BP2007/2202, Transcript of Proceedings [2007] AIRCTrans 22 (22 January 2007)

TRANSCRIPT OF PROCEEDINGS

---

Workplace Relations Act 1996 16385-1

COMMISSIONER BLAIR

BP2007/2202

AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION
AND
MAYFIELD ENGINEERING PTY LTD TRADING AS METLABS
s.451(1) - Application for order for protected action ballot to be held
(BP2007/2202)

MELBOURNE

9.42AM, FRIDAY, 12 JANUARY 2007

Continued from 10/1/2007

Reserved for Decision

PN29

MR T MCCAULEY: I appear on behalf of the AMWU with
MS A DONNELLAN, MR G WARREN and MR J POULTER.

PN30

MS V LEEDS: I appear on behalf of Mayfield Engineering Pty Ltd and with me is MR K WALTON.

PN31

THE COMMISSIONER: Thank you. Yes, Mr McCauley.

PN32

MR MCCAULEY: Thank you, Commissioner. Perhaps a housekeeping matter first. If I could just hand up copies of facsimile and email receipts for the service of the actual ballot on both the employer party and the AEC just for the file.

PN33

THE COMMISSIONER: Thank you.

PN34

MR MCCAULEY: One other housekeeping matter is that we will seek to amend the draft orders sought to provide for an attendance ballot. Ms Donnellan can provide evidence as to why that is more efficient. We have provided for a postal ballot. However, due to the change of states covered by this ballot order as opposed to the previous ballot order, it may be more efficient to actually conduct an attendance ballot. We can go to that in more detail. I just put you on notice that we'll be seeking that.

PN35

THE COMMISSIONER: Right, okay.

PN36

MR MCCAULEY: Commissioner, we say we have met the technical requirements of the Act and we are ready to call Ms Donnellan to give evidence to support the application. However, first, for the expedient conduct of the matter, it may be preferable to hear briefly from the employer party as to any objections they have to the application so that we can set out how it might be most efficient to proceed this morning.

PN37

THE COMMISSIONER: Thank you. Yes, Ms Leeds.

PN38

MS LEEDS: Thank you, Commissioner. In view of the Commission's indication to Mayfield at the mention of this matter on 10 January, the statements that are in the transcript at paragraph number 19 and 20, what Mayfield proposes to do is to put a summary of the position of their opposition to the AMWU application on transcript and then to hand up a written submission which would expedite the proceedings.

PN39

I indicate that Mayfield does not wish to cross-examine Ms Donnellan and I also as a preliminary point notify the Commission that the order that was made on the 10th has now been distributed to relevant states and has been circulated amongst the workforce affected by that. We would indicate also that we will oppose the attendance ballot. If the Commission pleases.

PN40

THE COMMISSIONER: Mayfield operate across a range of shifts, don't they?

PN41

MS LEEDS: Yes.

PN42

THE COMMISSIONER: It's just not one shift?

PN43

MS LEEDS: Yes, they do, mainly day shift.

PN44

THE COMMISSIONER: In all three states that the ballot is intended to cover?

PN45

MS LEEDS: Yes.

PN46

THE COMMISSIONER: Thanks for that. Yes, Mr McCauley.

PN47

MR MCCAULEY: Commissioner, it might be most effective now to call Ms Donnellan to give evidence.

PN48

THE COMMISSIONER: Thank you.

<ANN DONNELLAN, AFFIRMED [9.46AM]
<EXAMINATION-IN-CHIEF BY MR MCCAULEY

PN49

THE COMMISSIONER: Yes, Mr McCauley.

PN50

MR MCCAULEY: Thank you, Commissioner.

PN51

Ms Donnellan, you've prepared a statement in this matter?---Yes, I have.

PN52

Do you have that statement with you?---Yes, I do, in front of me.

PN53

Are there any amendments you wish to make to that statement?---There are, Mr McCauley. There is one amendment at paragraph 31. There's an error in that paragraph on the fourth line down. What is currently says is that two notices of intention to take protected action were served on the employer. Only one notice was served.

PN54

Then it goes on to say:

PN55

Copies of these notices are attached.

PN56

Does that mean that only one copy of that single notice is now attached at attachment N?---That is correct. Only one notice is attached at attachment N.

