BP2006/3787, Transcript of Proceedings [2006] AIRCTrans 1291 (11 December 2006)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 16221-1

COMMISSIONER HARRISON

BP2006/3787

AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION
AND
AMCOR CARTONS ENFIELD
s.451(1) - Application for order for protected action ballot to be held
(BP2006/3787)

SYDNEY

2.46PM, WEDNESDAY, 29 NOVEMBER 2006

Hearing continuing

PN1

MS L BOOTH: I appear on behalf of the AMWU. I'm here appearing today with MR S VINE, who is the organiser from the AMWU, and the delegates MR M FLANNERY AND MR J TIMSANS.

PN2

MR D TRINDADE: I'm a solicitor and seek leave to appear for Amcor Packaging Australia Pty Ltd, the employer in the matter, together with MR M GALLAGHER who is the operations manager, and MS C BREWSTER who is the human resources manager.

PN3

THE COMMISSIONER: Thank you. Is there any objection to leave?

PN4

MS BOOTH: In the name of expediency, no, Commissioner.

PN5

THE COMMISSIONER: Thank you. Leave is granted. Ms Booth?

PN6

MR TRINDADE: Sorry, Commissioner, if I might add that Ms Brewster is actually in another matter before Commissioner Cargill at the moment, and so subject to leave of the Commission may seek during the course of the hearing to absent herself to go and attend before Commissioner Cargill.

PN7

THE COMMISSIONER: Thank you. Yes, I noticed Amcor on the list in Sydney and also in Melbourne today, very busy. Ms Booth?

PN8

MS BOOTH: Thank you, Commissioner. Commissioner, in respect to the application you have before you the AMWU respectfully submit that the union has met all of the procedural and substantive requirements of Division 4, Part IX of the Workplace Relations Act in regards to the application, that the application for protected action ballot should be granted. Just in terms of standing in the procedural requirements, Commissioner, the AMWU has standing to bring this application pursuant to section 451 of the Act. In terms of the application the AMWU assert that they have met all the requirements under section 452, in that the application has been made on the required form and that all of the required information, including particulars concerning the question to be put, the type of employees and the identity of the nominated ballot agent has been provided.

PN9

Commissioner, it has been raised with us today that there is some concern on the part of the employer in regards to whether all employees or other relevant persons have had a reasonable opportunity to make submissions in relation to this application. I understand it is the intention of my colleague here to provide submissions in regard to that. I wish to initially just draw the Commission's attention to a series of mass meetings which were conducted by the AMWU within, my understanding, the last fortnight.

PN10

Those mass meetings covered all four of the shifts at the relevant site, they were conducted and, my understanding is, very well attended by staff for that site. In the course of those meetings staff were made aware of the applications and provided information in regards to the nature of the applications and what would occur once the applications had been made. And certainly all staff were made aware that an application involving the matter being heard before the Commission, and two delegates were in fact authorised by those meetings to attend this hearing here today.

PN11

It's on that basis, Commissioner, that the AMWU assert that the requirements under the Act, and more particularly the requirement under section 457, Part II of the Act has actually been met in this case despite the difficulties arising out of the shift arrangements at Amcor.

PN12

THE COMMISSIONER: Yes. It is a three shift operation I take it?

PN13

MS BOOTH: My understanding is a four shift operation, Commissioner. And certainly the two mass meetings took place to my understanding at 6 am, not 6 pm, to which all four shifts were covered.

PN14

THE COMMISSIONER: And how many members do you have?

PN15

MS BOOTH: Sixty six members, Commissioner. I understand there were very good attendance at those meetings.

PN16

THE COMMISSIONER: Not precisely, but can you give me a bit of a history of the negotiations and what led up to this point?

PN17

MS BOOTH: Certainly, Commissioner. Within the application an affidavit was provided by Mr Vine providing information in regards to the negotiations. The negotiations commenced officially in May of this year, and as you can see from item 8 on the affidavit which is attached to the application there's been 12 meetings that have been held between the parties on 22 May through to
15 November, which was the most recent meeting.

