BP2006/3559, Transcript of Proceedings [2006] AIRCTrans 1184 (1 November 2006)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 15946-1

SENIOR DEPUTY PRESIDENT O’CALLAGHAN

BP2006/3559

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION
AND
MITOLO CONSTRUCTIONS PTY LTD
s.451(1) - Application for order for protected action ballot to be held
(BP2006/3559)

ADELAIDE

11.30AM, THURSDAY, 19 OCTOBER 2006

Hearing continuing

PN1

MR S MAXWELL: I appear for the Construction Forestry Mining and Energy Union, with me Ms N Levy.

PN2

MR M J HOWARD: I appear for Mitolo Constructions Pty Ltd.

PN3

THE SENIOR DEPUTY PRESIDENT: The parties should have received from my office yesterday a package of material including a notice of listing, an initial order and two draft orders. Can I indicate to the parties at the outset that it appears to me that there is an error in my initial order which may, depending on what I'm told today, limit the extent to which this matter can proceed today. That initial order referred to various actions that needed to occur by 3 pm today rather than 3 pm yesterday. I thought I would raise that with the parties at the outset and with that opening comment I'm in your hands, Mr Maxwell.

PN4

MR MAXWELL: Thank you, your Honour. Your Honour, I take it that you are referring there in particular to the initial order and directions, paragraph 6?

PN5

THE SENIOR DEPUTY PRESIDENT: That's right.

PN6

MR MAXWELL: Your Honour, subject to what Mr Howard may have to say on the issue in regard to the extent to which the employer has taken action to make the employees aware of today's hearing it will be our submission that, to the extent possible, that this matter proceed to deal with a number of issues, mainly in terms of whether there is a valid bargaining period issued prohibited content and the form of any order, but that it would be our submission that if there is any issue in regard to the lack of notice given to existing employees of today's proceedings, that the matter then be adjourned to ensure that notices have been absolutely given and to allow employees until 3 pm tomorrow to notify the Commission if they wish to make any submissions.

PN7

THE SENIOR DEPUTY PRESIDENT: 3pm tomorrow or 3 pm today?

PN8

MR MAXWELL: Well, if you can ensure that notices are given today, that they be given till 3 pm tomorrow to notify the Commission if they wish to make any submissions and, if they do, well then we would obviously need to probably have some hearing as soon as possible next week. But if not, if they don't, then if the matter has been substantially dealt with today, then the Commission would be in a position to make the orders.

PN9

THE SENIOR DEPUTY PRESIDENT: Yes, all right.

PN10

MR MAXWELL: That would be our initial submission as regards the process to be followed.

PN11

THE SENIOR DEPUTY PRESIDENT: All right. Thank you, Mr Maxwell. We might try to ascertain employer position on a couple of those issues. Mr Howard, can you help me first of all in terms of what steps have been taken already by the employer with respect to those initial orders and directions issued yesterday?

PN12

MR HOWARD: If it please the Commission, your Honour, item 4 was not complied with. Mr Paul Mitolo, who is the actual employer, the Managing Director of Mitolo Constructions Pty Ltd, was not in the office yesterday afternoon. In this awkward position that he's not here again today, he's been at the Adelaide Children's Hospital, they've had a new born baby and it's undergone three operations and he hasn't been available and as a result of that there was nobody in Mitolo Constructions' office as of yesterday afternoon who could comply with that particular order.

PN13

The situation is that the company has seven jobs currently in operation and they actually spread from Adelaide to Port Lincoln. As to the designation as to where some of these jobs are, there's one at North Adelaide, one at the Ashford Hospital, one on the corner of Hutt Street and Flinders Street, The Advertiser project in King William Street, Modbury, Modbury Way and Port Lincoln. So it was a bit of, I guess, an impossible task on the time basis to comply but without Mr Mitolo there at the helm of the company, it was more than impossible to comply. I did speak to him yesterday afternoon after I picked up this matter, and I must admit, I didn't pick up this matter until after 3 o'clock myself, so there was a time problem and, as I said earlier, Mr Mitolo at this point in time is at the Adelaide Children's Hospital and is unavailable to be here this morning for the hearing. So I - - -

PN14

THE SENIOR DEPUTY PRESIDENT: If I re-issued the order, that is, the initial order and directions today and presumably within the next couple of hours, so as to require the same suite of actions to be taken, but with those actions being focused on today's date, which is consistent with the order in that regard, are you in a position to confirm to me that those necessary steps could be taken?

