BP2007/2712, Transcript of Proceedings [2007] AIRCTrans 212 (26 April 2007)

TRANSCRIPT OF PROCEEDINGS

---

Workplace Relations Act 1996 16777-1

COMMISSIONER GAY

BP2007/2712

AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION
AND
AUSTRALIAN AUTOMOTIVE AIR PTY LTD
s.451(1) - Application for order for protected action ballot to be held
(BP2007/2712)

MELBOURNE

10.04AM, FRIDAY, 13 APRIL 2007

PN1

MR A SACHINIDIS: I appear on behalf of the union together with MR D SMITH the assistant national secretary of the division.

PN2

MR R DIXON: I seek leave to appear on behalf of the company, together with MS R FAIRWEATHER.

PN3

THE COMMISSIONER: Yes, thanks. What do you say about the application for leave, Mr Sachinidis? If anything you may say nothing about it.

PN4

MR SACHINIDIS: Yes, I might say nothing. It is a valid application, and in relation to the matter I don't see any reason why there is an application for leave. Having said that - - -

PN5

THE COMMISSIONER: All right. Well, I'll hear what - sorry, perhaps I will let you go on. Having said that?

PN6

MR SACHINIDIS: Well, having said that, I mean, subject to what Mr Dixon might say, I mean, I don't fundamentally oppose, if it please the Commission.

PN7

THE COMMISSIONER: Yes, thank you. Is there some reason, Mr Dixon, why that necessary hurdle is cleared?

PN8

MR DIXON: Well, Commissioner, under section 105 as it is now, can I say to you that this is the first time that the company has been involved under this new Act, which of itself is a daunting task. It's the first time it's going through this intricate process which brings the potential of industrial action to it. It does not have the experience before you in this Commission, and fourthly, the negotiating team unfortunately who were part of the negotiations who may have been of assistance to some degree, Ms Fairweather was part of them, but two of the other members, the more senior members are on leave and on shutdown, so the company is not able to be properly represented before you.

PN9

Commissioner, I'm aware of the need not to go into legal technicalities. I have been experienced in the area, I trust I can assist in moving this matter to a resolution acceptable to everyone, and we are simply here to help the Commission.

PN10

THE COMMISSIONER: Thank you, Mr Dixon. I'm going to grant leave.

PN11

MR DIXON: Thank you.

PN12

THE COMMISSIONER: Yes, Mr Sachinidis?

PN13

MR SACHINIDIS: Thank you, Commissioner. Commissioner, the union has provided, in connection with its application, extensive documentation setting out the requirements as set out in the relevant section of the Act in connection with a ballot. Also, Commissioner, the parties in the context of negotiations have obviously met on numerous occasions, exchanged documentation in respect of the bargaining, and at this stage, kind of like what has been put to you in support of leave to appear in these matters, it seems to me that the company has had, or it has a good knowledge and experience of the new legislation. It has put that to the union in no uncertain terms as to what it seeks to do. So I believe the company is well versed in the legislation and what it seeks to do.

PN14

So part of our difficulty at the moment, Commissioner, has been the application, if you like, for want of a better term, of the new Act and its requirements in respect of matters to be contained in agreements. And I'm alluding here to correspondence having received from the company on various proposals put by the union, which the company has formed the view that they are prohibited and not able to be included in any agreement.

PN15

Now, part of some of those matters which that position relates to, Commissioner, we have indicated to the company through correspondence that that is not the case, and the position of the union in terms of those positions can and should be in an agreement. So partly we have a situation where the parties are apart on certain aspects being included, and that's an issue in our submission because of the extensive relationship between the parties over the years.

PN16

It seems to me in short what has transpired in the recent negotiations, Commissioner, is a departure from that historical relationship, a departure to the extent where the employer now has indicated that it seeks to put the position out in the workplace with a view to employees having a vote in terms of a company proposal versus a negotiated position consistent with what has transpired in the past. So that's a stark departure, Commissioner, and one which worries us.