PN18

Now, as also indicated within the affidavit provided by Mr Vine at item 10, those meetings have led to a great deal of agreement between the parties in regards to an enterprise agreement or a certified agreement. However, raised at item 10 there is a number of outstanding matters of disagreement between the parties. Essentially a difference over the pay increases that the employer should pay over the term of the agreement, changes to the redundancy payments, and also sick leave, changes to sick leave arrangements, Commissioner.

PN19

As is further noted at item 11 of that affidavit, at the meeting of 2 November Mr Vine and the delegates raised the possibility of reducing the previous demand for 4.5 per cent pay increase to 4.25, and also note other proposals in order to come to some arrangement or come to some deal with Amcor. When the parties met again on 15 November that offer was refused, and thus we find ourselves here today, Commissioner.

PN20

THE COMMISSIONER: Thank you. Ms Booth. Mr Trindade?

PN21

MR TRINDADE: Thank you, Commissioner. Commissioner, we do raise as a preliminary issue the issue of section 457 of the Act. Section 457 of the Act does require the Commission, in exercising its powers in respect of this application, to act as quickly as practicable, and as far as reasonably possible determine all applications within two working days after the application was made. There's an important jurisdictional prerequisite however that is dealt with in section 457(2) and that's the Commission must not determine the application for a ballot order until it is satisfied that the applicant has complied with section 454, and that the persons referred to in subsection 458(1) and (2) have had a reasonable opportunity to make submissions in relation to the application.

PN22

And as the Commission would be well aware those persons referred to in 458(1) and (2) are in effect the proposed balloting agent and the relevant employees. And the relevant employees are in effect the members of the union who are employees of the company and who are proposed to be covered by the proposed industrial action. Commissioner, the fundamental issue we have here is that there are three main areas at this site where the employees are located. There's a printing area, a cutting area and a finishing area, and in particular in relation to the printing area that operates with two 12 hour shifts and it operates on a rotating shift based going from 6 pm on Sunday to 6 pm on Saturday, so it's a continuous operation for those six days. Twelve hour shifts, start time 6 am and 6 pm.

PN23

Commissioner, this application was lodged on the 27th. The Commission acting with due haste and expedition sent a listing out at about, I think the fax says about 4.21 pm on the 27th. One of the directions was that the company place a copy of the notice of listing together with the attached notice to employees and together with a copy of the application on noticeboards. And that we say is clearly an appropriate course to deal with. That's designed to enable the Commission to be able to satisfy itself that the relevant employees have had a reasonable opportunity to make submissions, and in fact the notice invites them to, if they wish to, to make submissions and to attend today.

PN24

That was posted, on my instructions, around mid morning, around 11 am on the 28th, posted on the noticeboards. That was right in the middle of a day shift. Now, the company has four, in effect four shifts, so there's an A shift, a B shift, a C shift and a D shift. And I don't this is disputed factually, Commissioner, that C shift were on day shift at that time. So they've started at six in the morning on the 28th, they don't finish until 6 pm. So say they may have seen it during a break on that shift or they may have seen the notice at the end of their shift.

PN25

Now, they'd have - well on my calculations about 20½ hours time between the end of their shift and the hearing here today at 2.30 pm in order to consider whether they wish to make submissions, come along and represent their views to the Commission. And if they are the only group of employees then I don't think we'd have a particular issue. I mean, 20.5 hours is not a large amount of time, but in the context of the legislative framework that requires the Commission to react as quickly as practicably and as far as possible determine the matter within two days, we'd say that would be a significant period of time for those employees.

PN26

The problem is when we get to the other shifts. A shift started their shift, the first shift after the notice was posted at 6 pm yesterday, so came off shift at 6 am this morning. So you're someone who has worked a 12 hour shift, you may have seen the notice at the end of your shift, and the first opportunity you have - the first opportunity to do anything about it is at 6 am this morning, eight hours ago, eight and a half hours ago. And these are people who are going back on shift at 6 pm tonight. So, Commissioner, I think from that perspective we'd say the Commission couldn't be satisfied that those people have had a reasonable opportunity to consider the notice from the Commission, to consider the directions, to consider the application and to decide whether they wish to make submissions to this Commission and to attend.