PN57

At paragraph 37 you mention there correspondence between the AMWU and DEWR. Was that correspondence ever provided to the employer party?---That correspondence was. My recollection is that it was faxed to the employer in the afternoon of 16 November.

PN58

You state at the next paragraph that this agreement being sought is specific to the employer. This is the second protected action ballot during this bargaining period. Between that application and this application, is there any bargaining that has taken place which could cause you to change that statement in paragraph 38?
---The only other approach to an employer within this sector was made in South Australia by Peter Bell, the regional secretary of the TSO division. I am aware that he provided a draft document to Interco to cover the operations of South Australia for Interco, but I haven't seen a copy of that draft documentation.

PN59

If I can just ask you one further thing and that is in relation to the type of ballot that is now being sought. Are there any advantages in efficiency? Are there any advantages to - I will start again. Excuse me, Commissioner. Which type of ballot would you see as being preferable in respect of the current application before the Commission?---In respect to the current application, our preference would be for an attendance ballot. A postal ballot was conducted in the previous application and sought by the union having regard to in particular the operations in WA, the number of sites in WA. However, in this circumstance where the application is sought for a ballot in three states of South Australia, Victoria, New South Wales, recognising that the bulk of employees do return to work on 15 January and recognising that there is primarily only one shift in operation across those three states, it is our view that it be more efficient to conduct an attendance ballot, recognising the extent of these proceedings on this matter.

**** ANN DONNELLAN XN MR MCCAULEY
PN60

Thank you, Ms Donnellan. With those amendments, is the statement you have provided to the Commission with attachments A to P, is that statement true and correct?---Yes, it is.

PN61

Commissioner, I would seek to tender that statement.

EXHIBIT #AMWU1 WITNESS STATEMENT OF ANN DONNELLAN

PN62

MR MCCAULEY: Commissioner, I do note that we've gone to a few extra matters, if the employer wishes to cross-examine on those matters.

PN63

THE COMMISSIONER: Thank you. Yes, Ms Leeds.

PN64

MS LEEDS: I don't want to cross-examine Ms Donnellan. Thanks, Commissioner.

PN65

THE COMMISSIONER: Thank you. Why, Ms Donnellan, is it more appropriate to have an attendance ballot as opposed to a postal ballot?
---Commissioner, the length of the proceedings in this matter with regard to our seeking of an agreement with those three states, it is our view that an attendance ballot could be conducted through the course of next week, whereas our original application for a postal ballot would mean that the outcome of the postal ballot would not be achieved until late in January, subsequent to 29 January, so given the length of this matter, the views of the members in seeking a union collective agreement with the company, we would see that it would be expeditious to have an attendance vote through the course of next week.

PN66

Other than there being a great rush to try and kick the crap out of each other, a postal ballot would simply put off for a week, maybe two weeks at the most, any decision as to whether or not the members support such action, is that right?
---That is correct. It would delay.

PN67

But if there was an attendance ballot, although the company haven't addressed this, but I would assume that there would be some disruption, it might be minor, it might be major, I'm not quite sure, but there would be some disruption, is that right?---What, to the operations of the company?

PN68

Yes, to the operations of the company?---In terms of conducting an attendance ballot?

**** ANN DONNELLAN XN MR MCCAULEY
PN69

Yes?---In terms of the number of employees who will be balloted on the basis of our application, we would see that an attendance ballot would cause minimal disruption to the operations of the company. It could be conducted in a manner that would occur during the course of the day with minimal consequence to the company's operations.

PN70

All right. Ms Leeds, do you want to raise anything out of that?

PN71

MS LEEDS: Yes, I do, maybe while we're on the topic of the application for an attendance ballot. Commissioner, I have two points to make. One is that the order that was given by the Commission on the 10th related to a very specific application and that application was for a ballot with a time frame to be conducted by the Australian Electoral Commission. Now, the Commission issued that order on that basis and as required, the company has circulated that order to the employees and I just wonder if the union is proposing that that order be replaced by some other order, because I would have to question the validity then of the order that was made on the 10th.

PN72

The second point I wish to make is that on the question of momentum and the great interest that the AMWU has in not delaying the proceedings or taking industrial action or giving them whatever momentum they need, I would simply say this. They have a protected action period available to them which doesn't expire until I think the end of the month. I can check my submissions and confirm that and I also note that there was a notice issued by Mr Cameron, the national secretary, to the effect that the employees would take industrial action and nominated the industrial action. None of that industrial action has taken place.

