BP2006/2768, Transcript of Proceedings [2006] AIRCTrans 802 (6 June 2006)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 15123-1

VICE PRESIDENT LAWLER

BP2006/2768

AUSTRALIAN EDUCATION UNION-ACT BRANCH
AND
ACT DEPARTMENT OF EDUCATION AND TRAINING
s.451(1) - Application for order for protected action ballot to be held
(BP2006/2768)

CANBERRA

1.09PM, THURSDAY, 25 MAY 2006

PN1

MS P GILMOUR: I'm appearing for the AEU ACT Branch, with me is Branch Secretary MR C HAGGAR and MS R BALLANTYNE.

PN2

MR W FOSTER: I appear on behalf of the Minister of Education, the Minister for Industrial Relations for the ACT Government. With me is MR M BATEMAN and MR D WHITTON.

PN3

THE VICE PRESIDENT: Thank you Mr Foster. Do we have anyone from the Electoral Office, the Electoral Commission here?

PN4

MR J HOWARTH: Your Honour, I appear on behalf of the Electoral Commission as an observer in today's proceedings.

PN5

THE VICE PRESIDENT: Mr Howarth, do you want to come up and take a seat at the bar table if you can find a seat there? I appreciate that you have a - you have limited writing instructions at the moment, but there may be some things to communicate with Mr Farrell, who I think is going to be responsible for this ballot. Now first of all, the Commission issued some initial orders and directions yesterday. Does either party - does any party seek a variation to those orders and directions? Yes, Mr Foster? Do you want to go first Mr Foster?

PN6

MR FOSTER: Deputy President[sic], I've got two submissions I would like to make in relation to the AEU application for a secret ballot. The first submission will deal with the jurisdiction of the Commission, to make a secret ballot order for this particular application and the other submission will address some of the processes used with my submissions about the ability of the ballot and unaccepted.

PN7

THE VICE PRESIDENT: So you're going to test the issuing of the order?

PN8

MR FOSTER: I am Vice President, yes.

PN9

THE VICE PRESIDENT: Well, I hadn't apprehended that that was going to occur, but that's fine, that's your entitlement.

PN10

MR FOSTER: Before I commence the submissions it may be useful for the Commission to hear a brief summary of the background of the matter.

PN11

THE VICE PRESIDENT: Yes.

PN12

MR FOSTER: By way of background, the AEU initiated - - -

PN13

THE VICE PRESIDENT: Just one moment please Mr Foster. Mr Foster, I think the normal course is for an applicant to go first and - are you happy to allow
Mr Foster to outline - - -

PN14

MS GILMOUR: Now he's indicated he's going to contest it, I think we'd prefer to go first. If that's okay, unless you think we should deal with that part of the argument.

PN15

THE VICE PRESIDENT: No I just - - -

PN16

MS GILMOUR: I mean our - - -

PN17

THE VICE PRESIDENT: Okay, well just take a step back. There is an issue as to whether or not the initial orders and directions will be varied in some fashion, because of the practicalities of trying to fit within the timeframes of the legislation, …1:13:10 the Commission trying to achieve, it's necessary to make all these directions properly before the ballot order hearing in an effort to minimize the timeframe for the ballot, given that there's now to be opposition to the issuing of the order. I'll just - I'll deal with that at the end only after the arguments have been resolved to the extent that is necessary then. In light of the arguments - could you just indicate just in broad outline Mr Foster what the challenge is to jurisdiction.

PN18

MR FOSTER: Yes Deputy - Vice President. We believe that we have a bargaining period, which is not a valid bargaining period.

PN19

THE VICE PRESIDENT: Because?

PN20

MR FOSTER: I was going to take you to section 170NA of the Act and indicate to you - - -

PN21

THE VICE PRESIDENT: There is no section 170NA of the Act.

PN22

MR FOSTER: Of the old act, 170NA of the old act, Workplace Relations Act.

PN23

THE VICE PRESIDENT: You mean its current manifestation?

PN24

MR FOSTER: And indicate to you that there was conciliation occurring under that part of the Act and that our understanding is there's a bargaining period in place which covers the conciliation but it doesn't go as far as allowing a secret ballot situation to occur under the old application by the AEU. That if a bargaining application is to be made, it should be made under the provisions of the new Act, which hasn't occurred. That's basically the thrust of the argument.

PN25

THE VICE PRESIDENT: So you say the old bargaining notice doesn't survive the commencement of legislation?

PN26

MR FOSTER: Yes that's right.

PN27

THE VICE PRESIDENT: Do you - okay. Do you rely on any particular provisions in the transitional provisions?

PN28

MR FOSTER: Yes I do, I was going to address that.

PN29

THE VICE PRESIDENT: Yes. It may be helpful for you to hear this
Ms Gilmour before you go first.

PN30

MS GILMOUR: Yes.

PN31

THE VICE PRESIDENT: Okay, proceed Mr Foster.