PN15

MR HOWARD: I believe that if that was the case, I would make all steps to make sure that the notices required would be given to the employees concerned and they'd be aware of the hearing.

PN16

THE SENIOR DEPUTY PRESIDENT: I see, and Mr Maxwell suggested that in that event employees might be given a period of 24 hours, that is, until 3 pm tomorrow?

PN17

MR HOWARD: I would have no objection to what Mr Maxwell said in respect to that matter, your Honour.

PN18

THE SENIOR DEPUTY PRESIDENT: All right. Then that takes me to the next issue and that is, if I've understood Mr Maxwell correctly, he's suggesting that it might be possible to deal with at least some of the preliminary matters associated with this application today. They go to issues which were identified in the cover sheet attached to the notice of listing and in particular the question of whether BP2006/1991 represents a valid bargaining period for the purposes of section 461 and the extent to which there may be claims made in BP2006/1991, which preclude the granting of the application.

PN19

MR HOWARD: I must admit, because of the unavailability of Mr Mitolo, there may be some gaps in what I'm able to provide to the Commission. I found this very difficult. I spent all morning on it, making phone calls, and it's very difficult when people are not in the office and not available to provide you the information you require. I'm happy to hear what Mr Maxwell has to say in respect to the matter. There was a notice of initiation of bargaining period served on the company on 17 February 2006. I understand that to be the matter and I do have a copy of that initiation of the bargaining period.

PN20

THE SENIOR DEPUTY PRESIDENT: All right. So I'm taking it they're happy for us to proceed down that path, but you're foreshadowing that you may run into difficulties depending on that which Mr Maxwell puts to me?

PN21

MR HOWARD: That's correct, your Honour.

PN22

THE SENIOR DEPUTY PRESIDENT: All right, thank you. Mr Maxwell?

PN23

MR MAXWELL: Thank you, your Honour. Your Honour the Commission is required to order a Protected Action ballot as the substantive requirements of the Act and technical prerequisites have been met. We would submit that the union has standing to make application. Section 451 of the Workplace Relations Act provides that an organisation of employees who has initiated a bargaining period may apply for a protected action ballot during the bargaining period. In the documents that were filed in the Commission, that's attachments A and B to the application, a copy of the notice of initiation of a bargaining period were supplied to the Commission, which included a letter to the Registrar and a copy of the bargaining period notice of initiation. I should point out that that application was made in February 2006 before the introduction of the Work Choices amendments.

PN24

THE SENIOR DEPUTY PRESIDENT: Yes. It's that issue that obviously causes me concern and underpins the identification of that matter in the facsimile attached to the notice.

PN25

MR MAXWELL: Well, your Honour, we would submit that the application was made in accordance with the Act that was in force at that time and the application was made pursuant to subsection 170MI(2) of the Act that was in force. It is our understanding that to date we are unaware of any decisions of the Commission where a bargaining period or where a notice of bargaining period made prior to March 2006 was lodged and a bargaining period allocated to that notice, where such bargaining period has been challenged in regard to relying on a bargaining period for taking further action once Work Choices comes into force.

PN26

THE SENIOR DEPUTY PRESIDENT: Can I ask you to address me in the reverse? Are you aware of decisions of the Commission that have been granted to section 461 where the underpinning bargaining period predates the Work Choices legislation?

PN27

MR MAXWELL: Well, your Honour, I think we find ourselves in the same boat. We're unaware of any situations of either situation.

PN28

THE SENIOR DEPUTY PRESIDENT: Yes.

PN29

MR MAXWELL: We have sought to make contact with the ACTU and sought advice from them, whether they were aware of any decisions and as far as they are aware, as far as new territory that is yet to be concluded or to be dealt with by the Commission. As far as we understand it - - -

PN30

THE SENIOR DEPUTY PRESIDENT: That's called my luck. Keep going, Mr Maxwell.

PN31

MR MAXWELL: As far as we understand it, there was nothing in the legislation or the transitional provisions that sought to preclude or that's required any notice of a bargaining period issued prior to the introduction of the Work Choices amendments, required that bargaining period to finish with introduction of the amendments in March 2006. So we would say there is nothing that clearly identifies the wishes of parliament to require the Commission to, as it were, terminate the old bargaining period and then require the parties to initiate the bargaining periods, then we believe that the Commission would have the power to act on the bargaining period that was issued prior to the Work Choices amendments of March 2006.