PN17

So in terms of advancing today's application it may well be prudent for us to adjourn into conference to deal with the circumstances which are currently in place. We understand the company proceeds to present a proposed agreement to employees on the 17th of this month, and there are, or there is another application before the Commission in respect to the negotiations for a new agreement and that's scheduled next week.

PN18

THE COMMISSIONER: Is there? I'm not aware of that. Who is that before? Is that before me?

PN19

MR SACHINIDIS: Commissioner, that has been listed before Commissioner Blair, and I understand it's scheduled for 1 pm on Monday.

PN20

THE COMMISSIONER: Yes. It strikes me it would be useful, as a domestic observation, but it strikes me it would be useful in filing material like this to put something, that sort of information on the file, because my brother Blair, who I met in the corridor a matter of minutes ago, would be, I would think, as keen as would I be if I had the first matter to ensure that, as the Commission has for many decades, that there is one person who handles these things and to avoid the obvious complications that can otherwise arise, but also just to assist the parties. Anyway, thanks for that, Mr Sachinidis. So there's a hearing next week. And what's that about again? What's that about, Mr Sachinidis?

PN21

MR SACHINIDIS: Sorry?

PN22

THE COMMISSIONER: What is the matter that Commissioner Blair has listed next week?

PN23

MR SACHINIDIS: Commissioner, that's an application to assist the parties in the context of their negotiations for a new agreement.

PN24

THE COMMISSIONER: Very well, yes.

PN25

MR SACHINIDIS: Yes.

PN26

THE COMMISSIONER: All right. So essentially you think it would be useful for there to be a conference now, is that right?

PN27

MR SACHINIDIS: I think at this stage in terms of the application before the Commission, yes, I do.

PN28

THE COMMISSIONER: All right, thank you. Mr Dixon?

PN29

MR DIXON: Commissioner, the matter before Commissioner Blair was a matter which I was seeking to raise, as I think it is fairly useful for the Commission to know generally, but also it's very relevant here because it is seeking to invoke a dispute resolution process which is this bargaining period. It's a Division 4, Part 13 application, it is the request for the Commission to assist in a dispute resolution process in a matter arising in establishing a new agreement.

PN30

THE COMMISSIONER: Raised by the firm or by the union?

PN31

MR DIXON: By the union, Commissioner. And it seems to us that one of the aspects so relevant in these sort of applications generally is the genuinely intending to reach agreement, and whether that's taken place. And it would seem to us that that step, that is, going before the Commission to assist in getting to yes in a bargaining process is the next step rather than the application here before you, and to some degree we believe it cuts across the application here before you.

PN32

I am aware, Commissioner, of the words the Commission as constituted said, the parties don't have to have reached an impasse before they come for a secret ballot application. But surely they have to genuinely attempt to negotiate.

PN33

THE COMMISSIONER: There's no doubt about that.

PN34

MR DIXON: And one of the ways one would think would do is, if there has been an inability or there's been progress to some degree directly then the use of the Commission as a mediator, conciliator or other resolution assistant provider would be the next step. And that's where we would see this going. So we would see this as a direct contradiction in the two applications. Commissioner, I invariably - - -

PN35

THE COMMISSIONER: It seems to be the system, Mr Dixon, though doesn't it? What you've just said would have had possibly unstoppable force at some stage in the past - I'll have to avoid these sorts of observations - but, well, it's a bit old fashioned isn't it, the principles that you're enunciating. But nevertheless I think I know what you mean.

PN36

MR DIXON: Commissioner, we all have to be careful about the reservations we may express about the statutory scheme under which we act.

PN37

THE COMMISSIONER: Certainly. They were just general observations.