PN32

MR FOSTER: By way of background, the AEU had initiated a bargaining period in September 2005. The Department and the Union had been negotiating a new collective agreement since October 2005. An application to conciliate was lodged under the old section 170NA by the Government on 25 March 2006. Conciliation to date has not resolved in a resolution of the dispute and the AEU has lodged this application for protective ballot order under section 451(3).

PN33

The Government regrets the AEU's decision to proceed with this application which will unfairly target the ACT community in our view. The Government's made three offers to date, the latest is a 4 per cent per annum offer for a three year agreement, which meets the quantum sought by the AEU in their claim on behalf of their members. The offer is subject to the quantifiable productivity being achieved to assist with the pay-off. I'd just emphasize here the word quantifiable productivity is a sticking issue for the parties at the moment.

PN34

The AEU's rejected the latest offer on the basis of increased teaching hours and possible job losses. The Government position is that the AEU failed to provide any quantifiable productivity savings which would assist in paying a 4 per cent per pay increase - per annum increase and has rejected those offers proposed by the Government and has moved to initiate a new round of industrial action.

PN35

The Government's approach - approached the negotiations in good faith with a view to the interests of teachers in the ACT public education system in the context of a tight budget deficit. We acknowledge that the AEU has tried to assist in the resolution of the bargaining but is constrained because of the need to find quantifiable productivity. We believe the bargaining has been in good faith by both sides and that's not in dispute. However, the Union's position has failed to take into account our very tight fiscal budget situation.

PN36

The ACT Government has publicly stated its opposition to the Federal Government's Work Choices legislation and the ACT Government supports the right of employees to engage in lawful industrial action. I'd like to make it very clear to the Commission that there's no vindictiveness in our submission about the secret ballot, we simply believe that it's not a valid application. Turning now to my submissions.

PN37

The Department's advice is that the AEU's planned industrial action is outside the valid bargaining period as defined in section 423 of the amended Workplace Relations Act. This would render the action unlawful and place its members at unnecessary risk by engaging in unprotected industrial action. We submit that because the valid bargaining period has not been initiated in accordance with section 423, the Commission does not have the jurisdiction to make a secret ballot order at this time. Our reasoning for this statement is as follows.

PN38

Under section 451 of the Workplace Relations Act, the order for an application to be made for the making of a secret ballot order under Division 4 and Part 9 of the Workplace Relations Act 1996, it must be a bargaining period between the parties. For the purposes of Part 9 of the Workplace Relations Act, bargaining period has the meaning provided by section 423. Section 423 provides an employer, union or employees in trying to make such a collective agreement may initiate a bargaining period. This is the part - or the AEU has initiated a new bargaining period since the commencement of Schedule 1 of the Workplace Relations Amendment (Work Choices) Act 2005 on 27 March 2006.

PN39

We believe the AEU is seeking to rely upon the bargaining period that is initiated under the pre-reformed provisions of the Workplace Relations Act. The first point I would make is that section 423 - - -

PN40

THE VICE PRESIDENT: Doesn’t item 20 of Schedule 4 of the Workplace Relations Amendment (Work Choices) Act 2005 apply here?

PN41

MR FOSTER: I haven't referenced it?

PN42

THE VICE PRESIDENT: Item 20, Schedule 4, Workplace Relations Amendment (Work Choices) Act 2005, that's the amended act, I think we refer to it in shorthand as the Work Choices Act.

PN43

This item applies to a matter if:

PN44

(a) the matter arose before the reform commencement under Division 8 of Part VIB of the Workplace Relations Act 1996, as in force at that time;

PN45

That's the part that deals with the initiation of bargaining periods, and:

PN46

(b) the Commission has begun to exercise its conciliation powers under section 170NA, as in force at that time, in relation to the matter.

PN47

Then,

PN48

(1A) This item applies subject to:

PN49

(a) Parts 4 and 8 of Schedule 14 to the amended Act;

PN50

They're the transitional arrangements in relation to the certification of agreements that were made before the commencement but not yet certified and the MX Award area.

PN51

Sub-item 20A of the Schedule, which again is 170MX awards and the ..... provision is Item 2:

PN52

Despite the amendments made by items 71 and 168 -

PN53

71 - Item 71 is the repeal of Parts 5A and 6, the substitution of new provisions and 168 is the repeal of Parts 6B, D, E and 7:

PN54

The Workplace Relations Act 1996 continues to apply during the transitional period in relation to the matter as if the amendments had not been made.

PN55

MR FOSTER: Yes, if you'll permit me Vice President, I will address that in a moment.

PN56

THE VICE PRESIDENT: Okay, are you going to rely upon the Full Bench decision in - - -

PN57

MR FOSTER: I may put a view to you to consider.

PN58

THE VICE PRESIDENT: Yes. The decision where I have a very firm view that the Full Bench is wrong but where I will follow because of the necessary necessity to act with comity.