PN32

THE SENIOR DEPUTY PRESIDENT: Can I raise a couple of issue with you and I will raise them, but you needn't sort of comment on them individually, you may want to sort of consider them as a group and perhaps respond to them and in that regard I've noted you've come from a place far away. If you don't have access to all of the necessary material I'd be very happy to adjourn the matter for a brief time so as to allow you that sort of access because I'm not setting out to trip you up, but rather to make sure that in fact the capacity to consider the application does exist.

PN33

One of the relatively early decisions in relation to secret ballot orders was that issued by Vice President Lawler in relation to the ANF which is to be found at print PR971312 and in that matter you've got the Vice President considered an application where the union had initiated a bargaining period prior to the commencement of the Work Choices reforms. The Commission had commenced exercising conciliation powers pursuant to section 170NA of the pre reform Act and the Vice President concluded that the union was in that matter entitled to proceed on the basis that the pre reform Workplace Relations Act continues to govern bargaining pursuant to the bargaining periods initiated but not concluded before the commencement of the Work Choices reforms.

PN34

He continued to conclude that the secret ballot provisions of the Workplace Relations Act, as amended by the Work Choices Act, did not apply during that period. Now, that decision was the subject of an appeal and the Full Bench in that appeal at PR971973 considered at some length the transitional provisions in relation to item 20 of those particular provisions. It concluded, having looked at the explanatory memoranda, by saying that or by quashing the Vice President's decision and saying that whilst item 20 on its face is capable of being read to extend to things other than conciliation in relation to agreement provisions, the memoranda suggests that the term "matter" should be given a narrow rather than an expansive meaning.

PN35

The Full Bench continued to say:

PN36

Doing the best we can with what is an unsatisfactory piece of drafting we have concluded that in the end the terms of the explanatory memorandum and supplementary explanatory memorandum provide a basis to resolve the issue. ...(reads)... In the result the ANF would be unable to take protected action without making an application for a protected action ballot order pursuant to section 451(1) of the amended Act.

PN37

If I look at section 461, reference is made to when a bargaining period begins and note 2 I'm referred to section 427. 427 appears to pretty bluntly refer to provisions inserted as part of the Work Choices amendments. Looking at the Workplace Relations Amendment Work Choices legislation itself and in particular looking at the explanatory memorandum in relation to item 20, I see that at paragraph 3841 that memorandum states:

PN38

Application in relation to negotiations for workplace agreements. This item would provide for the continuation of conciliation conducted by the AIRC in relation to the negotiation of certified agreements that commenced before the reform commencement. ...(reads)... including, where relevant, those particular powers contained in division 3 of part 6 of the Workplace Relations Act as enforced at that time.

PN39

Now, there are two observations that I make in that regard. The first is the reference to a three month period which we've now passed in terms of a time frame, and secondly I don't see anything in that memorandum or, indeed, the Act that automatically allows a presumption to be made that a bargaining period entered into under the pre reform legislation can in fact be utilised for this purpose.

PN40

Now, as I said to you, the purpose of my raising these issues is not to trip you up in terms of the process, but it does seem to me to be absolutely critical that before I consider any order, as a matter of equity to you as the applicant, establish the question of whether or not the capacity to make such an order exists. Otherwise we may well have set your members on a path to take industrial action which may not be protected, which hardly seems to be consistent with the legislation. Now, in that context I'm not at all sure that section 461 is capable of being, as it were, enlivened by a pre reform bargaining period notice and I wonder whether you might want to take a few minutes to have a look at those various matters that I've referred you to. I'm happy to make all of that material available both to you and to Mr Howard, but it seems to me that it's a threshold issue that needs to be determined at the outset.

PN41

MR MAXWELL: Your Honour, I understand the issues you've raised, and the importance of them, and I think we take the opportunity to seek an adjournment to settle those issues.

PN42

THE SENIOR DEPUTY PRESIDENT: All right. If you do want access to any of the material that I've referred you to, I'd invite you to let my associate know and I make the same offer to Mr Howard.

PN43

MR HOWARD: Thank you, your Honour.

PN44

THE SENIOR DEPUTY PRESIDENT: Mr Howard, are you happy with that approach?