PN38

MR DIXON: Well, I might say I can express great reservations particularly in this process, and the company - and I must say at least where I was going, or will be going if we make submissions to you, Commissioner, because I think - let me speak quite plainly, two days timeline is totally unrealistic, and that's my view, not the company's, and that caused problems, and that's causing problems with this application. But Mr Sachinidis has raised a question of whether we go into conference. We thought we were - we had a number of matters here which we think are fatal to any application here before you today or generally.

PN39

One is, for example, that the bargaining period only started on the 4th - sorry, the notice was served on the 4th of this month. If, as is provided, the bargaining period then runs for seven days after the date on which that notice is given then it starts at one minute past midnight on the 12th of this month. This application was made on the 11th, there have simply been no meetings whatsoever within the bargaining period, there just aren't any, and there's just no one around, there has been no meetings. The company has been on shutdown since 5 April until the 16th, so there's no one there. So there have been no meetings within the bargaining period, and this talk of genuine negotiation falls foul there.

PN40

But more practically, Commissioner, we would be raising with you under 451(2) that - sorry, 451, that all the parties - sorry, apologies, it's 457(2), whether all persons have had reasonable opportunity to make submissions. We have some matters which we'd like to raise with you which go back to my comments about the procedure, and we feel we're prejudiced on that. But there is no way that the members of the AMWU, employees of this company, have had an opportunity. They are not at the workplace and have not received notice of this hearing.

PN41

We have posted it in accordance with the order, which I can come to, but it is fateful. There is just no way you can be satisfied, Commissioner. They have not had the opportunity of having put anything before you. Foreshadowing those arguments, and that comes back against to the same question that an order was made which we were not aware of, would be made, and I understand that's a procedure of the Commission - and please don't take this as a criticism at all - as constituted, but of the procedure set out in the Act and the way the Commission does it.

PN42

All that leads us to say it's fairly fateful being here both today and/or generally. But if the AMWU wishes to go into conference and those of assistance, we have no objection to it but we reserve our rights to argue that it is not - we can go no further today and the matter should be struck out.

PN43

THE COMMISSIONER: Thanks, Mr Dixon. Mr Sachinidis, I'm conscious that there are some things you'd probably want to say in reply, but we're going to have a conference now, and should there be a need to put something on the record later then I'd be unlikely to deny the parties that opportunity. We'll now go off the record.

<SHORT ADJOURNMENT [10.17AM]
<RESUMED [2.07PM]

PN44

THE COMMISSIONER: The parties have spent the time that will be reflected in the transcript in a series of conferences this morning and this afternoon, and it's very pleasing that while it remains the case that all is not smooth sailing, there has been a body of agreement reached which will hopefully provide the parties with an opportunity to maximise the likelihood of an agreement in the short term, and then provide in the alternative for a course of action which is nevertheless able to be charted. And, Mr Dixon, I think it falls to your lot to put this on the record.

PN45

MR DIXON: Thank you, Commissioner. Can we express our gratitude for your assistance in the conduct this morning. The parties have reached the following understanding which we do seek to record, which is as follows. They will meet, both parties will meet on Monday morning at a scheduled hearing in the Commission with the intention of exploring and moving - as far as possible, and moving towards an agreement between the company and the union in a union collective agreement. That is the intention of, as we understand it, both parties, and the day has been set aside for that.

PN46

If an agreement is achieved between the union and the company in a union collective agreement that agreement will then be progressed to be approved and become operative and, if necessary, go through whatever process that will then follow to get the approval of the employees, and then registration. If there is no agreement then the agreement as contemplated by the company will be put to the employees on the foreshadowed date of Tuesday, 17 April. The method of voting of approval will be by secret ballot. That will be conducted simply with a request as to whether the employee agrees with or disagrees, accepts or rejects the proposed agreement. It will be carried out with the union and the company having representatives in the voting process and scrutineering in the counting process.

