BP2006/3049, Transcript of Proceedings [2006] AIRCTrans 953 (10 August 2006)

TRANSCRIPT OF PROCEEDINGS

---

Workplace Relations Act 1996 15457-1

COMMISSIONER BLAIR

BP2006/3049

AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION
AND
WILLIAMSTOWN SHEETMETAL PTY LTD
s.451(1) - Application for order for protected action ballot to be held
(BP2006/3049)

MELBOURNE

2.13PM, MONDAY, 24 JULY 2006

THE FOLLOWING PROCEEDINGS WERE CONDUCTED VIA TELEPHONE CONFERENCE AND RECORDED IN MELBOURNE

PN1

MS K WILD: I appear with MR L DIEHM for the AMWU.

PN2

MS N BOEHM: I appear for Williamstown Sheetmetal and with me today I have MR S WATTS, the director of the company.

PN3

THE COMMISSIONER: Thank you. My apologies for the late start. I was tied up on a phone call. Ms Wild.

PN4

MS WILD: Thank you, Commissioner. Commissioner, today he union is seeking a ballot order for protected industrial action at Williamstown Sheetmetal to be made and we're also seeking that this is an attendance ballot. Commissioner, there are approximately 12 employees who are engaged in sheetmetal and metal fabrication that would be subject to the order. The AMWU have tried and continue to try to genuinely reach agreement with the company and have done so since the bargaining notice was lodge on 13 April. Commissioner, I might leave my submissions at that for now, so I have an opportunity to talk with Ms Boehm and we propose that if the Commissioner was of the mind, that we might go into conference to talk through a few issues after Ms Boehm has had an opportunity to put a few things on the record.

PN5

THE COMMISSIONER: Okay, that's fine. Thank you. Yes, Ms Boehm.

PN6

MS BOEHM: Thank you, Commissioner. Thank you, Ms Wild. I confirm that the company does not oppose the application made by the union today, Commissioner. We note that we have received the application, but we didn't receive the various attachments and Ms Wild has told me that we will be having an opportunity to receive and review them today. The company confirms that it has complied with the initial orders and the directions issued by the Commission with respect to this matter and have posted the relevant application and directions on the notice board. I have two points I'd like to raise at this stage and, yes, I am happy to talk about them in conference.

PN7

Briefly, the first point relates to the specificity of the question and secondly I have an issue I'd like to raise with respect to an application I'd like to make today in accordance with section 459 of the Act that the Commission make an order and direct the Australian Electoral Commission to forward to the Commission a final list of the persons who are eligible to be included on the roll of voters for the ballot compiled by the AEC in accordance with section 466. Commissioner, I have some points that I can raise in support of that application and I am happy to do that in conference.

PN8

THE COMMISSIONER: Okay. Thank you. The Commission will go into conference.

<SHORT ADJOURNMENT [2.17PM]
<RESUMED [3.08PM]

PN9

THE COMMISSIONER: This is an application under section 451(1) for an order for protected action ballot to be held. The applicant is the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union and the respondent in this matter is Williamstown Sheetmetal Pty Ltd. The Commission understands that the ballot being proposed or being sought by the applicant in this matter is not opposed by the respondent. Therefore, given that it is not opposed, the Commission will require Ms Wild to respond to the relevant provisions of the Act in order for the ballot to take place and in order for any action that arises from that ballot to be protected industrial action. Ms Wild, in regards to section 451(1), the AMWU is an organisation able to apply for a ballot order in satisfaction of that section of the Act?

PN10

MS WILD: That's correct, Commissioner, we are.

PN11

THE COMMISSIONER: And consistent with section 423, the AMWU has advised Williamstown Sheetmetal Pty Ltd of its intentions to make a section 328 union collection agreement which does not deal with prohibited content?

PN12

MS WILD: That's correct, Commissioner. The union forwarded through on 13 April this year an initiation of bargaining period notice to the employer and that bargaining period notice was given the number 2006/2494.