PN73

There is no reason why the AMWU cannot continue other than the fact that
Mr Cameron has since withdrawn it, but there's no reason why the AMWU, being in the great hurry that it is to get this matter expedited, use that same period. They're my submissions on that point and the company submits that it's not appropriate at this stage for the union to seek to make that change, having been through their submissions on Monday and the Commission making the order that was sought and the company duly advising the employees of that order.

PN74

THE COMMISSIONER: Okay, thank you. Mr McCauley, do you wish to - - -

PN75

MR MCCAULEY: Just in relation to that submissions, Commissioner, I note that the directions and order that were issued on the 10th do not appear to make note of the type of ballot to be conducted. The attached application goes to the nature of the industrial action, the questions to be put, the proposal for authorised ballot agent and any further attachments, including draft orders, were not attached to that statement also attached with the initiation of bargaining period. None of those things vary at all whether an attendance ballot is conducted or a postal ballot is conducted.

**** ANN DONNELLAN XN MR MCCAULEY
PN76

There should be no confusion in relation to the orders and directions that were made on 10 January. In relation to Ms Leeds' second submission that there is no reason why the union and its members cannot take advantage of the previous protected action ballot, resolving to take industrial action, we would say that out of an abundance of caution that the notices subsequent to that protected action ballot were withdrawn, given the changed circumstances precipitated by the company offering non-union collective agreements in each of the four states and one of those agreements being accepted in Western Australia, now covering those Western Australian members who would have taken the industrial action noted in the previous protected action ballot, so out of an abundance of caution that was withdrawn.

PN77

We say there is nothing in the Act to say that being cautious and making another order specifically in relation to relevant persons being persons now in Victoria, New South Wales and South Australia, there is nothing in the Act to say that that is the incorrect method to adopt, especially in relation to the submissions of the employer in the previous application which in great detail went to who the relevant persons are with respect to a protected action ballot. We would say the question there would at least be open as to whether the relevant persons taking the action would need to be all those who voted for it, so with those questions being open, we have a desire to pursue the negotiations and pursue industrially the desires of our members, we withdraw that notice of intention to take protected action and we have made this particular protected action ballot application in relation to the relevant persons who are now those from Victoria, New South Wales and South Australia, so those are our submissions in relation to Ms Leeds' position.

PN78

THE COMMISSIONER: Thank you. Thanks, Ms Donnellan. You can step down.

<THE WITNESS WITHDREW [10.00AM]

PN79

THE COMMISSIONER: Is there anything else, Mr McCauley?

PN80

MR MCCAULEY: Commissioner, I have some submissions to make. I would make them with the caveat that we haven't yet seen the written submissions of the employer in this proceeding. I am not sure whether it would be more advantageous for them to be handed up and provided to us so that we could then make our substantive submissions in that context or whether you would prefer us to make some submissions, have those handed up and then make some reply. We're in your hands, Commissioner.

PN81

THE COMMISSIONER: I don't want to unnecessarily delay the process, so it just might be more appropriate I think if we hear from Ms Leeds and provide those written submissions, then Mr McCauley can then respond all at once if he requires. Is that okay?

PN82

MS LEEDS: Fine.

PN83

THE COMMISSIONER: Thanks, Ms Leeds.

PN84

MS LEEDS: Thank you, Commissioner. I just wonder if I can just put the statement on the transcript because it does relate to the submission.

PN85

THE COMMISSIONER: Yes.

PN86

MS LEEDS: And it won't take long and I can then pass up the submissions. Commissioner, on 8 January 2007 the AMWU made an application for a protected ballot order to be held. The AMWU by written notice dated 1 May 2006 initiated a bargaining period in accordance with the Workplace Relations Act. The bargaining period came into existence on 9 May 2006. On 25 August 2006, the AMWU pursuant to section 451 of the Act made an application for an order for a protected ballot to be held.

PN87

Now, the AMWU sought to ballot employees of Mayfield who are employed in the Metlabs division and who are bound by the proposed collective agreement. The first application as has previously been noted in this proceeding was heard and determined by her Honour, Senior Deputy President Acton. The application was granted and an order was made by her Honour requiring the AMWU to hold a protected action ballot. The ballot commenced on Friday, 1 December and concluded on Monday, 18 December.

