BP2006/2625, Transcript of Proceedings [2006] AIRCTrans 773 (30 May 2006)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 15050-1

COMMISSIONER SMITH

BP2006/2625

AUSTRALIAN MUNICIPAL, ADMINISTRATIVE, CLERICAL AND SERVICES UNION
AND
GAY MEN’S HEALTH CENTRE INC.
s.451(1) - Application for order for protected action ballot to be held
(BP2006/2625)

MELBOURNE

4.00PM, TUESDAY, 16 MAY 2006

Hearing continuing

PN1

MR N HENDERSON: I appear for the ASU and with me is MS W STRACKE.

PN2

MR G JOHN: I seek leave to appear on behalf of Gay Men's Health Centre Incorporated.

PN3

THE COMMISSIONER: Any objection to the application for leave,
Mr Henderson?

PN4

MR HENDERSON: No objection, Commissioner.

PN5

THE COMMISSIONER: Leave is granted, Mr John.

PN6

MR JOHN: Thank you.

PN7

THE COMMISSIONER: Mr Henderson?

PN8

MR HENDERSON: Yes, thank you, Commissioner. This is an application under 451 of the Workplace Relations Act for a protected action ballot to be conducted. The application is made in relation to negotiations for a collective workplace agreement between the ASU and the Gay Men's Health Centre and the application of the ASU has nominated the Australian Electoral Commission to conduct the ballot. The application has been filed and served in accordance with section 454 and I'm in a position to hand up copies of a fax sheet in relation to service on the Gay Men's Health Centre and an email copy in relation to service on Mr John Nallor of the Australian Electoral Commission. If the Commission pleases.

PN9

THE COMMISSIONER: Yes.

PN10

MR HENDERSON: The service was effected within 24 hours of the filing of the notice as required by the Act.

PN11

THE COMMISSIONER: Good.

PN12

MR HENDERSON: The ASU received directions from the Commission in relation to this matter from yourself, Commissioner, on the - today in fact, this morning, and in relation to those directions, the ASU forwarded an email containing a spread sheet setting out our members' details or declaration as required by regulation 9.9 (3), chapter 2 of the regulations to the Australian Electoral Commission today and somewhere here I have a copy of the email and a copy of the declaration which I'll hand up. If the Commission pleases.

PN13

THE COMMISSIONER: Did you read my order?

PN14

MR HENDERSON: Sorry?

PN15

THE COMMISSIONER: Did you read my order?

PN16

MR HENDERSON: Yes I did but - - -

PN17

THE COMMISSIONER: Well in particular 3.4.

PN18

MR HENDERSON: 3.4. Well we've not received anything.

PN19

THE COMMISSIONER: No and it's something that I'm content to amend but it just appeared to me that on occasion if two lists simply go to the electoral officer it's very hard to reconcile those.

PN20

MR HENDERSON: Yes. Well - - -

PN21

THE COMMISSIONER: Now I'm happy to hear submissions on this matter.

PN22

MR HENDERSON: Well in this case there were only 16 employees so it's not a mammoth task but I understand - - -

PN23

THE COMMISSIONER: Because it does raise a number of issues but the order directed the employer to send a shortened version of the list to the union from which it could then base its list as to members.

PN24

MR HENDERSON: Yes. Well I see how that follows but I've slavishly followed 3(a) and of course it doesn’t say to adjust the lists.

PN25

THE COMMISSIONER: No, that's all right.

PN26

MR HENDERSON: But in this case, Commissioner, I think we are able to avoid any difficulties because there are so few employees involved.

PN27

THE COMMISSIONER: All right. Well I might amend my order in which case by deleting 3.4.

PN28

MR HENDERSON: Yes, thank you, Commissioner.

PN29

THE COMMISSIONER: That was done to try and - but if there's only 16 employees and it's not a difficult task then - - -

PN30

MR HENDERSON: Yes, that's right, so it shouldn’t be and we've spoken to the Electoral Commission and we know that they have the material.