PN13

THE COMMISSIONER: The application for a protected action ballot was made by an authorised person of the AMWU and I note on file there is a notice of authorisation for an application for protected action ballot by Mr Julius Rowe, who is the national president of your organisation, is that correct?

PN14

MS WILD: That's correct, Commissioner.

PN15

THE COMMISSIONER: And he is authorised under your rules to do so?

PN16

MS WILD: He is, yes.

PN17

THE COMMISSIONER: The application for a protected action ballot was accompanied by a section 243 notice in particular as required by section 426 and you draw the Commission's attention to that?

PN18

MS WILD: Yes, that's at attachment C to the application, Commissioner, where we declare that the industrial action to which the application will actually not involve claims for prohibited content.

PN19

THE COMMISSIONER: Okay, and the application for a protected action ballot was accompanied by a declaration to the applicant pursuant to section 453(1)(c), to the effect that the industrial action to which the application refers - you've already agreed with that, haven't you? Is that right?

PN20

MS WILD: That's correct.

PN21

THE COMMISSIONER: Not prohibited matter and pursuant to section 454, proper notice was given to the respondent in this particular matter, Williamstown Sheetmetal Pty Ltd and that employees in order that they might make submissions and apply for directions, thereby satisfying section 457(2) and 458(1).

PN22

MS WILD: That's correct, Commissioner. We've also been advised that the company did put notices up around the workplace.

PN23

THE COMMISSIONER: And, Ms Boehm, you can confirm that?

PN24

MS BOEHM: I can, Commissioner.

PN25

THE COMMISSIONER: Thank you. Now, the final step is the advice to and the involvement of the Australian Electoral Commission which is the ballot agent in accordance with section 458(2) is also satisfied.

PN26

Mr Kean, it's Commissioner Blair. How are you? Mr Kean, the application as you're aware has been made and previously when the matter was listed for last week, initial orders and directions were issued and in those they had appropriate time frames, but as you were aware, that matter was deferred to allow the parties to have some discussions and we're back today and the Commission is satisfied that the requirements of the Act have been met and the application has not been contested by the respondent in this matter, so it's a matter now of having the involvement of the Australian Electoral Commission in setting out the time frame in which the parties must comply to allow the ballot to take place which I understand it is also not contested that it be a ballot by attendance.

PN27

MR KEAN: An attendance ballot, yes.

PN28

THE COMMISSIONER: Yes, and you'll have to excuse me if I'm a bit vague on this, but this is the first one that I've done.

PN29

MR KEAN: That's okay. It's a learning process for all of us.

PN30

THE COMMISSIONER: Yes. Can you just indicate what's now required and what time frame for things required to be done in?

PN31

MR KEAN: Okay. Well, I think we've already provided a minimum time frame to assist all the parties previously, but if we're assuming a ballot order today, then I would suggest - do we have any idea of how many sites and people at the various sites that we may be looking at here?

PN32

THE COMMISSIONER: My understanding is and it's been confirmed by Mr Watts who is the employer in this matter that it is one site and it is approximately I think about 12 employees.

PN33

MR KEAN: Twelve employees, okay.

PN34

THE COMMISSIONER: No, no, sorry, I understand there's about 20 employees according to Mr Watts, but the union says that there are about 12 union members.

PN35

MR KEAN: Well, can I suggest this, then, given that information? We're not talking about multi sites and large numbers and the reason I am asking is because if I could just take you through my thought processes here, we need to first of all get the lists from both the employer and the applicant to allow the compilation of the roll.

PN36

THE COMMISSIONER: Right. Can I just add to you there that the respondent through their representative, Ms Boehm, has sought under section 466 roll to be compiled by Commission or the ballot agent, that the ballot agent which is the AEC to compile the list, but a copy of that list is to be forwarded to the Commission which shall be kept on file on a confidential basis and that is in order to I suppose ensure that if there were some matters that may arise under section 496 which is an order under the Act, that that list is available?