PN27

Worse for B shift, Commissioner, because B shift didn't commence until 6 o'clock this morning, so at best they might have seen the document when they - on the noticeboard when they arrived at work this morning. They don't finish till
6 o'clock, so by the time, if the matter is heard today, they won't have an opportunity at all. They may not have even seen the document. Now, I think for the purposes of the Commission, I think the Commission - we don't suggest that the Commission should take into account the fact that people may not see the document. I think we can assume that people may see the document either at the start of their shift or at the end of their shift or some time during it. But those B shift people simply wouldn't have an opportunity to come and make submissions if they wished.

PN28

And the situation was even worse for D shift, Commissioner, because D shift aren't rostered on until 6 am on Friday 1 December. So the application, if indeed is heard today, would have been long gone by that stage. And what we'd say in respect of that, Commissioner, is it is a jurisdictional prerequisite. The Commission must not determine an application for a ballot order until it is satisfied that those persons have had a reasonable opportunity to make submissions in respect of the application.

PN29

It's not a mere technicality, Commissioner, it is a substantive matter that the Commission - and a substantive jurisdictional hurdle for the Commission in determining an application. So the course we would urge upon the Commission is that the matter be adjourned today and it be relisted. Now, we think sensibly if D shift being the last shift who will have had the opportunity to see the order and make a decision as to whether they wish to make submissions and be heard, if they see it on Friday morning and they come off shift on Friday evening, we would suggest that there would be no impediment to the matter to, say go ahead on Monday afternoon. That would give them time to have prepared. Simply we don't think it can go ahead this week because of simply the timing of it.

PN30

I hear what my friend says across the bar table about there being mass meetings that occurred, and if I can get my friend's words correct, in the last couple of weeks. Commissioner, we'd say that's not sufficient, that's not the same as people being aware of, one, that there is an application being heard at 2.30 pm at the Commission at 80 William Street in Sydney. We'd say it's not the same thing at all. Because what happens at a mass meeting, whether people choose to speak up or not, is simply - it's a different thing as to whether people would have had the opportunity, one, to read the application, two, to read the directions from the Commission, three, to read the notice that the Commission prepared in order to satisfy itself that a reasonable opportunity had been given, and then to make an informed decision as to whether they wished to appear and make submissions.

PN31

So what we'd say in effect of that, Commissioner, is that the Commission can't be satisfied that the matter can be heard and determined today. And in those circumstances we would say that it's appropriate that the Commission adjourn the matter, noting that the Commission must deal with the matter - and it doesn't say that it's an absolute, the Commission must deal with it within 48 hours. It says as quickly as practicable and as far as is reasonably possible. And as far as reasonably possible is clearly qualified by the next part of that clause, subsection 2, which provides a stern legislative prohibition on the Commission acting, we'd say with undue haste, in circumstances where all of the relevant employees have not had a reasonable opportunity to make submissions.

PN32

And in respect of that, Commissioner, what we'd say is that the reasonable opportunity to make submissions is an opportunity to come along and hear what - inherent in the reasonable opportunity to make submissions, the reasonable opportunity to come along and hear what the submissions and the evidence of the parties are, and to, if they so desire, to cross-examine witnesses and to make those submissions and to address any submissions that are raised orally. We'd say it's not simply a case of going through the motions of saying to people, do you want to be heard?

PN33

Now, whether or not anyone makes an application to the Commission, frankly, is irrelevant, Commissioner. It's the fact that the Commission must be satisfied that those people have had a reasonable opportunity. So as a preliminary matter, Commissioner, we would say that the appropriate course today would simply be for the matter to be adjourned until - and we'd suggest Monday afternoon. We would be in the Commission's hands as to whether any other directions were wished to be made, but we would propose that course. And we'd say that that still complies with the requirements of the Act to hear the matter as - to deal with the matter as quickly as practicable and to as far as possible deal with the matter with a great degree of urgency.

PN34

We're not seeking that the matter be pushed off into the distance. It's certainly not a delaying tactic. We say it's to comply with the substantive requirements of the Act that the matter be heard on a date that is not far advanced, and we'd suggest perhaps Monday afternoon being a good time. That would enable someone who comes off shift when you're on a D shift at 6 pm on Friday night, they have the weekend to consider and to consider whether they wish to make submissions, and that is their reasonable opportunity. And, indeed, for the other people who are either on shift at present and haven't had the reasonable opportunity before now, we'd say that also applies to them.