PN59

MR FOSTER: I do understand - - -

PN60

THE VICE PRESIDENT: However, it seems to me that that Full Bench decision in fact supports the AEU's position here, because the issue in that Full Bench matter was whether or not a secret ballot order needed to be made before protected action could occur in relation to a bargaining period initiated before the reform commencement. The Full Bench held that it did, overturning my determination that it did not. The Full Bench appears to have accepted though that the pre-reform initiation of a bargaining period survives the reform commencement and therefore your argument that the new bargaining period has to be initiated under section 423 doesn't work.

PN61

MR FOSTER: I'm quite happy to proceed with my submission if you wish to hear it, but if I'm hearing from you that - - -

PN62

THE VICE PRESIDENT: No, no, no. I just wanted to - I want to make sure that you understand the way I'm approaching it, on a prima facie basis.

PN63

MR FOSTER: I think I understood that before I came to the Commission that you probably had a fairly strong view about the matter and in terms of some previous cases I read that - nevertheless I thought it was worthwhile putting a submission in terms of what we thought the situation may be.

PN64

THE VICE PRESIDENT: Look I may have been - I may have drawn inferences incorrect[sic] about apparent puzzlement in my reference to Item 20, but obviously you're on top of it.

PN65

MR FOSTER: I wouldn't say I'm on top of it. It's a bit like watching the movie The Castle, trying to interpret new legislation in terms of where you go with it
but - - -

PN66

THE VICE PRESIDENT: It's a new fairer, simpler system.

PN67

MR FOSTER: I must say, you sort of struggle to work our way through it in terms of the amount - the volume of documentation needed to refer to and refer back to, but nevertheless, if I may proceed.

PN68

THE VICE PRESIDENT: Yes thank you.

PN69

MR FOSTER: At the time of initial pre-reformed bargaining period on
5 September 2005 the AEU presumably intended to make an agreement under the pre-reform Act, rather than in provision to the amended Workplace Relations Act. It therefore in our view did not have the requisite intent to enter into a collective agreement or therefore initiate a post-reform bargaining period. The AEU may argue that its pre-reform bargaining period is still effective, however the provisions of the Workplace Relations Act under which that pre-reform bargaining period was initiated, Part VIB of the pre-reform Workplace Relations Act were repealed by Item 168 of Schedule 1 of the Work Choices Act.

PN70

There are no transitional provisions in the Workplace Relations Act, the Work Choices Act or in the Workplace Relations Regulations 2006 that would deem a pre-reform bargaining period to be a bargaining period within the meaning of the amended Workplace Relations Act. A recent Full Bench decision in Minister for Employment and Workplace Relations PR971312 of 2 May 2006 and the Vice President's decision in Re: Australian Nursing Federation case, PR971973, 6 April 2006 considered the transitional provisions set out at Items 19 and 20 of Part 4 of Schedule 4 to the Work Choices Act.

PN71

Looking first at Item 20, the Full Bench held the effect of Item 20 was that in circumstances where one or either of the parties had asked the Commission under section 170NA of the pre-reform Workplace Relations Act to exercise its conciliation powers before reform commencement, where the Commission had started exercising those powers before the reform commencement, as is the case with the AEU and the Department, those conciliation proceedings may continue for a period of three months, but for us this means until 26 June 2006.

PN72

The Full Bench concluded, and I quote here:

PN73

In our view the construction of Item 20, which is consistent of that purpose is that the Item is confined to conciliation proceedings which commenced under section 170NA(1) under the unamended Act. It follows the term does not continue the operation of protective actions of the provisions of the unamended Act. Accordingly, a notice of intention to take protective industrial action would not be written per view of the Item.

PN74

In the result the ANF would be able to take protective action that making an application for protective action without making an action for protective action valid order pursuant to section 451(1) of the amended Act. Item 20 does not provide that a pre-reformed bargaining period will be treated as if it were a bargaining period within the meaning of Part 9 of the amended Workplace Relations Act.

PN75

The contrast with various other deeming provisions are stark. For example, Item 22 Schedule 4 to the Work Choices Act deems pre-reform right of entry permits had been made under the relevant provisions of the Workplace Relations Act. Had parliament intended pre-reform bargaining periods to be deemed to continue it would have done so in the Work Choices Act. It's clear in our view that Item 20 is limited to conciliation and should not be interpreted as deeming it pre-reform bargaining period - - -

PN76

THE VICE PRESIDENT: Conciliation in relation to what?

PN77

MR FOSTER: Well - enterprise bargaining.

PN78

THE VICE PRESIDENT: Yes, in relation to a bargaining period. You can't have a 170A conciliation continuing without the bargaining period continuing in existence as well. The existing of the bargaining period is the sine que non of the 170NA conciliation proceeding. I suggest. What is the defect in that analysis?

PN79

MR FOSTER: Well I guess - it was our interpretation that it was simply admitted to that conciliation only and didn't take it any further than that.

PN80

THE VICE PRESIDENT: But for conciliation - cannot, it seems to me, continue unless there is a bargaining period extant in relation to which that conciliation occurs.