PN37

MR KEAN: Yes, okay. I am just a little bit confused as to why the list wouldn't - why people wouldn't think the list would be available if the AEC was ordered to produce it in any event. We have to maintain the roll for 12 months under the legislation. In any event, I mean, we're happy to abide by any order that you wish to make in respect of that, but from a logistics point of view, we're only talking about 12 employees here or possibly 12 employees and I would imagine that - would there have already been interim orders issued, I think there have been, for both parties to provide a roll to the AEC by tomorrow?

PN38

THE COMMISSIONER: Yes, there was.

PN39

MR KEAN: There was? Yes, and I think that would have said 4 pm. Is that correct?

PN40

THE COMMISSIONER: That's correct.

PN41

MR KEAN: There's a couple of options here. If you stick with that order and it's 4 pm tomorrow, there's another requirement which is regulation 9.8. Regulation 9.8 requires the ballot agent to prepare a notice to employees and provide them with particular information and, importantly, a contact name if they wish to confirm whether they are on the roll or not. That allows them, of course, if they're not on the roll, to take action pursuant to 468(1) and (2) in respect to getting added to the roll, et cetera, et cetera. Now, there are 12 employees here and in some instances, the AEC has provided information I think in the past on minimum time frames that would suggest that you could, if you wished, close the roll at 10 am tomorrow - sorry, provide the roll by 10 am tomorrow and then close the rolls at 5 pm.

PN42

Now, that's one option. If the roll is provided to us at 4 pm tomorrow as per the current instruction or order, then I would say it's probably - well, depending upon what you think, but there may not be sufficient time to close the roll tomorrow, so if the roll was to close tomorrow, then we could get the roll earlier in the day, if we could get it by 10, then it would allow us to get a notice to the employees by a notice board by 10 tomorrow and then they would still only have seven hours to satisfy themselves or find out for themselves whether they're on the roll or not. Now, the option, of course, is that you stick with the 4 pm and close the roll maybe the following day at 5 pm, but the ballot cannot open under my reading of the legislation until then two working days after the roll closes which would mean that it could not then open until Friday.

PN43

THE COMMISSIONER: Okay.

PN44

MR KEAN: Does that make sense?

PN45

THE COMMISSIONER: It does.

PN46

MR KEAN: So therefore the close of the roll time has a key importance when you conduct the ballot.

PN47

THE COMMISSIONER: Relying on your experience, what would be an appropriate time for them to provide a list?

PN48

MR KEAN: Well, depending upon the parties, if they're agreeable, if they could provide it to us by 10 am.

PN49

THE COMMISSIONER: Tomorrow?

PN50

MR KEAN: Tomorrow. If they were to provide it by 10 am, we could close the roll at 5 pm which would mean that people could ring between - now, we would get the notice that I referred to under regulation 9.8, we would ask you to put in your orders that the employer place that notice on notice boards, although this is in Melbourne, is it not? No, we can do this. Sorry, forget I said that. We would have a notice place on the notice board or a prominent location in the workplace site at 10 am tomorrow which would mean from 10 am until 5 pm, the employees could ring and find out whether they are on the roll. Now, the issue arises if they're not.

PN51

THE COMMISSIONER: Right. I seem to be getting signals from Ms Boehm that 10 am tomorrow is not - - -

PN52

MR KEAN: That's okay. Well, it's okay by us. Well, I then suggest that you stick with the 4 pm and close the roll the following day, because I don't think there's enough time if you close it at four - to close at 5 pm tomorrow if we're only getting the roll at 4 pm.

PN53

THE COMMISSIONER: Yes, fair enough.

PN54

MR KEAN: So I think that's probably maybe a little ambitious, but that's up to you people again, but I would probably suggest that you think about if it's going to be 4 pm, closing the roll the following day and if you're going to do that, then I think you're probably better off maximising the time by making it 5 pm.

PN55

THE COMMISSIONER: For the close of roll?

