BP2006/3082, Transcript of Proceedings [2006] AIRCTrans 947 (10 August 2006)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 15463-1

COMMISSIONER SIMMONDS

BP2006/3082

THE AUSTRALIAN WORKERS’ UNION
AND
ROCHE MINING (JR) PTY LTD
s.451(1) - Application for order for protected action ballot to be held
(BP2006/3082)

MELBOURNE

10.34AM, WEDNESDAY, 26 JULY 2006

Hearing continuing

PN1

MR C WINTER: I appear on behalf of the Australian Workers' Union and with me is MS S HODGERS and MR T LEE.

PN2

MS C BROWN: I am from the Australian Mines and Metals Association appearing on behalf of Roche Mining.

PN3

THE COMMISSIONER: Yes thanks Ms Brown. Well we've listed this matter this morning for directions and, for mention and directions to see how far you want to go with this at this stage. So, Mr Winter?

PN4

MR WINTER: Yes thank you Commissioner. If I could put just a few points. I know you're well and truly aware of the project and you've had lengthy dealings with the project over a number of months. I won't go into - - -

PN5

THE COMMISSIONER: In conjunction with other members, yes.

PN6

MR WINTER: So I won't go into the details of what they're doing down there but this is an application made under section 451 of the Workplace Relations Act. The AWU seeks an order from the Commission that will authorise a protected action ballot to be held. Now subsection 3 of section 45 of the Act allows for an organisation of employees to apply for an order if a bargaining period has been initiated. In this case, as you'd be aware Commissioner, there's a copy of a bargaining period attached to our application which is on page 3.

PN7

In this case the initiation of bargaining period was lodged with the Commission and a copy sent to the employer on 20 June. The current certified agreement known as the Roche Mining AWU Murray Basin Development Project Construction Site Agreement, AG840819, has passed its nominal expiry date. It passed its nominal expiry date on 1 July. I can give you a copy of that agreement.

PN8

THE COMMISSIONER: Yes thanks Mr Winter.

PN9

MR WINTER: In accordance with section 461 of the Act, in relation to these proceedings the Commission must be satisfied on a number of matters. Those matters include that during the bargaining period the applicant has genuinely tried to reach agreement. Two, that the applicant has genuinely tried to reach agreement with the employer. Three, that the applicant is not engaged in pattern bargaining.

PN10

In this case in particular, Commissioner, the union through Mr Lee commenced negotiations with the company prior to the nominal expiry date on 10 May and there's been at least five meetings between Mr Lee and company representatives, including Mr Nash and Mr Last who have been parties to all negotiations throughout. The company has provided a draft document, they provided the draft document to us on 13 July, Thursday 13 July which contained a new offer.

PN11

That new offer was put to members at an authorised meeting and our members rejected the offer that was put by the company at that stage and instructed us to seek a ballot in relation to this matter. To allow for discussions to proceed further, we continued having discussions with the company through July and in fact the parties have met under the auspices of this Commission and in particular DP Ives on two occasions. The last occasion being Tuesday of last week where there was some discussions through conciliation to try and reach an agreement between the parties.

PN12

Unfortunately those negotiations did not come to any fruition and the parties were unable to reach an agreement on the continuing, or to continue the negotiations. In relation to this matter, Commissioner, we'll argue that there's no evidence of pattern bargaining occurring, that the AWU are seeking a stand alone agreement to cover one particular site. The proposed agreement we're seeking would be, would only be, the AWU would be the only party to it besides the employer. There would be no other unions party to the agreement and in addition the AWU is not seeking to take protected action in support of an agreement that would contain prohibited content.

PN13

An example of this is we haven't put on the table a deed or an MOU or anything like that, we're seeking a straight agreement that would go through the department. Commissioner, in relation to this matter I'd also seek to rely on a decision by Commissioner Gay and if I could hand up a copy of that decision. Commissioner, this is a decision by Commissioner Gay in PR973236. It was the AMWU and Amcor Packaging Australia Pty Ltd. It's a recent decision handed down by him on 3 July.

PN14

THE COMMISSIONER: Yes. You're going far too far from where we need to go.

PN15

MR WINTER: Yes.

PN16

THE COMMISSIONER: The matter's only down for mention and it was really a question of getting the process underway and establishing whether there's any opposition to it from the other side because if there's going to be opposition then I'll start wanting to see some written submissions I think. But anyhow I've read the papers, you're proposing, you're claiming firstly that you meet the required pre-conditions and that the ballot should be conducted by the Australian Electoral Commission as an attendance ballot.

PN17

MR WINTER: Yes and the reasons for that attendance ballot are clear in regard to most of the people are living away from home.

PN18

THE COMMISSIONER: Yes.