PN81

The difficulty that I have with the Full Bench decision, let me make it plain, is that the Full Bench considered Item - Sub-item 1 of Item 20 and concluded that it applied in the case. It concluded that those - that the references to "matter" would extend to the issuing of the protective action notice or taking protective action. It then considered, at the critical point in the decision, the meaning of the word "matter" in Sub-item 2 and determined that there was some ambiguity about it and then had to resort to the explanatory memorandum to take a narrow view of what that word "matter" was.

PN82

The difficulty that I have with that approach is that it's not the word "matter" in
Sub-item 2 that's at issue, it's the expression "the matter" and when you ask yourself what is "the matter" that's being referred to, it can be nothing other than - where the only question of ambiguity the "matter" referred to in Sub-item 1 Paragraph A and "the matter" referred to in Sub-item 1 Paragraph B, which is in these terms:

PN83

This item applies to a matter if:

PN84

(a) the matter arose before the reform commencement.

PN85

Etcetera and:

PN86

the Commission has begun to exercise its conciliation powers in relation to the matter.

PN87

How the Full Bench thought that there was some ambiguity about what the expression "the matter" meant and so on and too in those circumstances escapes me but more importantly to confine the word "matter" in Sub-item 2 purely to the conciliation proceedings that the - as the Full Bench has done is at odds with the distinction drawn in Sub-item 1(b) between the - 170NA conciliation proceedings and "the matter". Sub-item (b) says - Sub-item 1(b) says:

PN88

The Commission has begun to exercise its conciliation powers under section 170NA, as in force at that time, in relation to the matter.

PN89

Apparently drawing the distinction, now the Full Bench didn't consider these arguments. It did not address them. There's a simple assertion, as I say, as a matter of comity and as a single member I'm not going to refuse to follow the Full Bench but I'm going to take subject to any arguments you advance the contrary, the narrowest view of that decision. The narrowest view of that decision is that a secret ballot order is required if protected action is to be taken in relation to a bargaining period that commenced before the reform commencement. Because that is what the effect of the decision was.

PN90

MR FOSTER: Thank you Vice President. On the basis of - - -

PN91

THE VICE PRESIDENT: You're going to go back to reading your submissions are you?

PN92

MR FOSTER: No, I think I've picked up your point there but I think - - -

PN93

THE VICE PRESIDENT: What I'm inviting you to do is to cut to the chase, this is the critical issue. Where is the defect in my analysis?

PN94

MR FOSTER: Yes, I understand what you're saying. I think probably there's little point in proceeding with that submission but I think in terms of the situation I'd now like to put to you is that obviously my submission there is not one that is going to succeed, so I think - - -

PN95

THE VICE PRESIDENT: No, no Mr Foster. You have now on several occasions sought to invite me to allow you to make your submission and then you've gone back to reading what you've been writing and because I'm meant to resume another matter at quarter to two, and out of concern to avoid an undue delay in the recommencement of that matter, because I thought this matter was not going to be hotly contested because there was no indication of that I want to cut to the chase.

PN96

Now what I've said to you is that it seems to me that Sub-item 20 applies and it applies consistently with the decision of the Full Bench because you can't have a 170NA conciliation proceeding in relation to a pre-reform bargaining period unless the bargaining period itself is continuing pursuant to Item 20. Now do you wish to say that - do you wish to advance an argument as to why that analysis is incorrect?

PN97

MR FOSTER: No I don't.

PN98

THE VICE PRESIDENT: Right thank you. Is there any other jurisdictional challenge?

PN99

MR FOSTER: No, there is an issue that I'd like to raise about process issues.

PN100

THE VICE PRESIDENT: Well fine let's get to that at the end. I just wanted to hear from you on the jurisdictional issue because the AEC can't respond to it until they know what it is. You don't need to respond to it Ms Gilmour.

PN101

MS GILMOUR: Thank you.

PN102

THE VICE PRESIDENT: Now. Mr Foster you don't take any issue that the
pre-reform bargaining period was validly initiated?

PN103

MR FOSTER: No, not at all.

PN104

THE VICE PRESIDENT: Fine, thank you. Is there any issue about service? As the AEC's been served with the application, the employer's been served with the application?

PN105

MR FOSTER: There's two issues I'd like to raise there if I could.

PN106

THE VICE PRESIDENT: Yes?

PN107

MR FOSTER: One's the timing of the ballot.

PN108

THE VICE PRESIDENT: No Mr Foster. I'm going to exercise a little control over the way this is done, I'll endeavour to accord procedural fairness. You will have an opportunity to make whatever submissions you wish in relation to ballots and processes before this matter is concluded. At the moment I'm concerned to identify whether or not the requirements of the Act have been met, the technical requirements, in the making of an order.

PN109

MR FOSTER: Yes.

PN110

THE VICE PRESIDENT: I'm working my way through them systematically. Is there any issue that the application for secret ballot order was not served within 24 hours?

PN111

MR FOSTER: No.

PN112

THE VICE PRESIDENT: Okay, do you submit Ms Gilmour that it was served on both the ballot agent - the nominated ballot agent, the Australian Electoral Commission and the employer in 24 hours.