PN35

So those are the submissions we would make, Commissioner, in respect of why the matter shouldn't proceed we would say with undue haste today, and we should say that the Commission should take the appropriate course to comply with the legislative preconditions and have the matter adjourned until Monday afternoon.

PN36

THE COMMISSIONER: I take it that's your only concern is it?

PN37

MR TRINDADE: That's our concern in relation to the time. And we do have a concern in relation to the application, and that is that there's another precondition in relation to - or there's another aspect of an application, and that is that there are other conditions for the granting of an application for an order for a secret ballot, and they're set out in section 461. But principally the two issues that we intend to raise were the matters, substantially heard and determined, are that we say the union hasn't during the bargaining period genuinely tried to reach agreement with the employer, and we say that the union isn't genuinely trying to reach agreement. And those are the preconditions set out in subsections (a) and (b) of section 461(1) of the Act, your Honour. So those are the principal issues.

PN38

There's also an issue we would say in respect - and we've raised this with my friend - in respect of the wording of the ballot application - the ballot question to be put, and that is if the Commission looks at the question that's proposed to be put, it's a rolled up question. It's asking employees who are members of the union who are the subject of the proposed industrial action to say do they authorise a whole range of things? And we say there's an eminent problem with a rolled up question, is that it doesn't give an employee who, for example, might say, well, I'm happy to authorise this form of industrial action, but I'm not willing to do this. For example, I'm happy to agree to a four hour stop work because, yes, I know that under the Act I can't be paid for that and therefore I lose four hours, but I'm not entirely happy with the idea of an indefinite strike because that's going to, you know, put me and my family under severe financial pressure for example, Commissioner.

PN39

So we say that the question being asked doesn't with any clarity give an employee the ability to say yes to parts and no to others. And what we say, that that in a way skews the whole outcome, because if someone says yes to that whole rolled up question, the Commission can't be satisfied that they're saying yes to all aspects of it or they're saying yes to parts. We don't understand, we're not in the minds of employees as to whether they understand that they are authorising all of it if they say yes, or they are simply saying that yes, I think we should take some of this.

PN40

Now, that's a matter we would say that may be addressed by my friend in terms of a redraft. It's not an issue that we would say would stop the application dead unless simply my friend is adamant that that is the form of the question that is to be put and that's it. So those are the more substantive issues we raise, and we say that if the Commission takes the course we are urging on it, that when the matter is heard and determined, that those are the issues that we would raise, and we'd seek to obviously lead evidence that would support those submissions, Commissioner.

PN41

THE COMMISSIONER: Thank you. Ms Booth?

PN42

MS BOOTH: Commissioner, perhaps it might be helpful if I address first the question again of notice as that appears to be a bit of a question that needs to be resolved in a more timely fashion. Again, Commissioner, I draw attention to the series of meetings that were held by the AMWU. The requirements in terms of the obligations of this Commission to act expediently talk about doing so in a practical fashion, stipulates that it do so where possible within two working days, and quite specifically within section 457(2) paragraph (b) it talks about a person having a reasonable opportunity to make submissions.

PN43

It doesn't talk about a person having a guaranteed opportunity to see the listing on a noticeboard at the workplace. It implies that someone is made aware of the fact that this matter will be heard before the Commission and that they can appear before the Commission if they so desire. It's implied that they are aware of what this application means and how they may participate or make submissions in regards to this application. Certainly in regards to the submissions we have heard from Amcor, they really fail to appreciate the communication that is available for AMWU members of which are being a member of the union.

PN44

We have two delegates here who both were made aware of this hearing before yourself at the first opportunity. In fact Mr Timsans was actually working on Tuesday night - Monday night, when he was made aware of the listing. He informed all of those people within his shift. So the fact that the listing was only put on the noticeboard and the relevant notice was only made available at 11 am the next morning doesn't truly reflect when that information was made available to AMWU members.

PN45

THE COMMISSIONER: And what shift is Mr Timsans going to?

PN46

MS BOOTH: I believe he is using the matrix that has been drawn. I believe he's C shift, Commissioner, and so he returns tomorrow night. So he would be part of the group who would be considered not to have received notice by virtue of having finished at - - -

PN47

THE COMMISSIONER: I think Mr Trindade concedes that C shift has had 20 hours.

