as a result of that meeting, potentially list the matter for conference, which would be good to have your availability to work backwards from there.

PN72

MR JOLLY: Commissioner, I should just clarify the union’s position. Commissioner, what we thought we might do is to determine your availability for a conference, if we might, and then work backwards from there to schedule a meeting between the ABC and unions. The indications from the unions are that they will provide the table of outstanding issues, as originally promised, by midday tomorrow.

PN73

THE COMMISSIONER: I see. How would the parties be placed on Wednesday, 25th; I am clear that day?

PN74

MS THOMAS: That would be agreeable with us.

PN75

MR JOLLY: That would be suitable to us as well.

PN76

THE COMMISSIONER: Would you prefer morning or afternoon? I am entirely clear that day.

PN77

MR JOLLY: I think we should start in the morning, if that’s possible, Commissioner.

PN78

THE COMMISSIONER: I see. Does that also suit your availability, Ms Thomas?

PN79

MS THOMAS: Yes, thank you, Commissioner.

PN80

THE COMMISSIONER: How would you like the conference conducted; by videolink, in person?

PN81

MR JOLLY: I think it would be preferable if it was face-to-face.

PN82

MS THOMAS: I agree.

PN83

THE COMMISSIONER: I just say that in that regard because Ms Thomas is in Queensland; is that the case, Ms Thomas?

PN84

MS THOMAS: It is. I will get my instructions about going down to Sydney but I was there in person in December, which I think will be preferable. It always works better, in my opinion, if everyone is there in the room.

PN85

THE COMMISSIONER: Yes. What would be a suitable start time, then? I can do it at 10, as usual, but if you’re holding last-minute discussions or obtaining instructions, it might be better if the matter was listed at 11?

PN86

MR JOLLY: 10 would be suitable, Commissioner. If that does occur, we can always seek the matter be stood down, but we’d anticipate that the issues would be flushed out at the meeting on the Tuesday. If necessary, of course, we could then meet on the Wednesday again as well.

PN87

THE COMMISSIONER: Yes. If 10 o’clock is suitable to everybody, let’s lock in that date, and you confirm to me that it’s a conference in person.

PN88

MS THOMAS: Thank you, Commissioner, will do.

PN89

THE COMMISSIONER: You have confirmed now; that’s the case?

PN90

MS THOMAS: Yes.

PN91

THE COMMISSIONER: Thank you. I’ll list the matter for conference at 10 am on Wednesday, 25 February 2015.

PN92

The document is going to be provided tomorrow by midday tomorrow.

PN93

MS THOMAS: That’s correct, Commissioner.

PN94

THE COMMISSIONER: Have you actually arranged when you were then going to meet, because it might be convenient to lock in that time now whilst you all have the availability of your diaries open, as it were.

PN95

MS THOMAS: My understanding is, and perhaps I wasn’t clear on this earlier, but the representatives wouldn’t be involved in those discussions between the parties on Tuesday. Is that your understanding? So it would be a meeting between the ABC, CPSU and MEAA. Yes, so the meeting - that is the meeting pre our conference in the Commission.

PN96

THE COMMISSIONER: Yes.

PN97

MS THOMAS: Then obviously the preference of the ABC is that that occur as soon as possible. I know, Drew(?), you’ve indicated that Caitlin McInerney comes back from leave on Monday, but may be that we can - we can perhaps take that offline. We can get that meeting locked in for Monday afternoon so that we can progress things as much as possible Monday afternoon and Tuesday before appearing in the Commission on Wednesday.

PN98

MR JOLLY: I think, given that the application has been brought on urgently, the parties should try and set aside all the time they can to have discussions before returning to the Commission on Wednesday.

PN99

THE COMMISSIONER: Yes, I think that that would be appropriate.

PN100

MS THOMAS: I beg your pardon, are you suggesting that the legal representatives are at those meetings on Monday and Tuesday?

PN101

MR JOLLY: We weren’t intending to be there.

PN102

MS THOMAS: Yes, great. That’s what I was thinking too.

PN103

THE COMMISSIONER: What I wouldn’t want to happen is for the parties to come here on Wednesday at 10 o’clock and say we haven’t actually held a meeting.

PN104

MS THOMAS: That’s not the intention of the applicants.

PN105

MR JOLLY: We might just try and lock in some times, so if we try and do all day Tuesday and then maybe Monday afternoon as well?

PN106

MS THOMAS: I can’t do Monday afternoon; my instructions were Tuesday. I can go back to you, but if we can talk about this offline.

PN107

THE COMMISSIONER: All right, but certainly Tuesday and you’ll liaise as between yourselves concerning Monday afternoon?

PN108

MS THOMAS: Yes, thank you, Commissioner.

PN109

THE COMMISSIONER: Is there anything else that needs to be attended to?

PN110

MR JOLLY: Nothing further from us, Commissioner.

PN111

MS THOMAS: No, thank you, Commissioner.

PN112

THE COMMISSIONER: Good, thank you. Good luck with your discussions. The matter is put over to Wednesday at 10 O’clock for a conference in person.

PN113

Thank you and off record.

ADJOURNED UNTIL WEDNESDAY, 25 FEBRUARY 2015       [12.52 PM]