PN31

THE COMMISSIONER: All right. All right, well I'll issue an order deleted 3.4 from the order that I issued on the 15th.

PN32

MR HENDERSON: Now, Commissioner, we forwarded to you a - - -

PN33

THE COMMISSIONER: Draft order.

PN34

MR HENDERSON: Draft order.

PN35

THE COMMISSIONER: Yes.

PN36

MR HENDERSON: Before I go to that and I'm not aware what position the employer is taking at this stage but I'd simply make the observation at this point that Ms Stracke has had the carriage of the negotiations and is in a position to give witness evidence should that become necessary.

PN37

THE COMMISSIONER: In relation to whether or not there has been genuine attempts to reach agreement?

PN38

MR HENDERSON: Yes, Commissioner, but at this point I'd simply submit that there have been genuine attempts to negotiate an agreement with the employer over a long period of time dating back to 2004 and that we have been genuinely attempting to reach an agreement and that's evidenced by the fact that the matters in issue have reduced over that period of time down to I suppose the pointy end of the agreement. The agreement, in our submission, is one which could not be considered to be part of any pattern bargaining approach taken by the union and I'd simply rest on those very general submissions subject to what Mr John has to say.

PN39

THE COMMISSIONER: And you say it doesn't include any prohibited content matter.

PN40

MR HENDERSON: That's correct, Commissioner, and indeed that's the subject of the declaration which was filed by the union with the application.

PN41

THE COMMISSIONER: Yes.

PN42

MR HENDERSON: Now, Commissioner, we've provided a draft order and I've provided that to Mr John this afternoon which sets out a number of matters. It doesn't set out a time table which is something which will need to be dealt with this afternoon.

PN43

THE COMMISSIONER: Yes.

PN44

MR HENDERSON: We are seeking an attendance ballot and pursuant to section 462(2) we say that an attendance ballot would be appropriate in this case because of the same number of employees. The fact that they're employed in two work locations which are quite close to each other and it would be the most convenient and efficient way to conduct the ballot at the earliest possible occasion and this enable the ballot to be conducted and concluded within the time frames envisaged by the legislation. Other than that, Commissioner, I'm not sure what else I would need to put to you at this point subject to what Mr John has to say about the matter.

PN45

THE COMMISSIONER: Thank you. Yes, Mr John?

PN46

MR JOHN: If the Commission please. Commissioner, I'm in something of a difficulty here because I've only been able to get limited instructions from the executive officers of the Gay Men's Health Centre and let me explain what the problem is because it's a problem which affects the ability of the organisation to comply with a number of the directions that were included in your order.

PN47

THE COMMISSIONER: You're moving offices?

PN48

MR JOHN: The main facility of the organisation in fact has, at Claremont Street in South Yarra, has been closed, the staff were aware of that closure or have been aware of that closure for four to six weeks. The closure is necessitated by the fact that the building has been suffering from roofing problems for some time. Finance to remedy that situation has at last been obtained. The advice that the centre had from the contractor was that asbestos was present in the building. The building has in fact been closed. I'm advised that it's unlikely to be available before 29 June.

PN49

Now the staff who normally are employed in that building are either now working from home on projects that have been assigned to them or in the process of travelling to Woolongong for a national convention of educators which will take place in Woolongong over this weekend or have been relocated to the Positive Living Centre in Prahran. I'm advised that the employees who've been located to the Positive Living Centre in Prahran would normally be engaged in the findings or IT functions. Now the issues that have arisen this morning since I was consulted by the organisation are these.

PN50

Firstly, they've made every effort to comply with the directions to the extent that detail of the orders and directions have been posted on a noticeboards at Prahran but given the fact that substantial numbers and the most substantial number of employees are either absent travelling to Woolongong or are working from home, the practical effect of the posting of those orders and directions on the noticeboard is low. Secondly I've been able to ascertain that the records that would be necessary to put together the list described in 3.1 are located on a server that is the building at Claremont Street in South Yarra.