PN48

MS BOOTH: Yes, okay. Certainly what that emphasises, Commissioner, is the fact that there is information made available to members not just by that information being put on the noticeboard, but by virtue of delegates informing members. And certainly I think insufficient weight has been put on the information provided to members in the mass members meetings conducted by the AMWU. Certainly it was indicated that the dynamic of membership meetings might not be consistent with that idea of people being given a reasonable opportunity to make submissions before this Commission.

PN49

With all due respect I believe that doesn't truly reflect the information that's provided at AMWU members' meetings. The information provided if necessary indicate that information, Commissioner, was information in regards to the application and the process attached to that application and what that meant in terms of the membership. Again, those meetings were all attended, and the delegates are on site and are available for any members who wish to seek further information or clarification.

PN50

So certainly it's the position of the AMWU that members have had an adequate opportunity to receive information in regards to the application and the matter being heard before the Commission this afternoon. And certainly the proposal that's been made, that this matter be deferred until Monday of next week, and particularly the additional concession that that would give people the weekend, an opportunity to have a think about whether they wish to appear, that does appear inconsistent with the two days that's provided for within the Act, Commissioner. It doesn't say that people would be given an opportunity to go home and discuss with their spouse. It indicates they simply be made aware.

PN51

THE COMMISSIONER: What do you say about the form of the question to be put that you have proposed?

PN52

MS BOOTH: Commissioner, this is a form that has been used in a number of ballots by the AMWU nationwide. Certainly the AMWU has used both forms of a question being a rolled up form, and also being a much more series of questions. Certainly in regards to the suggestion that the current rolled up question may cause a skewing. In fact if it is going to cause a skewing, Commissioner, I would suggest it would cause a skewing in favour of no rather than in favour of yes. If someone found any part of the question unpalatable there is a greater likelihood that they would vote no to the entire question than vote yes, even though they disagreed with some aspect of the question.

PN53

So, Commissioner, certainly the AMWU has posed this question in consultation with its membership and in consultation with its delegates. This is not a site which has a membership that's industrially naïve. They do understand the nature of these industrial affairs, and there's been a lot of communication provided to them. So certainly it's the view of the AMWU that this is not a question that would cause confusion amongst our membership. And in fact if there's any danger of skewing it's actually against a successful ballot.

PN54

THE COMMISSIONER: Well, in those circumstances might you be prepared to reconsider the form of the question?

PN55

MS BOOTH: Certainly, upon advice from this Commission certainly, as I've indicated, the AMWU has used a format which is more drawn out in its nature, there's a series of questions. I can seek instructions, Commissioner, but certainly I don't understand in this case that there would be an objection to making the question a more extensive question rather than the rolled up format.

PN56

THE COMMISSIONER: I noted in a recent ABC, CPSU, MEAA ballot that there were a series of options and the members voted yes or no to the options, and the results varied, but there was a clear preference overall to take action, that there was less enthusiasm for an indefinite stoppage for example. So I thought on that occasion that that was a more accurate way of getting an expression of opinion from the membership, and in fact I would ask that you take that on board in terms of looking at a redraft of the question.

PN57

MS BOOTH: Certainly, Commissioner. As I've indicated, it's certainly the format we've used at other sites. I'll seek further instruction on that.

PN58

THE COMMISSIONER: Thank you. Mr Trindade, I think other members of the Commission have said in recent times that the provisions of the Act are essentially facilitative to enable a registered organisation, in this case the union, to conduct a secret ballot, and that the Act should be used in the way which facilitates that approach in accordance with the Act. I don't suggest that you are trying to delay the union's rights in this matter, but I do take on board the fact that this is a fairly unique workplace in the sense of the shift operations. It's not a nine to five operation or a 7.30 to 4 o'clock operation. And that for the sake of perhaps a relatively short period of time it might be wise to proceed with caution.

PN59

I don't necessarily agree that the matter should be put off until Monday or next week, but I would suspect that by this time tomorrow that there should be some indication, if people affected by the order were to take up the opportunity provided by the list - by the placing of a notice on the noticeboards, and to that extent I propose to adjourn the application until 2 o'clock tomorrow afternoon, and at that time hear further submissions from Amcor in respect of whether the union has genuinely tried to reach agreement.