PN56

MR KEAN: The close of roll, because you need the two clear days, anyway. If you were to close it any earlier, you still have to start the two days before you can conduct the ballot from the Wednesday, in any event, is my understanding of the legislation. I will stand corrected, though. It's under section 463, Commissioner. You'll notice under 463 it says:

PN57

Allowing two working days from the close of the roll.

PN58

And the two working days I am saying are two clear days.

PN59

THE COMMISSIONER: Yes, two clear days. Okay.

PN60

MR KEAN: So therefore it would mean that the roll of voters would close 5 pm Wednesday, so Thursday and Friday would be the clear days, the ballot would be Monday next week at the earliest.

PN61

THE COMMISSIONER: Okay, the 31st.

PN62

MR KEAN: Yes.

PN63

THE COMMISSIONER: A significant day in the history of the world.

PN64

MR KEAN: Yes.

PN65

THE COMMISSIONER: Well, it is. It's my birthday. Does anyone, Ms Wild or Ms Boehm, have a problem with what's being proposed by Mr Kean?

PN66

MS BOEHM: No. We would be happy with that procedure, Commissioner.

PN67

THE COMMISSIONER: Ms Wild.

PN68

MS WILD: We don't oppose it, Commissioner.

PN69

THE COMMISSIONER: Okay, so the rolls will be provided by 4 pm on Tuesday, 25 July, and the roll will close by 5 pm on 26 July and then the ballot would be conducted in attendance on 31 July 06.

PN70

MR KEAN: Yes, and, your Honour, that still stays within the spirit of the legislation in the desirability to have the elections conducted or results made by - the term is within 10 days of the ballot order being made, so you're not compromising anything in there. Now, could I just ask a question about hours of polling?

PN71

THE COMMISSIONER: Yes.

PN72

MR KEAN: What time would we be required to be in attendance at the location to take these votes?

PN73

THE COMMISSIONER: Ms Wild.

PN74

MS WILD: Commissioner, we proposed that the attendance ballot take place in the lunch break and the lunch break on my instructions goes from 12.30 pm until 1 pm.

PN75

MR KEAN: Sorry, I missed that?

PN76

THE COMMISSIONER: 12.30 pm until 1 pm.

PN77

MR KEAN: Half an hour? Is that going to be sufficient time to do this, do you feel, or do you need a second time? As can happen during lunch breaks, there are other breaks that we can also be there for. I will leave it up to you people to decide, but it may get a little bit cramped in that half hour to take, it the number is 12, the 12 votes, but we'll be guided by you there. If we're there, we can stay. Just if it's not during a break, I don’t think it complies with the Act.

PN78

THE COMMISSIONER: 12.30 to 1.30 for the vote to be taken, 12.30 to 1.30?

PN79

MS BOEHM: Yes, that's fine, Commissioner.

PN80

THE COMMISSIONER: Ms Wild.

PN81

MS WILD: Yes, Commissioner.

PN82

THE COMMISSIONER: Mr Kean, it appears 12.30 until 1.30 is sufficient time. Is that okay with you?

PN83

MR KEAN: That's okay with us, yes, and is it only one day? It's going to be just a one day ballot, the Monday?

PN84

THE COMMISSIONER: Just the one day ballot, Ms Wild?

PN85

MS WILD: Yes.

PN86

THE COMMISSIONER: And, Ms Boehm, yes?

PN87

MS BOEHM: Yes.

PN88

THE COMMISSIONER: Yes, Mr Kean.

PN89

MR KEAN: That would mean, then, Commissioner, that we would declare - we would count the ballot that same day and inform the parties of the result, but pursuant to section 476, we would declare formally the following day.

PN90

THE COMMISSIONER: On the Tuesday?

PN91

MR KEAN: Yes, so declaration would be Tuesday, the 1st, another famous day.

PN92

THE COMMISSIONER: That's your birthday?

PN93

MR KEAN: No, no, the horses' birthday, isn't it?

PN94

THE COMMISSIONER: Well, I won't say anything about nags.