PN51

The process of removal of asbestos from the building is underway and there are severe doubts about the occupational health and safety considerations that might be involved in an employee returning to the building and spending the necessary period of time to examine the records and produce the list. I'm told that remote access to the service inside the building is not possible. The move to the Positive Living Centre at Prahran was undertaken on the basis that only those files that the Gay Men's Health Centre thought would be reasonably called upon for the next two or three weeks were in fact made available in some form whether they were loaded onto laptops or transferred in some form, I'm not sure of. But only those files that were made available that were necessary were taken across.

PN52

So the problem is that with the best will in the world we're not able to get to the records that would be necessary to complete all of the specifications in 3.1. We certainly, I'm advised, are able to make a stab at naming the employees and simply it's likely that if there are only 16 involved we could come to agreement with the ASU about that. But as to address, as to date of birth, we don’t have any certain record capability to enable us to complete those specifications in 3.1. It is true as Mr Henderson has indicated that we've been negotiating with the ASU for a period of something like two years coming up to two years, about the making of an enterprise agreement covering the Gay Men's Health Centre.

PN53

We’ve been unable despite the fact the comprehensive offering view of the employer has been made to the union, we've been unable to reach agreement. I don’t have any instructions which would cause me in any way to challenge the proposition that genuine attempts have been made to conclude the negotiation but simply put from the employer's point of view where in a situation in which what the employer has offered the union finds unacceptable. Whether or note any further interventions would assist is a matter of conjecture.

PN54

Now as to the draft order that Mr Henderson has tendered I'd don’t have sufficient instructions to enable me to put a sensible view to you with regard to that draft order or its contents. In particular I do not have a sensible view to put to you in respect of the question to be put to the relevant employees. I don’t know whether that question is regarded by my client as being a fair question in all of the circumstances or not. Now there is one other remaining issue and it's an issue that may give to rise technical considerations. The Gay Men's Health Centre Incorporated is an entity that employs employees. It is an entity that owns property, principally the property at 6 Claremont Street, South Yarra, whose roof is being replaced and whose asbestos hazard is being addressed but the Gay Men's Health Centre does not conduct any business.

PN55

The business of the Gay Men's Health Centre is conducted by the Victorian Aids Council Incorporated, a separate business entity, and the Victorian Aids Council is a respondent to the Social and Community Services Award as is the Gay Men's Health Centre. The Gay Men's Health Centre was only made a respondent to that award in 2005 as a result of proceedings before Commissioner Cribb. The union in the course of the negotiations was advised of this situation of the two entities and of the employment consequences. All the cards were on the table and the Victorian Aids Council and the Gay Men's Health Centre offered no objection to Mr Cribb making a roping in order, adding the Gay Men's Health Centre to the respondency list for the Social and Community Services Award.

PN56

The issue here is you can have this ballot take place, you can have the bans and limitations put in place, they would not affect the Gay Men's Health Centre, they would affect the operations of the Victorian Aids Council.

PN57

THE COMMISSIONER: How is that, I'm sorry, that you say there are employees at the Gay Men's Health Centre?

PN58

MR JOHN: They are employees of the Gay Men's Health Centre. The Gay Men's Health Centre agreement - - -

PN59

THE COMMISSIONER: And the agreement is to cover those employees?

PN60

MR JOHN: Yes, the Gay Men's Health Centre conducts no business. It doesn’t offer a single service.

PN61

THE COMMISSIONER: What do you say is that impact of that?

PN62

MR JOHN: Well the impact of it is in my mind a question of just if the ballot was a positive ballot from the union's point of view, endorsed the union to take industrial action, then that industrial action would be taken against the Gay Men's Health Centre. But the Gay Men's Health Centre, it would have no effect on the Gay Men's Health Centre at all, that's the issue I'm raising.

