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C2008/ 2546 , Transcript of Proceedings [2008] AIRCTrans 310 (26 June 2008)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 18654-1

COMMISSIONER FOGGO

C2008/ 2546 

s.496(1) - Appl’n for order against industrial action (federal system).
Australia Post
and
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
(C2008/ 2546 )

MELBOURNE

1.23PM, MONDAY, 16 JUNE 2008

PN1

MR S WOOD: I seek leave to appear for the applicant, the Australian Postal Corporation.

PN2

MR C HAAN: I seek leave to appear for the CPU.

PN3

THE COMMISSIONER: Leave is granted in both cases. I’m sorry to keep you waiting but it makes it a bit difficult when at quarter to 12 I get faxed through dozens of pages of documents which are central and relevant to this matter, which I spoke to Australia Post representatives on early Friday afternoon. Now is there any reason why documents are lodged as late as this?

PN4

MR WOOD: I think it was just a question Commissioner of trying to cross the t’s and dot the i’s. There’s a great deal of evidence in those statements that was collected at some haste on Friday.

PN5

THE COMMISSIONER: Well today is Monday.

PN6

MR WOOD: That’s right Commissioner and it’s important in these cases to ensure that the factual matters that we put before the Commission are accurate and we’ve tried to do that and in doing that that takes some time. We think it’s better in these cases to have the facts in as accurate a form as possible, particularly in circumstances where we’re going to be asking the Commission to draw inferences from those facts as to the union’s involvement in this conduct and we wouldn’t want the Commission to draw inferences from facts that we weren’t confident of putting before the Commission.

PN7

THE COMMISSIONER: Yes well at any particular stage if I need to consider any application by the union in relation to these matters regarding time for them to consider this, that may well be the case. I take it the union does have copy of these does it?

PN8

MR HAAN: Yes, Commissioner some of the material was just handed to me including an outline of argument just a few minutes ago, and I would foreshadow that the union would like to apply for some time to consider that material. Commissioner I would also follow on from that the union would like to make submissions that it’s appropriate for this matter to go into conciliation. I can address you on that now if you wish if you like?

PN9

THE COMMISSIONER: Yes, I think that would be preferable. I take it that you are not pressing – well you tell me – are you pressing the adjournment application now or are you going to be merely foreshadowing that?

PN10

MR HAAN: Well if we go into conciliation then I can among other things use that time to get my head around this material I’ve just been given. So if there is a conciliation I may not need to delay it any further.

PN11

THE COMMISSIONER: Yes, give me your views in relation to conciliation.

PN12

MR HAAN: Yes Commissioner, the reason why we say it’s appropriate for conciliation is that there’s no urgency in deciding this application, there is no industrial action currently going on at the workplace. The last industrial action ceased I think at about 8 am on Friday morning and the applicant hasn’t put forward a shred of evidence to suggest that there’s been any threats by anyone that there is going to be any further industrial action. Their whole case is based on inferences based on the fact that because industrial action occurred then, it might just happen again.

PN13

Now the issue which apparently sparked the strike on Thursday was an issue about the cutting of rostering people on, on Sundays before a Monday public holiday. The employees believe that that will result in them losing shift penalties in some $160 per week and just to tell you something about the facts Commissioner. This Sunday issue would only arise I think three times a year, before holidays such as Easter holiday and the Queens birthday holiday, which is the immediate one for this time.

PN14

THE COMMISSIONER: When is the third time? Well you said three times.

PN15

MR HAAN: Yes, Labour Day. So the next time this issue will arise is we think in Easter next year and in Mr Bass’s statement he says he’s given who is the manager of the facility at Dandenong, he’s given evidence that he’s assured the union that there is no intention to change current shift arrangements in relation to Sundays in relation to public holidays.

PN16

THE COMMISSIONER: Is that written or verbal advice?

PN17

MR HAAN: It’s written at paragraph 42.

PN18

THE COMMISSIONER: So it’s verbal advice from Mr Bass?

PN19

MR HAAN: Yes, but written in the sense that it was in the statement I was confused sorry. Given that that issue is the issue that appeared to have caused the strike and given the employer is now saying that it is in fact not an issue the employees are mistaken, it seems to me that if the parties now get together that their concerns can be assuaged and any further possibility of any action over the issue can be averted.

PN20

THE COMMISSIONER: Yes, thank you. What’s your view in relation to this Mr Wood?

PN21

MR WOOD: In relation to the adjournment or the conciliation?

PN22

THE COMMISSIONER: The conciliation, the adjournment is foreshadowed.

PN23

MR WOOD: In relation to conciliation I’m instructed to oppose conciliation Commissioner. We don’t regard from our part that there is anything to conciliate about. The unions have through the secretary who is here at the bar table today denied any involvement in the action, the industrial action and picket that occurred last week. So for our part we can’t see that there’s any point conciliating with a party that to date denies it was involved in anything. Moreover and this jurisdiction is an unusual one in the sense that this jurisdiction is one that must be exercised quickly. Section 496 subsection 5 says:

PN24

As far as practicable the Commission must hear and determine an application for an order made under subsection (1) or (2) within 48 hours after the application is made.

PN25

The application was made as we read the section and the rules about 1.13 on Friday 13 June. On our calculation that 48 hours is up and it therefore appears from our reading of the statute that the Commission should hear and determine the application for an order without further delay. That seems to be the nature of the jurisdiction that’s imposed by statute on the Commission and we would rather regard going into conciliation as inconsistent with that obligation. Those are my instructions on that point Commissioner.

PN26

THE COMMISSIONER: Yes thank you. I think there may well be some value in proceeding into conciliation, given that the documents have just been put on the table a substantial amount of documents have just been put on the table by Australia Post some 72 hours after the action, then I think that and the action as I understand it is no longer occurring, then I think that we can take some time in conciliation. Is there a problem with that Mr Wood?

PN27

MR WOOD: Commissioner I’ve said all I’ve said on instructions about conciliation.

PN28

THE COMMISSIONER: You seemed to balk somewhat when I said that as I understood it industrial action was not occurring at this time.

PN29

MR WOOD: We’ve got a formal submission that it is in fact happening and the basis upon which we say that is set out in the material. It’s much more likely we would accept that the Commission will find that it is not in fact happening but it is probable or threatened, rather than actually happening, but we’ve formally submitted that it is happening and I understand my learned friend will say that it is not happening. I understand his submissions as to that but we say there is in effect a ban in place which will be agitated from time to time. That is industrial action is happening.

PN30

I don’t need to take that submission any further Commissioner. I simply rise in response to your question. I understand that the more likely basis upon which we get home, is that industrial action is probable or threatened rather than it being regarded as it happening. I don’t have anything further to say on the application by the union to go into conciliation.

PN31

THE COMMISSIONER: Yes, thank you we will move into conciliation.

<NO FURTHER PROCEEDINGS RECORDED