PN113

MS GILMOUR: Yes your Honour, and if you wish I can tender an activity report from the fax to demonstrate the timing that the transmissions were made from our office?

PN114

THE VICE PRESIDENT: Fine, thank you. It's probably unnecessary given there's no contest. The Commission's entitled to act on submissions that are uncontested. So let's just - so in fact let us just move on. There's no issue between the parties that an attendance ballot would not be a more efficient and expeditious method of voting than a postal ballot?

PN115

MS GILMOUR: No, we don't believe an attendance ballot would be expeditious. We think a postal ballot, given the size of the people - the number of people to be balloted is a more efficient process.

PN116

THE VICE PRESIDENT: And the number of work locations?

PN117

MS GILMOUR: That's right. Yes.

PN118

THE VICE PRESIDENT: Presumably you have the same view Mr Foster?

PN119

MR FOSTER: That's correct, thank you.

PN120

THE VICE PRESIDENT: Yes. Mr Foster has already indicated that the employer takes the view that there's been good faith bargaining on both sides. I take it you submit Ms Gilmour that the applicant has genuinely tried to reach agreement.

PN121

MS GILMOUR: That's correct your Honour.

PN122

THE VICE PRESIDENT: And is continuing to genuinely try and reach agreement?

PN123

MS GILMOUR: That's correct your Honour.

PN124

THE VICE PRESIDENT: Mr Foster from your admission that there's been good faith bargaining on both sides I imagine you don't challenge that submission?

PN125

MR FOSTER: Not challenged at all.

PN126

THE VICE PRESIDENT: Yes. Ms Gilmour you submit that there's no pattern bargaining within the meaning of sections 431, 439, 497?

PN127

MS GILMOUR: I do.

PN128

THE VICE PRESIDENT: Is there any challenge to this submission?

PN129

MR FOSTER: There's no challenge.

PN130

THE VICE PRESIDENT: That the union is not engaged in pattern bargaining. Okay, well in those circumstances the requirements for the making of a secret ballot order are made out and the issue then becomes what the contents of the order ought to be. I've received your draft order Ms Gilmour, did you send a copy of that to the employer?

PN131

MS GILMOUR: No I didn't your Honour. Part of the reason for that was when we received your orders yesterday we realised that that meant that some of what was in ours was no longer necessary because we didn't want to contest the draft order that had been provided except in one element, but I do have a copy to - - -

PN132

THE VICE PRESIDENT: Well no I haven't - I don't think I've sent you a draft order for the secret ballot order, these are - - -

PN133

MS GILMOUR: No.

PN134

THE VICE PRESIDENT: - - - ancillary orders and directions.

PN135

MS GILMOUR: Yes. So what I've prepared now simply relates - as I said the draft orders that we have received, the only issue that we wanted to raise with them was the inclusion on the AEU's list of a date of birth, because our members are not required to furnish that information when they join a union and we don't keep it. So we'd like to give it to you if we had it but we don't have it.

PN136

THE VICE PRESIDENT: Is giving it in the form of a Microsoft Excel compatible spreadsheet a problem?

PN137

MS GILMOUR: No.

PN138

THE VICE PRESIDENT: If I say do you want that varied to remove date of birth?

PN139

MS GILMOUR: Yes please.

PN140

THE VICE PRESIDENT: You otherwise have no difficulties with the timeframes?

PN141

MS GILMOUR: No.

PN142

THE VICE PRESIDENT: All right, now Mr Foster. In relation to those draft orders and directions are there problems - any problems you have with them? Those initial orders and directions that were issued yesterday?

PN143

MR FOSTER: Thank you Vice President. We do have some issues we want to raise. We're not dismantling the ..... -they're really just process issues for us in terms that are very hard to comply.

PN144

THE VICE PRESIDENT: I understand that it's - I should record for the record or let you know because I've told you I've spoken to both Ms Gilmour and
Mr Bateman in an effort to tailor these in a way that would meet the convenience of the parties and the practicalities rather than make the task more difficult and I'm conscious as was hopefully indicated by item 5 that the orders may need to be varied. So your process issue Mr Foster?

PN145

MR FOSTER: There's two thank you Vice President. One is that the quorum to provide by 4 pm on 26 May an Excel spreadsheet detailing certain particulars. The Department's got over 3000 permanent teachers and on any day we think that between two and three hundred casual teachers may be engaged. The Department does not currently have an electronic system to easily identify all casuals engaged on or around a particular day at short notice.

PN146

THE VICE PRESIDENT: So it's going to be necessary to contact each of the schools and have the principles or the - - -

PN147

MR FOSTER: That's correct - - -

PN148

THE VICE PRESIDENT: - - - secretarial staff - - -

PN149

MR FOSTER: That's correct it would need to be done manually.

PN150

THE VICE PRESIDENT: - - - send back a list and there's going to be some time in processing that.

PN151

MR FOSTER: We believe that - - -

PN152

THE VICE PRESIDENT: Can you do it by Monday?

PN153

MR FOSTER: We're hoping to be able to comply by Monday the 29th.