PN88

The results of the ballot were declared on 19 December and industrial action was authorised by that first ballot. No industrial action of the type authorised by the first ballot has to date been taken. Mayfield submits that in these circumstances, the Commission is functus officio. Order number two of 2006 has been made, the ballot has been held and industrial action has been and continues to be authorised under that order. The Commission's task is therefore complete.

PN89

The AMWU has effectively conceded that the second application is the same as the first application. In this regard, Mayfield respectfully directs the Commission's attention to Mr McCauley's submissions at paragraph number 17 and paragraph number 18 of the transcript of 10 January 2007. The second ground that we oppose the application is on the basis of the 30 day time period required by section 478 of the Act.

PN90

Mayfield contests the application on the basis of that section. In effect, what the AMWU is seeking to do is extend the 30 day time period specified in subsection 478(1)(d) of the Act. The Act expressly provides a mechanism by which a 30 day time period specified in that subsection may be extended. The AMWU has not applied to extend the 30 day period pursuant to subsection 478(1)(d). Mayfield submits that the subsection of subsections 478(1)(d) and 478(3) have little utility if as an alternative the AMWU can simply apply for another protected action ballot.

PN91

This is particularly the case when the AMWU is largely relying on the matters it relied on in its first application. It's submitted that the second application should be assessed as an application to extend the 30 day time period and as a consequence, it must fail, because it does not meet the requirements set out in subsection 478(3) of the Act, namely that they require the employer's consent. The third ground, Commissioner, is no bargain.

PN92

Even if the Commission is minded to accept the AMWUs application - sorry, I will start that one again. Even if the Commission is not minded to accept that the AMWU is not prevented from making a second application as a consequence of section 478 of the Act, it's submitted that it must at the very least satisfy the Commission that it has continued to act in accordance with the requirements set out in section 461(1) of the Act.

PN93

If this is not the case, then the second application cannot be viewed as anything other than an application to extend the 30 day time period. By the AMWUs own admissions, it has not met with Mayfield since 8 December 2006, it has not put forward a proposal or an amended proposal since the results of a ballot, the first ballot, were declared, no industrial action of the type approved by the first ballot has taken place. As a consequence, it's submitted that at the very least since 19 December 2006 when the results of the first ballot were declared, the AMWU has not been genuinely trying to reach agreement with Mayfield.

PN94

The next ground for appeal relates to division 4, the secret ballots on proposed protected action provisions of the Workplace Relations Act. These were articulated in section 449(1) and in that regard we respectfully direct the Commission's attention to a decision of the honourable Giles J of the Federal Court in United Collieries v Construction, Forestry, Mining and Energy Union and in that case, Giles J noted that the purpose at the time that it needs to be considered, that consideration is in relation to the 30 day time period specified in subsection 478(1) of the Act. His Honour stated that the time limit is and I quote from the decision -

PN95

a time limit for commencement of industrial action, not a time limit for completion of industrial action. The bargaining period provides that limit.

PN96

He goes on to say:

PN97

In my opinion, the purpose of the provision is to ensure that the employees are voting on the real proposal based upon relatively contemporaneous circumstances. A commitment to relatively prompt action is involved, rather than simply giving an authority which can be held up the sleeve of those negotiating for the employees.

PN98

And further, in relation to the purpose of division 4 of the Act, His Honour notes:

PN99

They -

PN100

meaning the secret ballot provisions -

PN101

are to assist in ensuring that power is exercised by affected employees.

PN102

Now, in these circumstances, the employees were given a choice and they exercised that choice. The result of the first ballot was a resounding endorsement of the employees supporting the taking of the industrial action. There's no doubt about it, even we concede that. The AMWUs mandate was clearly identified as a result of that ballot. What the AMWU has subsequently failed to do is to meet its commitment implicit in the first application as intended by subsection 478(1)(d) of the Act.

PN103

Given that there is no variation to the claims by the AMWU since the first ballot was declared and the results declared, it's submitted that the second application, the one currently before the Commission, should be viewed as what it is. It's a delay tactic for the purpose of obtaining the benefit of the first application without the AMWU having to meet its commitments pursuant to subsection 478(1)(d) of the Act.