PN63

THE COMMISSIONER: Its own employees conducting industrial action against it would not impact upon it?

PN64

MR JOHN: No. It would impact against the Victorian Aids Council.

PN65

THE COMMISSIONER: Because its employees under some arrangements are performing duties for the Victorian Aids Council.

PN66

MR JOHN: That's right. As to what that arrangement is, the details, I'm unaware.

PN67

THE COMMISSIONER: It might have impact upon the contractual relations between the two, mightn't it?

PN68

MR JOHN: It might. That's the extent.

PN69

THE COMMISSIONER: Which would give rise to why economic force is used.

PN70

MR JOHN: Yes.

PN71

THE COMMISSIONER: Yes. I see. All right, thank you, Mr John.
Mr Henderson?

PN72

MR HENDERSON: Thank you, Commissioner. In relation to that matter it seems to me that would give rise to potentially some activity by the Aids Council if they wanted to take it in relation to industrial action but I don’t see that it impacts on the proposal that the employees take industrial action against the Gay Men's Health Centre but I do take on board the submissions that Mr John has made about the difficulties that his client has had and I've discussed that with
Ms Stracke while Mr John was on his feet. It seems to me, Commissioner, that given the problems with the building at Claremont and the disposition of the staff it may well be that all employees haven’t had that formal notice of the application which the Act envisages and which Vice-President Lawler observed was necessary in order to given people an opportunity to attend these proceedings.

PN73

THE COMMISSIONER: Indeed, yes.

PN74

MR HENDERSON: Now I note, Commissioner, that section 452 sets out at subsection 1 that there's some obligation on the Commission to - - -

PN75

THE COMMISSIONER: I'm impressed the way these new section just trip of your tongue, Mr Henderson.

PN76

MR HENDERSON: Well, I've just got it open here in front of me, but I think that's the - - -

PN77

MR JOHN: I wouldn’t be able to tell the difference.

PN78

MR HENDERSON: - - - wrong section backed up.

PN79

THE COMMISSIONER: 452, is it.

PN80

MR HENDERSON: 457, sorry.

PN81

THE COMMISSIONER: 457, yes.

PN82

MR HENDERSON: 457(1) imposes on the Commission some obligation to attempt to resolve these applications within two working days.

PN83

THE COMMISSIONER: So far as is reasonably possible.

PN84

MR HENDERSON: so far as is reasonably possible and also having regard to subsection (2), whether the persons referred to in 458(1) had a reasonable opportunity to make the submissions so it would seem that we haven’t got over that hurdle that Vice-President Lawler identified in the ANF case. So it would seem to me in this case it would be an appropriate matter for an adjournment notwithstanding the time table set out in section 457. The only matter I would then raise is for Mr John to indicate when it might be that his client would be in a position to comply with the directions such that the matter could come back on.

PN85

I mean, I think, I can safely say that having waited two years the members will be prepared to wait a lit bit longer but perhaps not too long but you know, Commissioner, we're prepared to be sensible about this in view of the difficulties that have been expressed.

PN86

THE COMMISSIONER: Can I ask another question and then I'll ask it of
Mr John as well. Has there been any support given to the negotiations by a member of the Commission or some other person?

PN87

MR HENDERSON: No, there's been no formal conciliation involving the Commission, Commissioner, and I confess I'm not in a position to give any indication of what the outstanding matters are that's really Ms Stracke's views but there hasn’t been is the short answer to your question.

PN88

THE COMMISSIONER: Mr John?

PN89

MR JOHN: Mr Henderson's correct there's been no support from the Commission.

PN90

THE COMMISSIONER: If there's going to be an adjournment I would set aside the order and directions issued yesterday and simply adjourn the matter, I think you said until about the middle of June.

PN91

MR JOHN: At the earliest I'm advised that we could not get safe access to the building until the completion of the roofing project.