PN154

THE VICE PRESIDENT: So Ms Gilmour that seems to be reasonable?

PN155

MS GILMOUR: Yes, that's reasonable.

PN156

THE VICE PRESIDENT: Fine, okay, Monday the 29th at 4 pm. Now what about the form of the provisional list - is putting it in a Microsoft Excel compatible spreadsheet going to be a problem?

PN157

MR FOSTER: There's no issues with that.

PN158

THE VICE PRESIDENT: The content of the lists - I understand that both the Union and Mr Bateman indicated that there are no AWA employees whose agreements are unexpired in the system and therefore there's probably no need for an AWA expiry date. Is that something you have instructions to confirm
Mr Foster?

PN159

MR FOSTER: No AWAs at all for any teaching staff.

PN160

THE VICE PRESIDENT: Well in that case given that there's no AWA employees then I'll also vary the award as to remove the AWA expiry date. Given that the Union doesn't have date of birth information, there's no need - there's no point in requiring production of date of birth information I would have thought. Mr Howarth do you have a view on that?

PN161

I note that Mr Keane in your commission has indicated that date of birth is a very useful piece of information to have because it allows a check to me made to determine whether or not the person X on one list is the same person X on the other list. Is it the married name on this list and the maiden name on that list?

PN162

MR HOWARTH: It may mean that it may make the checking cases a little bit longer but I don't think it's unsurmountable.

PN163

THE VICE PRESIDENT: What about that as an item of - if the Commission - if the Electoral Commission is unsure whether some individual on the union list is the same as the individual on the employer list and they want to contact the individual, does it - would the Commission like to have date of birth there as it were as a security check so that they ..... speaking .....?

PN164

MR HOWARTH: Well it would be helpful but if it's impractical then - - -

PN165

THE VICE PRESIDENT: No it's not impractical, it's very practical I think it's just a question of whether or not it needs to be - happen.

PN166

MR HOWARTH: Well, we would prefer it your Honour.

PN167

THE VICE PRESIDENT: Fine. Fine okay.

PN168

MS GILMOUR: Your honour may I ask a question about part of the process that might help with that very issue. We are aware that some of our members have a different name on our membership list because they - you know they might still be transacting business in their birth name rather than their married name but the employer's got a different name. I'm personally aware of a person whose name - they are the same person, but their name has four parts to it. We've got two of them and the Department's got the other two of them, but it is the same person. If we furnish the list to the AEC where we know of those individuals, would that be an assistance?

PN169

THE VICE PRESIDENT: That would certainly be of assistance. That would certainly be of assistance.

PN170

MS GILMOUR: So we could send out something to our members saying, if you've got a different name with the union than you have with the department please email us back and tell us, which would help us compile the list quickly for you to add to any that we already know.

PN171

THE VICE PRESIDENT: Well I think the Commission is going to - is required to send out notices anyway - have notices placed in the employment places. You're going to have to require the employer to do that and no doubt that notice can be - the Electoral Commission issues can be adjusted to alert people to the fact that if they're aware of that then they should contact the Electoral Commission. Okay, so are there any other changes to these initial draft orders and directions that are sought? No? Okay. Let's move then to the substantive order for the ballot. Now Mr Foster, you've had some other process issues that you wanted to raise?

PN172

MR FOSTER: Yes just one final issue Vice President and I'm not to sure whether you can assist or not but I'll just flag to you that there's an issue of require notice before industrial action can be taken that I'd like to raise if I could.

PN173

THE VICE PRESIDENT: Yes.

PN174

MR FOSTER: Subsection 463(5) indicates that the Commission's got the discretion to specify that - - -

PN175

THE VICE PRESIDENT: A longer period of time.

PN176

MR FOSTER: A longer period of time, yes. We'd actually ask if we could - the Commission to consider approving an application from us to extend the period to seven days and I say this because in a situation for the ACT Government schools, the action would involve estimating the amount of action - which will have on the ability for schools to provide adequate supervision.

PN177

We've got a need to advise the school community of the operational status of the school through newsletters to parents and through the Canberra Times and also in the ACT we always put in place emergency childcare arrangements through a third party, usually a YMCA or somebody like that to provide for parents and carers who cannot arrange childcare at short notice. We'd say that in a small centralised workforce you could do that quite quickly but we've got 180 distinct physical locations and three days notice is insufficient for us to be able to react and assist the community in this regard. So on a public interest ground at least we would say that we request that the ballot order provide for a minimum of seven days notice in accordance with subclause 463(5).

PN178

THE VICE PRESIDENT: Yes, Ms Gilmour do you contest that the factors that Mr Foster's identified are matters that constitute exceptional circumstances that justify an extension of the period of notice under - pursuant to section 463(5)?

PN179

MS GILMOUR: No your Honour, it's in fact been our practice to always give seven days notice of intent to take industrial action and that's been the case in this round and the previous one so we would have no difficulty with that.

PN180

THE VICE PRESIDENT: Fine, well I'm satisfied that there are exceptional circumstances that justify the period of notice referred to in Paragraph 441(2)(B) being longer than three days and I'll specify the order that the period of notice is to be seven days. Anything further by way of process that you wanted to raise in relation to the conduct of the ballot?