PN45

MR HOWARD: I'm happy with that, your Honour, yes.

PN46

THE SENIOR DEPUTY PRESIDENT: I'll adjourn the matter. It occurs to me that this might not be a five minute adjournment. You might need half an hour or so. If it turns out to be a shorter period of time, then please advise my associate. If you need slightly longer than half an hour, I'm happy to accommodate that too. I'll adjourn the matter on that basis.

<SHORT ADJOURNMENT [11.53PM]
<RESUMED [12.58PM]

PN47

THE SENIOR DEPUTY PRESIDENT: Mr Maxwell?

PN48

MR MAXWELL: Thank you, your Honour. Your Honour, the union has taken some time to consider the issues raised and accepts that the issues are significant threshold issues that need to be properly considered and on that basis we would seek an adjournment of the matter to allow full consideration of the issues that you had raised, because obviously if at the end of our considerations we accept the proposition that the bargaining period or the notice of bargaining period issued prior to the introduction of the Work Choices legislation is potentially invalid, then it may be that the union may not wish to proceed with the application. But that is an issue we wish to further consider and on that basis we would seek, I suppose, the maximum duration that you can give us to allow that to occur.

PN49

We have discussed the issue with Mr Howard on behalf of the employer and believe that he has no objection to those proceedings and we would suggest that at the time indeed provided by the Commission we either proceed with the matter or notify the Commission that we wish to withdraw the matter. If the Commission pleases, thank you.

PN50

THE SENIOR DEPUTY PRESIDENT: Mr Howard, I take it that reflects your position?

PN51

MR HOWARD: That's correct, your Honour.

PN52

THE SENIOR DEPUTY PRESIDENT: All right. During the adjournment time I've revised the order issue yesterday relative to the notice of hearing of the application and I take this opportunity to issue a new order in this respect. I could have simply referred to this as a correction order, but I have in fact called it the CFMEU Mitolo Constructions Pty Ltd Notice of Hearing of Application for Protected Action Ballot Order Number 2 of 2006. The effect of this order is to largely reiterate the requirements detailed in order number 1 issued yesterday with the notable exception that it requires the CFMEU to serve the order by 3 pm today and it requires the employer to take various actions before 4.30 pm today.

PN53

It also details that the matter would be called on again for hearing at 11.30 am tomorrow for the purpose of determination of the application. Mr Maxwell, in the normal circumstances I need to say to you that I will probably not look kindly upon an application for an adjournment of that nature, but given the error in my earlier order and hence the need to extend the time frame for the hearing of this matter so as to give employees the opportunity to attend, should they wish to do so, I think it quite appropriate that I allow you that time to consider the issues that I've raised.

PN54

In the event that the applicant doesn't wish to proceed with the matter, then it's your election as to whether you simply advise me of that at a hearing tomorrow at 11.30 am or alternatively whether you provide written advice to that effect. The hearing tomorrow will be by way of video link to Sydney and in the event that the matter does proceed tomorrow I would propose that we deal with this preliminary issue at the outset and then proceed through the various matters that were identified in the facsimile attached to the notice of listing yesterday so that to the extent that there is any question in your mind about the process tomorrow, I hope that assists and if you require any further information I'm happy to answer any questions now.

PN55

In the event that the applicant did withdraw the application on the basis that a further application could conceivably be made in the future, can I reiterate my earlier comment to you that it might be appropriate to sidestep this issue by initiating a new form of bargaining period consistent with the Act. Now, I'll provide the parties now with a copy of that order. I won't read it out, but it will be issue within a few minutes of the conclusion of this hearing and I take it, Mr Howard, that you'll be able to contact the employer so as to ensure compliance with that?

PN56

MR HOWARD: I will contact the employer to ensure compliance with the order, your Honour.

PN57

THE SENIOR DEPUTY PRESIDENT: All right, thank you. Is there anything further, Mr Maxwell?

PN58

MR MAXWELL: No, your Honour.

PN59

THE SENIOR DEPUTY PRESIDENT: Mr Howard?

PN60

MR HOWARD: No, your Honour.

PN61

THE SENIOR DEPUTY PRESIDENT: Very well. I'll adjourn the matter until 11.30 am tomorrow.

<ADJOURNED UNTIL FRIDAY 20 OCTOBER 2006 [1.05PM]