PN92

THE COMMISSIONER: Yes.

PN93

MR JOHN: And that at the earliest is likely to be in the week beginning 29 June if I'm correct in that and I'm also advised that that date was given on the basis that there would be no rain and there would be no delays in the roofing process.

PN94

THE COMMISSIONER: Yes, Mr John. All right. I'm simply going to draw the parties attention to the provisions of the Act that allow for alternative dispute resolution. I don’t propose to leave it until the 29th, I'm going to ask the employer to take all reasonable steps to in consultation with ASU to identify the electorate and to - we'll have a report back in two weeks.

PN95

MR HENDERSON: Yes, Commissioner, perhaps I should just make an observation here. Firstly it would seem to me that the employees could be notified by post well and truly earlier than 29 June. I just was reflecting on the Commission's order in 3.4 that has been removed. I think is an issue that was considered by - it may have been considered by Vice-President Lawler but the issue of AWA employees, the list, if there was a list sent to us omitting AWA employees that would almost identify them as well as including them and I think that was the issue about how to the two lists could be brought together that was the subject of some debate.

PN96

THE COMMISSIONER: Yes, no, I understand.

PN97

MR HENDERSON: So perhaps I suppose - - -

PN98

THE COMMISSIONER: I'm familiar with that debate.

PN99

MR HENDERSON: We discuss - I suppose if the ASU discusses it with the employer it will come to some arrangements. I think ultimately the Electoral Commission must be the one who brings the list together.

PN100

THE COMMISSIONER: All right.

PN101

MR HENDERSON: But if the Commission was minded to set a fresh date some time, some little while hence, a fortnight I think is attested, Commissioner, and in that time if the employer could bring the matter to the attention of its staff however it communicates with its staff. It would seem to me that would bring us back to the point we would have been at today had the employees been properly notified to deal with the matter then afresh in a fortnight.

PN102

THE COMMISSIONER: Mr John?

PN103

MR JOHN: Commissioner, perhaps I can help in respect of 3.4 by saying this. I have asked a question of the employer today whether or not there are any current Australian workplace agreements in place covering persons who would be covered by the Social and Community Services Award. The answer I've been given , I stress the answer I've been given in the limited circumstances I've got is that there are none.

PN104

THE COMMISSIONER: Yes.

PN105

MR JOHN: I think that's a situation which would not the surprise of the ASU. So the issue of AWAs complicating this question I think fairly can be put to one side. While I'm on my feet, sir?

PN106

THE COMMISSIONER: Yes.

PN107

MR JOHN: If I might say that as far as the suggestion that you've made, drawing our attention to the alternative dispute resolution process and indicating you might reconstruct your position around a direction to us to take all reasonable steps in consultation with ASU to identify the electorate and report back to you in two weeks is something that I think on behalf of my client I could indicate that we would co-operate with that. The executive director of the organisation will be back in Melbourne in his office on Monday so on Monday or Tuesday at the latest think that I can undertake to be in touch with Ms Stracke to indicate to her what the position is with regard to our abilities to reconstruct on that's required.

PN108

However we'll also explore the OH&S situation with regard to the building. We've not had an opportunity to do that in any thorough way but the hazard is there and we'll make whatever effort we can in the next two weeks to at least provide the required notice and to provide the details that would be necessary for the Electoral Commission to conduct a ballot.

PN109

THE COMMISSIONER: All right. We'll I'll revise my orders and directions. I'll re-list the matter for 4 o'clock on 1 June and I again draw to the parties attention provisions of the Act where the parties can be supported and assisted in their negotiations given that its 16 employees. If that's availed there are ways of dealing with those matters expeditiously and indeed should the parties have a preference for a particular member that can be accommodated. All right, I'll simply adjourn given the factual position until Thursday 1 June at 4 pm.

<ADJOURNED UNTIL THURSDAY 1 JUNE 2006 [4.28PM]