PN181

MR FOSTER: No thank you.

PN182

THE VICE PRESIDENT: Okay fine. Well I'm satisfied that the requirements of the Act have been made out and I propose to make an order today for the AEU ACT Branch to conduct a secret ballot with the Australian Electoral Commission appointed as the valid agent. The types of employees who would be balloted are all teachers employed by DET currently, subject to The ACT Department of Education and Training Teaching Staff Certified Agreement 2004-2006 for members of the AEU ACT Branch on the date of this order provided they're employees that satisfy the eligibility criteria specified in section 467.

PN183

I'll reduce - this order will be issued in written form formally before the end of the afternoon. The parties can as it were proceed on the basis of the orders being made today. It'll be a postal ballot, it'll be a secret ballot. The voting will have to take place by way of declaration voting as described in the Act and the Regulations. The ballot is to be conducted by the Electoral Commission. Now the timetable for the ballot, the Union wanted five working days for the - before the roll of voters closes.

PN184

MS GILMOUR: Your Honour we'd seek to vary that in line with the changed circumstances with the Department taking a little longer to finalise their list so if we could just push it out to - how many days did Mr Foster ask for? Is it an extra three?

PN185

THE VICE PRESIDENT: No, an extra one working day.

PN186

MS GILMOUR: Yes, could we push it out to six days simply because we don't want to put - we want to give our members the best chance to make sure they're on the roll and if there's a delay in matching the rolls because one half of the list is not provided then an extra day might be useful.

PN187

THE VICE PRESIDENT: Yes, fine. So 29 May will be the provision of the lists. The - that'll make 6 June - sorry Monday 5 June is a full week a calendar week and five working days. Is that sufficient?

PN188

MS GILMOUR: Yes thank you.

PN189

THE VICE PRESIDENT: So 5 June for the close of the roll. Now Mr Howarth the - I received a facsimile from Mr Keane which - rather an email from
Mr Keane which I understood reflected a timetable that the Commission is able to meet in the general case single metropolitan city in this ballot in the shortest possible timeframe, but it seeks two working days from the close of the roll to the opening of the ballot. Is that still the position of the Commission?

PN190

MR HOWARTH: I thought that was in the legislation your Honour.

PN191

THE VICE PRESIDENT: No I don't think so. No the legislation is silent as to the timetables. We'd have to make the order if we can within two working days and we have to when making the order and issuing directions have regard to the desirability of having the results returned within ten days. It is impossible to conduct a postal ballot of this many employees in ten days. In fact it's impossible to conduct a postal ballot within ten days without seriously prejudicing the integrity of the franchise process.

PN192

In any event two working days for the AEC to open the ballot, so it will be from
7 June for the ballot to open. You want seven working days? A week?

PN193

MS GILMOUR: Yes your Honour. So that will be 16 June. Is that right?

PN194

THE VICE PRESIDENT: Yes, Friday 16 June when the ballot closes. Okay. The Union sought Mr Foster, Mr Bateman that the ballot papers be posted to the workplace address as provided by the employer of permanent teaching staff eligible to vote who are not on leave and the home address as provided by the employer of casual teachers, relief teachers and permanent teaching staff who are on leave. Does that present a problem? Feel free to speak Mr Bateman that's fine.

PN195

MR BATEMAN: It should be okay, the difficulty with people on leave will be that they'll be overseas but we'll do our best to get those addresses as best we can.

PN196

THE VICE PRESIDENT: I think it's the home address is what they're asking and if people are overseas then really that's just too bad.

PN197

MR BATEMAN: It could be better in some cases for it to go to their work address than for the work to forward it on but there's going to be delay no matter what we do.

PN198

THE VICE PRESIDENT: The way this legislation is constructed some people are going to be disenfranchised and that's just the way that the legislation operates.

PN199

MR BATEMAN: But we will provide what details we've got.

PN200

THE VICE PRESIDENT: I mean - if one - there is no provision for the postal ballots that we're familiar with in federal elections and the timeframes make it utterly impractical for people to be travelling to be given an opportunity to vote. That's just the nature of the beast but what that means is there will be a need to amend the initial orders and directions further so that you indicate in the list whether a person is a permanent member of staff, whether they're casual or relief or whether they're on leave. Is that a problem? Does your system allow that to be produced automatically?

PN201

MR BATEMAN: Yes we do have a problem with the leave in that our current HR system's a new one and we're not able to record leave on that so we won't be able to pull - - -

PN202

THE VICE PRESIDENT: So you won't know which teachers are on leave? Sorry, you can't determine that by a simple electronic search?

PN203

MR BATEMAN: No. It won't be a simple search to do no, it will be somewhat cumbersome to get all that information and it may not be 100 per cent accurate but we can again do our best to provide an accurate list.