PN95

MR KEAN: Okay. I don't see any difficulties with anything that's proposed there, so if everyone is happy, we certainly would have no problem there and I have had a read of the draft orders and whatever this morning and I didn't have any particular questions, if you did phone, other than the timetabling issues.

PN96

THE COMMISSIONER: Now, there is as I understand it an issue regarding the questions on the ballot. It says at point 8:

PN97

Questions to be put to the relevant employees, in support of reaching a union collective agreement with your employer, do you endorse the taking of protected industrial action against your employer which may involve strikes, four hour stoppages, bans (including overtime bans and call-back bans).

PN98

So the only addition there is four hour stoppages.

PN99

MR KEAN: Four hour stoppages, yes. That doesn't affect us at all, Commissioner.

PN100

THE COMMISSIONER: Okay.

PN101

MR KEAN: That would be in the actual order itself.

PN102

THE COMMISSIONER: That I issue, yes. Okay, thank you very much for that.

PN103

MR KEAN: Could I just ask another question? One of the things we're required to put on the ballot paper is the nature of the action. I would imagine that the nature of the action proposed is pretty much what's in that question, although some people show the nature differently in the application, the initial application that they would have put to you, so we would show the nature of the action involved the taking of industrial action against your employer which may involve strikes, four hour stoppages, bans (including overtime bans and call-back bans).

PN104

THE COMMISSIONER: Right.

PN105

MR KEAN: So we would show it in those terms unless it is shown in the original application as different, so if no-one has an issue with that, that's fine. Actually, in the original application it says:

PN106

The proposed industrial action involves strikes, stoppages and bans.

PN107

So it doesn't have four hour stoppages in there.

PN108

THE COMMISSIONER: No.

PN109

MR KEAN: So if you could just instruct us to show the nature of the industrial action in the terms of the question, that would be fine.

PN110

THE COMMISSIONER: Okay, so can you just run through that with me again so I am just clear?

PN111

MR KEAN: On the original application, it has nature of industrial action proposed. On form 1 of schedule 1, it sets out the information that is to be put on the ballot paper and it talks there about the nature of the industrial action proposed and what we have been doing here is taking some guidance from what was on the original applications of applicants to date, but where it hasn't been consistent with the question, we've worked it into being consistent with the question. It's not a problem. It's something that we could adjust ourselves, in any event, but there is a slight inconsistency between the application because of the words four hour stoppages being put in, so it's now a little different to what the original application says.

PN112

THE COMMISSIONER: Okay.

PN113

MR KEAN: Does that make sense, or am I being vague?

PN114

THE COMMISSIONER: No, no, no, it's fine. It's just confusion reigns supreme.

PN115

MR KEAN: That's all right. As I said earlier, we've been trying to come to grips with some of these matters ourselves, Commissioner. We think we've got it pretty right now, but I just wanted to point out that we weren't quite sure as to whether or not knowing the nature of the proposed industrial action was meant to be taken from the applications and transposed in that way on the ballot paper, rather than just repeating, pretty much repeating what's in the question in any event.

PN116

THE COMMISSIONER: All right, thank you for that, Mr Kean. Is there anything that Ms Wild and Ms Boehm wish to raise with Mr Kean?

PN117

MS BOEHM: No, thank you, Commissioner.

PN118

MS WILD: No, Commissioner.

PN119

THE COMMISSIONER: Thanks, Mr Kean.

PN120

MR KEAN: Thank you very much.

PN121

THE COMMISSIONER: Now, what were you pointing to, Ms Wild?

PN122

MS WILD: I was just showing you on the application, Commissioner, where the nature of the industrial action or proposed industrial action was set out. It's on page 2 of the application that it's referred to.

PN123

THE COMMISSIONER: Yes, proposed protected industrial action, yes. Thanks. Is there anything else? Hopefully we will get everything in order. Thank you very much. The Commission stands adjourned.

<ADJOURNED INDEFINITELY [3.43PM]