PN104

If the delay or the timing now sought by the AMWU is permitted, the rights given to the employees by provision 4, including the right to choose and section 478(1)(d), the right to relatively prompt action, are abrogated and therefore the prerogative is conferred not on the employees, but upon the AMWU. For these reasons, we say the second application should be dismissed. Now, the terms of the application is our second last ground for opposing.

PN105

By the second application, the AMWU want to ballot AMWU members employed by Mayfield in its Metlabs divisions in three states, New South Wales, Victoria and South Australia. However, it's submitted that the terms of the second application are deficient insofar as it's not clear that the proposed industrial action would be limited to New South Wales, Victoria and South Australia. This is borne out in the description of industrial action proposed and the questions to be put to employees as and I quote from the application -

PN106

any or all sites.

PN107

That could be understood to be inclusive of sites in Western Australia where protected action is no longer available to those employees. As a consequence, the second application again should be rejected in its current form and finally, Commissioner, we press and repeat and refer the Commission respectfully to the submissions we made in response to the application, the first application, before her Honour Senior Deputy President Acton. If the Commission pleases.

PN108

THE COMMISSIONER: Thank you.

PN109

MS LEEDS: I beg your pardon. I will hand up now the written submissions and, Commissioner, I referred to a decision of His Honour Giles J and for convenience, I will hand that up as well. Thank you. Commissioner, I would like those tendered, if I could.

PN110

THE COMMISSIONER: Yes. Thank you.

EXHIBIT #METLABS1 OUTLINE OF SUBMISSIONS

PN111

THE COMMISSIONER: Thank you. Yes, Mr McCauley.

PN112

MR MCCAULEY: Thank you, Commissioner. If I can just briefly go through and commence with the premise upon which much of the submissions of Ms Leeds proceeded. If we can turn to section 478 of the Act, it refers to when industrial action is authorised. Industrial action is authorised by a protected action ballot if and then one of those is (d) -

PN113

the action commences during the 30 day period on the date of the declaration of the results of the ballot.

PN114

Secondly, at subsection 3:

PN115

The Commission may by order extend the 30 day period mentioned in paragraph 1(d) -

PN116

so that is the action that proceeds from a protected action ballot:

PN117

That 30 day period may be extended by up to 30 days if the employer and the applicant for the ballot order jointly apply to the Commission for the period to be extended.

PN118

The premise upon which Ms Leeds proceeds in her submissions is a false one. There is no prohibition there on making another protected action ballot application which is what we get done. For example, if subsection 478(3) could not be met because there was no agreement, there could be no application made to the Commission and by Ms Leeds' reasoning, we could then not make a subsequent protected action ballot application in the same terms as the previous protected action ballot application.

PN119

We have done here everything that the Act requires in terms of technical and substantive requirements. Section 478(3) is to facilitate the extension of a protected action ballot authorisation, not to prohibit another protected action ballot authorisation proceeding from another protected action ballot being taken. Ms Leeds also does not refer to the correspondence between the union and the employer dated 3 January, or she did refer to the correspondence dated 3 January 2006.

PN120

However, she does not refer in that correspondence which is attached to the statement of Ms Donnellan where the union then sought for a meeting as soon as possible with the employer, providing the mobile phone numbers of both Ms Donnellan and Mr Warren. It was Ms Leeds' contention that since 19 December, the AMWU has not genuinely been trying to reach agreement, on two things, (1) between 19 December and 3 January is about two weeks during which both Christmas and New Year occur, in which case it is quite difficult to do more than take into account the fact that the union had just learned that the relevant persons authorised by their previous protected action ballot, one quarter of those persons were no longer - one quarter in a geographical sense were no longer the relevant persons that they could proceed with the industrial action that had been authorised upon and therefore reassess the industrial and legal situation in which they face themselves.

PN121

Thereby, as soon as was practically possible and the process to then be taken were authorised by meetings by telephone of delegates and of organisers to decide what tack there to be taken and that tack is reflected in the correspondence of 3 January, just two weeks later in which further meetings were sought. If I can just also refer to the decision of Senior Deputy President Acton at paragraph 31, it's quite pertinent to the submissions of Ms Leeds this morning.

PN122

In the previous submissions, much was made of who the relevant persons are for a protected action ballot application. The contention of the employer was that the persons named in the original bargaining period had to match exactly the persons then named in the protected action ballot application. That was rejected by His Honour. At paragraph 31 of her decision she says:

PN123

I reject the notion that relevant employees in section 451(1) means the type of employees set out in the particulars accompanying the relevant notice of initiation of bargaining period.