PN204

MS GILMOUR: Your Honour, I guess there are two questions. One is if the employer is not able to provide an accurate list, where does that leave those people in terms of their participation, can they - are they then excluded or is - - -

PN205

THE VICE PRESIDENT: You're the one that wants to have this separation between work address and home address. The ordinary postal ballot process that the Electoral Commission would be conducting as its sort of standard model will see ballots posted to the home address of employees. Of course that can be varied to suit the circumstances of the case. If you want to provide a list of those people, if you think you can identify who they are - - -

PN206

MS GILMOUR: We’re not able identify those people because of the way that our membership works, because you're on leave doesn't change you status inside the Union necessarily, particularly if you're on paid leave.

PN207

So we have no reason to change our records about those people but given that the Department's indicating that - I think you're indicating that for contract and relief staff a home address isn't a problem, would it resolve the issue if we had the ballot papers for all permanent staff posted to the workplace with a request that if they're not there it be forwarded to the home address that the workplace has for them. Because one of the issues that was raised with us in discussions with the Department yesterday was - - -

PN208

THE VICE PRESIDENT: Prima facie that's not a problem but it will mean that the timetable may need to be extended even further to allow - if you want those individuals to have the same opportunity in terms of time to open their mail and respond to the ballot to vote.

PN209

MS GILMOUR: Well I guess the critical issue is that the ballot may be rendered invalid if 50 per cent of the votes don't come back so - - -

PN210

THE VICE PRESIDENT: That's the critical issue for unions in these ballots.

PN211

MS GILMOUR: Yes so from our perspective it would be better to push the timetable out a little more then run the risk of not getting the appropriate return given that those people are eligible to vote. We certainly acknowledge that there's nothing that can be done for people who are simply not in their workplace - - -

PN212

THE VICE PRESIDENT: Anyway, it's your preference. The work address for permanent teaching staff is an important element for you?

PN213

MS GILMOUR: It is.

PN214

THE VICE PRESIDENT: Right okay. Mr Bateman is there any difficulty with what Ms Gilmour's suggested? That is that the working address for all of the permanent staff?

PN215

MR BATEMAN: And temporary staff.

PN216

THE VICE PRESIDENT: And temporary staff. Is the address to which the ballots will be posted and that the principals or the office, the school administration will take responsibility for on-forwarding those ballots to the home address of the relief staff or casual staff.

PN217

MR BATEMAN: No we would do the relief staff.

PN218

THE VICE PRESIDENT: And the permanent staff on leave.

PN219

MR BATEMAN: We'll give the home address for relief staff, but that should be current. For people on leave if we send them to the workplace, the workplace can then forward it to the permanent and temporary staff on leave.

PN220

THE VICE PRESIDENT: Okay so let me just make it clear. Your list will identify those who are relief staff and those who are permanent staff.

PN221

MR BATEMAN: Yes. Well temporary - permanent and temporary staff will be regarded as the same because that's the way we do it. Relief staff will have a separate list with home addresses.

PN222

THE VICE PRESIDENT: Okay so the relief staff will have the home address and the permanent and temporary staff will have the work address and the school administration will take responsibility for on-forwarding the mail in relation to those teachers who are on leave in the permanent, relief - the permanent temporary category. Okay.

PN223

MR BATEMAN: Is it necessary to identify the classification - like to permanent, temporary, casual?

PN224

THE VICE PRESIDENT: Well it's - I suppose it isn't, I suppose it isn't.
Ms Gilmour is shaking her head suggesting she doesn't think it's necessary but you're simply going to prepare a list in such a way that the address that you'll enter for the permanent and temporary staff will be the working address, care of whatever the school is and for the relief staff it will be their home address. Fine, well okay assume that I'll amend the initial orders and directions to reflect that. The questions will be as in the application.

PN225

The Department will have to display an information sheet prepared by the authorised ballot agent - or the directions given by the authorised ballot agent and that will be an information sheet that notifies people of their entitlement to contact the Electoral Commission to confirm they're on the roll of voters before the roll closes. Fine. So I'll make the order before the end of the afternoon.

PN226

MS GILMOUR: Thank you your Honour.

PN227

THE VICE PRESIDENT: Anything further?

PN228

MS GILMOUR: No.

PN229

THE VICE PRESIDENT: Mr Foster nothing further?

PN230

MR FOSTER: Nothing further Vice President.

PN231

THE VICE PRESIDENT: I apologise if I gave you a bit of a hard time
Mr Foster, I'm getting a little bit - - -

PN232

MR FOSTER: I was aware you had particular views about the matter.

PN233

THE VICE PRESIDENT: - - - a little bit - a little bit stressed. I mean ordinarily I'm certainly very fallible and getting knocked off is fine but the - and as I say I follow - even accepting the decision as I do, still apply.

PN234

MR FOSTER: Well it was a difficult matter for us I think but I think we needed to resolve the matter.

PN235

THE VICE PRESIDENT: All right, I will in fact right some very brief decisions and reasons in relation to that if I get a chance this evening. Otherwise it will be some time very soon. All right, thanks.

<ADJOURNED ACCORDINGLY [2.00PM]