PN60

I would assume by that time that the matter of the controversy over the question to be asked might be resolved, and I think overall the Commission will be in a much better and clearer position to be able to address the question of an appropriate order to allow a protected action ballot to be conducted some time next week. Is there any contrary view to that course that I propose?

PN61

MS BOOTH: No contrary view, Commissioner. Just in regards to the matter being listed tomorrow, in order to assist in the expedient resolution of this matter perhaps if Amcor could provide further - perhaps an outline of contentions regarding those matters which they feel may be prohibited content so that it can be dealt with in a more expedient way tomorrow, and that appropriate witnesses can be made available if witnesses are required.

PN62

THE COMMISSIONER: Yes. Did I miss something? Did you raise the question of prohibited content?

PN63

MR TRINDADE: That is - essentially the prohibited content is part and parcel of the issue of genuinely trying to reach agreement, Commissioner. It's a matter that I did raise with my friend before the hearing, so she properly raises it as a more fleshing out of those issues. Commissioner, in respect of that course we obviously would - we hear what the Commission says about wanting to proceed tomorrow. We still urge upon the Commission the course that we propose, and we say that if the matter does proceed tomorrow then potentially there is a very strong argument that the jurisdictional prerequisite hasn't been met. It's not a matter that we resile from, Commissioner, so we still do press for the matter now.

PN64

We say in a context we understand the facilitative nature of the provisions, but we don't think the delay is of such a moment, of such a period of time, particularly when the Commissioner can see the dates for the ballot that are proposed are extending out for the period until, I think it's - is it 8 December, the ballots? So the ballot is proposed to open on, I think it's either 5 or 6 December and close on
8 December. So it's not proposed that things are going to happen other than the provision of lists before Friday anyway, Commissioner.

PN65

So we'd say that if the matter was adjourned till Monday it wouldn't - we'd say it's not a course that is going to unduly delay. And we'd suggest that there would be no impediment for the matter to be heard and determined on Monday. So we still do maintain our position, Commissioner, but ultimately it's a matter for the Commission to rule upon.

PN66

THE COMMISSIONER: I have some other difficulties on Monday with other matters already listed. That's part of the reason I'm trying to reschedule this application, to ensure that at least the matter can progress in a facilitative fashion, and also bearing in mind my diary on Monday as well.

PN67

MR TRINDADE: Commissioner, we understand those issues. Obviously we'd suggest to the Commission in that regard that the requirements of the Act, the jurisdictional prerequisites are perhaps the most important thing, and that if the matter had to be reallocated to another member of the Commission or, indeed - I haven't received specific instructions, but I'm sure my instructions would tell me that the company would be certainly able to sit late or sit out of hours or, indeed, sit at a time that would be appropriate to the Commission to facilitate that. We certainly don't have any issue with those things, and we would make whatever provisions are necessary to ensure that we can be there.

PN68

But our main concern is that if the matter does go ahead that it goes ahead in a manner where it couldn't be said by anyone down the track that that particular jurisdictional prerequisite hadn't been met.

PN69

THE COMMISSIONER: Yes. Well, that issue may be resolved by the form of the order that might issue after tomorrow as well. So I think there's enough flexibility in the order, in a potential order itself to resolve some of these issues that have been raised. But in terms of timetabling I will proceed tomorrow at
2 o'clock, and some of these issues might be able to be resolved by the timetable and the form of the order that eventually is issued.

PN70

MS BOOTH: Sorry, Commissioner, just in regards to my initial point that Amcor do provide information regarding their outstanding objections prior to the hearing tomorrow, if that's possible.

PN71

MR TRINDADE: Commissioner, we would be in a position to do that. Obviously if it's tomorrow we'd need to do that at some time. I'm not sure about the possibility of getting those finished this afternoon, but I'd suggest perhaps by some time tomorrow, perhaps if it was - would 10 am be - - -

PN72

THE COMMISSIONER: A best endeavours approach.

PN73

MR TRINDADE: We'll certainly make every effort, Commissioner.

PN74

MS BOOTH: Thank you, Commissioner.

PN75

THE COMMISSIONER: Thank you. If there's nothing further I'll adjourn until 2 pm tomorrow. Thank you.

<ADJOURNED UNTIL THURSDAY 30 NOVEMBER 2006 [3.23PM]