PN47

There is acceptance, as we understand it, indicated by the AMWU that that is the agreed procedure, and there will be no objection to that procedure which is ambiguously referred to in the information statement handed out to the employees. As part of that process, if there is no agreement and if the matter was to go to a vote on the Tuesday, if the parties are unsuccessful on the Monday, both sides have agreed that they will not disparage one another in the lead up to the ballot on the Tuesday. Whilst they recognise that both sides will put forward their point of view to the employees, they will not indulge in a slanging match or disparagement one of the other but, if I can borrow the Commission's words, there will be thoughtful analysis from each side presented to the employees to assist them in their decision.

PN48

There will be steps taken to ensure that the only people who are voting, if the matter does go on Tuesday, again if the parties are unsuccessful on Monday, that only those people who are covered by the agreement will be voting on the agreement, and as part of this understanding it is our understanding that the AMWU will ask for this matter today, this application to be adjourned. We understand that they will have liberty to seek to bring it back on if thought appropriate in the circumstances.

PN49

Commissioner, that's as we recall our view of the understanding. If I can be corrected then I'm happy to have anything clarified. If it please.

PN50

THE COMMISSIONER: Thanks, Mr Dixon. Yes, Mr Sachinidis?

PN51

MR SACHINIDIS: Yes, thank you, Commissioner. Commissioner, the submission by Mr Dixon in terms of what is going to be played out next week we concur with. Maybe from my point of view there's two processes that are in play next week. The process, if I can refer to it as option A, or the first option is the process of continued negotiations with a view to reaching a collective agreement with the union, and there is of course proceedings in the Commission next week for that to happen, and the parties, as I understand it, are committed to that.

PN52

Now, failing that there is the other option that has been articulated, and that option is in essence a position where the company failing agreement will provide the company proposal to all workers at AAA for the purposes of approval or rejection, and in that process the parties will, as described in terms of providing information to the members, we will do that in such a way that does not put either parties' or, if you like, reputations at stake, but more importantly it's designed to place or give members an informed position upon which they can decide to either accept or reject the agreement. And we are committed to that.

PN53

In respect to the parties undertaking the scrutiny of the ballot process itself we, of course, agree with what's been put, the parties will take charge of that. However, the other important element is, and we've discussed this in conference, Commissioner, is the roll, the extent of roll that will set out the employees who are entitled to vote, and that needs to be something that needs to be exchanged between the parties and agreed to obviously prior to the ballot. So I'm confident that that is able to be provided and exchanged so that both parties have a clear indication of the number and extent of people that are going to be voting on the Tuesday, should no agreement transpire on the Monday.

PN54

THE COMMISSIONER: Yes.

PN55

MR SACHINIDIS: I don't think I can add anything more, Commissioner. I think that sets out what is likely to transpire next week, and from our end we would hope that the parties are able to reach an agreement. If it please the Commission.

PN56

THE COMMISSIONER: Yes, thanks, Mr Sachinidis. Perhaps from a housekeeping point of view, the conference is scheduled for 10 o'clock is it on Monday with Commissioner Blair? Do you have a listing at the moment?

PN57

MR SACHINIDIS: Commissioner, I am sure that it's 1 o'clock, 1 pm on Monday, 16 April.

PN58

THE COMMISSIONER: All right. Well, there's nothing to stop the parties doing what I think they've really evinced an intention to do, and that is to make full use of the day, and then obviously if it's 1 o'clock that will go ahead.

PN59

MR DIXON: Sorry, Commissioner.

PN60

THE COMMISSIONER: Of course, this being one of the cases which frequently and fortunately are rare, where there are, closely proximate in time, two matters involving the same parties involving two members of the Commission. I will naturally speak with Commissioner Blair today and let him know about today's proceeding and what awaits him on Monday, and I'm sure he'll be redoubling his efforts. Thank you very much. I'll now adjourn, noting the liberty for the union to apply. Yes, Mr Dixon?

PN61

MR DIXON: Sorry, Commissioner, you just - - -

PN62

THE COMMISSIONER: I'll now adjourn on that basis.

<ADJOURNED INDEFINITELY [2.15PM]