BP2006/3654, Transcript of Proceedings [2006] AIRCTrans 1247 (29 November 2006)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 16103-1

COMMISSIONER BLAIR

BP2006/3654

AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION
AND
BERENDSEN FLUID POWER PTY LTD
s.451(1) - Application for order for protected action ballot to be held
(BP2006/3654)

MELBOURNE

1.38PM, MONDAY, 13 NOVEMBER 2006

Hearing continuing

PN1

MR B TERZIC: I appear on behalf of the applicant union.

PN2

MR D MCDONALD: I appear on behalf of Berendsen, at your requestion, Commissioner.

PN3

THE COMMISSIONER: Thank you. This is an application under section 451 of the Workplace Relations Act 1996. The parties are aware that the matter is, if practicable, is to be listed within 48 hours of notification. Mr Terzic, notification was received 10 November and the Commission wasn't able to list it until this afternoon and it's listed for mentioning. It's the union's application. Do you wish to say anything about it at this stage, Mr Terzic?

PN4

MR TERZIC: Before I say anything about the application, I would like to pass a few comments on the Commission's new court facilities. There's one thing that struck me as soon as I first appeared here and that's the lack of wheels and castors on the chairs at the bar table. It can make one's job as an advocate a little bit difficult if one has to move around to confer with witnesses, persons instructing, organisers and others, and if castors could be placed on the chairs that would be greatly appreciated, and the other thing that I found less than satisfactory are the lecterns. They tend to flimsy and collapse under weight and also some advocates like to lean them in the course of giving presentations. If you leant on one of these you'd probably do yourself an injury with some weight on it at the same time.

PN5

Apart from that, everything seems fine, although I've heard a few people say the work around to some of the more distant court rooms and conferences rooms is a bit trying, but to change that, that would be too much of a big thing.

PN6

THE COMMISSIONER: That's part of the Get Fit program introduced by the Commission for its clients, Mr Terzic, the walk. But in terms of the castors on the chairs and the lecterns, that appears to be a source of concern by a number of people and your concerns will be passed on to the appropriate people within the Commission to see whether or not something can be done. They have raised both issues as possible Occupational Health & Safety issues as well.

PN7

Now, as I understand it, the bargaining period has been served?

PN8

MR TERZIC: Yes, Commissioner, the bargaining period was initiated in April from memory, I couldn't find the file as I left the office, and there have been some meetings. I only received very scant instructions about what's occurred. The approach the union generally takes to these sorts of applications, firstly to ascertain whether the employer will oppose the application and if the employer indicates an intention to oppose it, it's then, in my submission, appropriate that there be some effort by the parties to narrow down the issues in dispute so as to make proceedings more truncated and efficacious.

PN9

I've spoken to Mr McDonald this afternoon and he's raised with me the prospect of a challenge on, I would say, the section 461(1) basis, genuinely trying to reach agreement et cetera. Now, in relation to that, probably the most appropriate thing to do is to get further instructions from the relevant organiser who's trying to meet that disclosed criteria and ascertain what sort of evidence the applicant can bring to the Commission to attempt to satisfy the Commission that that test or those tests have been met and if, in my view, the evidence is somewhat deficient and I'm no position to give a calling on that just now, probably the most appropriate thing to do is simply to arrange for another meeting or meetings to see if there can be one last go to narrow down the differences between the parties, the terms of the agreement, and if that can't be done, then we'd seek to bring the application on for hearing.

PN10

By that stage the employer might decide to desist from raising that challenge. So at this particular juncture it might be appropriate to hear how the employer is to respond to the application and perhaps some sort of arrangement can be entered into with the parties with the Commission's help to ensure that this goes as smoothly as possible. If the Commission pleases.

PN11

THE COMMISSIONER: Thank you, Mr Terzic. Mr McDonald?

PN12

MR MCDONALD: Commissioner, we've, at this point, not had a written response from the union with regard to our last submission. While it's probably inappropriate for me to comment on whether we would challenge their application at this stage, until I've sought further information.

PN13

THE COMMISSIONER: How many meetings have occurred between the parties, can you recall?

PN14

MR MCDONALD: There have been a total of four meetings. Two were long before the original proposed document was produced. One of our concerns is that the document itself has some irregularities between it and the document we asked them to create, and the document's been in the hands of the union, so we're trying to get the document sorted out. At the same time we've made a fair and reasonable offer for a pay increase for the members which has been rejected, apparently.

PN15

THE COMMISSIONER: Right. That in itself doesn't necessarily mean that the parties aren't trying to reach an agreement. It just says that they can't reach an agreement.

PN16

MR MCDONALD: It means they can't reach an agreement at the moment, Commissioner.

PN17

THE COMMISSIONER: Yes. Is it practicable that in dealing with the application that it is that the Commission look at setting down some time on 23 November, which is a Thursday, to hear the substantive part of the union's application, but in the interim the Commission would expect that there would be at least three further meetings between the union and the company to see whether or not they can reach an agreement. If on the 23rd - and it would be something like 11 o'clock - the parties think the Commission may be of some assistance in having a conference under the chair of the Commission, it's happy to do that, or if they think the parties are just beyond reaching an agreement, then we'll deal with the substantive part of the application and you reserve your rights, of course, to argue, if you wish, that it shouldn't be granted, but ultimately the Commission will decide on the day. Is that a reasonable process?

PN18

MR MCDONALD: It sounds reasonable for me, Commissioner.

PN19

THE COMMISSIONER: Is that right, Mr Terzic?

PN20

MR TERZIC: Yes, Commissioner.

PN21

THE COMMISSIONER: What we'll do is we'll set the matter down for 11 o'clock on Thursday the 23rd for substantive hearing. If at that point the parties think the Commission may be of some assistance, it's more than happy to have a conference. The Commission would expect that in between today's date and the 23rd that there would be at least three further meetings between the union and the company to see whether or not they can reach an agreement on outstanding matters. Mr Terzic?

PN22

MR TERZIC: One other issue, Commissioner, if it looks like a hearing is needed on the 23rd, the union will contact your associate in the days prior to arrange for a notice to go out to be put on the employer's noticeboard so that the relevant employees can be notified as required under the Act, or that can be done - I'd just like to bring that issue to the Commission's attention.

PN23

THE COMMISSIONER: Okay, thank you. What might be appropriate, Mr Terzic, is that by Monday the 20th, if you could advise my associate that the matter may or may not go to substantive hearing, so if it is intended to, then my associate will issue the necessary paperwork to comply with the Act. If the position is put that it doesn't look like there's going to be a substantive hearing because the parties may wish to vacate the date because they're pretty close to reaching agreement, they just need a bit more time, then we won't issue the paperwork accordingly. Is that okay? So by close of business, if we could, Monday the 20th would be appreciated. All right, good.

PN24

Mr McDonald?

PN25

MR MCDONALD: Sorry, Commissioner. Our party, as an employer then is to advise the AIRC directly regarding these matters or do we deal directly with your associate?

PN26

THE COMMISSIONER: Well, it's the union's application and what will happen, of course, your role at this stage is simply to follow directions that might be issued in terms of notices that may need to be put on the boards et cetera, et cetera. At this stage the company doesn't need to do anything other than obviously meet with the union on at least three occasions and the union has the same obligation to see whether or not the parties can reach an agreement. Okay, good thanks. The Commission, at this stage, will stand adjourned till 11 am, Thursday,
23 November. Thank you.

<ADJOURNED UNTIL THURSDAY 23 NOVEMBER 2006 [1.49PM]