PN19

MR WINTER: And that is why we're not seeking a postal ballot.

PN20

THE COMMISSIONER: Yes. No I understand that.

PN21

MR WINTER: I'll leave it at that at this stage, Commissioner.

PN22

THE COMMISSIONER: Well what sort of – obviously the Electoral Commission will have a view about the time scale for the conduct of the ballot but what's your position on that?

PN23

MR WINTER: Well I had some, a brief discussion. The Electoral Commission rang me yesterday. I informed them where the site was et cetera. They didn't give me a time frame at that stage.

PN24

THE COMMISSIONER: No.

PN25

MR WINTER: We would envisage that a ballot could take place within 10 days.

PN26

THE COMMISSIONER: So where would you envisage that the ballot would be conducted at the two sites?

PN27

MR WINTER: We would seek to have the ballot held on site, probably during lunches and appropriate smokos. There is a camp on site as you're aware and it would be a matter of just arranging a suitable time and a balloting process on the site.

PN28

THE COMMISSIONER: Because you understand we have to have a further hearing on it where the employees are given an opportunity to attend and there's all of that process we have to go through.

PN29

MR WINTER: Yes.

PN30

THE COMMISSIONER: So that's why I don't want to get into the detail now.

PN31

MR WINTER: Yes.

PN32

THE COMMISSIONER: But I'll hear from Ms Brown and see what she says of that. What's the company's position, Ms Brown?

PN33

MS BROWN: Thank you Commissioner. I guess we're sort of in the same stage where we're wondering how far to go at this point in time. In relation to - - -

PN34

THE COMMISSIONER: Well I need to know whether there is going to be an argument against it based on them not meeting the pre-conditions or something like that so that we can deal with that in an efficient way.

PN35

MS BROWN: At this stage Roche really don't have any such argument that they haven't met any of the conditions of the Act or that there's anything under section 461 that would impede the ballot occurring or any of those requirements haven't been made with. We seem to agree with the AWU that the technical requirements of the Act in that regard have been followed. If a subsequent hearing is to be held in relation to - - -

PN36

THE COMMISSIONER: Well it must be held.

PN37

MS BROWN: Must be held in relation to the employees, the attachment and the draft order that the AWU have proposed in that regard, we don't have any concern with that. I guess Roche have asked me to communicate that when that hearing is held they may wish to make further submissions at that point but at this stage they're not saying that there's anything in terms of deficiencies that they would need to argue at that point in time.

PN38

THE COMMISSIONER: Well okay. I understand that submission but I'm going to, we're going to have to have the hearing on Friday. Well we can do it tomorrow afternoon I think, can't we Doug? It's a question of whether – there's communications to the site so there's no problem about them putting the notice up is there?

PN39

MS BROWN: Not as far as we know.

PN40

MR WINTER: The notice is up I've been instructed Commissioner.

PN41

THE COMMISSIONER: Well how can they be because they don't know when the hearing is. See the hearing is not today. This is simply a mention and directions. There will be a hearing, well subject to what you might say about it, I would have thought tomorrow afternoon is probably the most effective time at which – so we've got to put a notice out today or I've got to send a direction to the employer to put the notice up stating that there's a hearing tomorrow and they've got an opportunity to come along and present anything they want to present.

PN42

That's the step that has to be taken so there can't be a notice there now. Of that type anyhow. There might be some other notice but there can't be a notice of that type because there's no hearing been listed. So we have to do that. You don't see any difficulty about that happening - - -

PN43

MS BROWN: No not at all.

PN44

THE COMMISSIONER: If the order was issued following the proceedings this morning. Okay well I think in all fairness if Roche is to make any further submissions about whether the ballot ought not, well ought not be conducted for some reason or another, I have to for expedition purposes, I think you should advise my associate and the AWU by 10 o'clock tomorrow in writing that you propose to do that with an outline of your submissions.

PN45

MS BROWN: Yes Commissioner.

PN46

THE COMMISSIONER: Is that acceptable?

PN47

MR WINTER: That's fine Commissioner.

PN48

THE COMMISSIONER: All right. Well we'll adjourn these proceedings now. I will make orders that are not vastly dissimilar from those that you've proposed in respect of the procedural steps that need to be taken prior to tomorrow's hearing and we'll adjourn the proceedings until 2.15 tomorrow afternoon and I direct the company that if it wishes to oppose the application for any reason then it's to provide advice of that to my associate and to Mr Winter by 10 am tomorrow together with an outline of argument that they're proposing to make. Is there anything further the parties wish to raise?

PN49

MR WINTER: No Commissioner.

PN50

THE COMMISSIONER: On that basis the proceedings are adjourned. Thank you.

<ADJOURNED UNTIL THURSDAY 27 JULY 2006 [10.46AM]