PN124

Then she goes on to say:

PN125

I think the relevant employees in section 451(1) insofar as an organisation is a negotiating party to a proposed collective agreement are those employees who are both members of the organisation and whose employment will be subject to the collective agreement that the union is proposing at the time it makes the application for the protected action ballot order. In practical terms, that will be the employees the union details in its application for the order as being the types of employees to be balloted.

PN126

And what do we have before us in this application? We have the relevant employees who are now being sought to be covered by the proposed union collective agreement are those employees in New South Wales, Victoria and South Australia. They cannot be by force of the Act those persons in Western Australia who were the relevant employees for the previous protected action ballot application.

PN127

In a practical sense, there was very little option for the union except to re-make a protected action ballot application. Of course, it would have been much more preferable to just proceed with the notice of intention to take industrial action which had been instituted, but we are following the strictures of the Act and that is what we are here hearing this morning and in that case, we do not see there is any ground for that submission of Ms Leeds to have any credence whatsoever.

PN128

Secondly, Ms Leeds went on to say that the terms of the orders sought and the terms of the application were deficient and that it's not clear that the proposed industrial action was not limited to exclude WA. Again, if we go back to relevant persons, the relevant persons sought to be covered by the proposed collective agreement which was reflected in the correspondence to the company on 3 January are those in South Australia, Victoria and New South Wales. The relevant persons cannot be those in WA.

PN129

If we sought to - we could not make an application to cover those employees by force of the Act, if it was thought that those employees would take action consequent on the protected action ballot order being made, those persons would be unprotected, thereby rendering the rest of the action unprotected as well. That's clearly not the intention of the application. It could not be, except on a particular - following a line of thought which I don't think can be sustained, Commissioner. If we look at who - - -

PN130

THE COMMISSIONER: Your argument is even if your application is not clear in specifying New South Wales, South Australia and Victoria, the mere fact that the Act says that they have reached an agreement in Western Australia automatically excludes them from any action?

PN131

MR MCCAULEY: It would, but we don't accept that the application is not clear. It repeatedly mentions South Australia, Victoria and New South Wales. We don't see the reasoning of saying any of all states means any state. I mean, by Ms Leeds' reasoning, that could be Queensland where they have no operations. It's defined by the context of the application. The application is clearly applying to the three states that remain, not WA. They're my submissions in response briefly to Ms Leeds' submissions. I can then go on to make further submissions if it pleases.

PN132

THE COMMISSIONER: Thank you.

PN133

MR MCCAULEY: Commissioner, as Ms Leeds has gone through, a notice of initiation of bargaining period has relevantly been made in these proceedings. That's attached to the application before us this morning. In accordance with section 452, the application is in the required form and includes all the required information concerning the questions to be put, the type of employees and the identity of the nominated ballot agent.

PN134

As is required by section 451(2((a), the existing collective agreements binding on the relevant employees have passed their nominal expiry date. That is another factor which leads us to infer with no confusion that we're talking about South Australia, New South Wales and Victoria. The relevant collective agreements have expired, their time expired. In accordance with sections 453(1)(a) and (b), a copy of the notice of bargaining period were attached.

PN135

Section 453(2), the application of the AMWU was duly authorised and then, further, as also required, the AMWUs application was accompanied by the relevant declaration concerning the union's claims with respect to prohibited content. That application was signed by the national secretary and annexed to the application. As we have handed up this morning, the application was served on the employer and the proposed ballot agent as required by section 454.

PN136

In satisfaction also of section 457 and 458 via the directions and order that were issued on 10 January, all relevant employees and other relevant persons have had a reasonable opportunity to make submissions in relation to this application, so the technical requirements of the application have been met. To move on to more substantive matters, we do submit that the union has met the conditions that are required for the making of an order under section 461.

PN137

There is no argument here that we need to satisfy those requirements for this application to be made. We are not merely rolling over the arm with respect to the previous application. What the Commission needs to be satisfied of is threefold. During the bargaining period, the applicant genuinely tried to reach agreement with the employer and the relevant employees. The applicant is genuinely trying to reach agreement with the employer and the applicant is not engaged in pattern bargaining.

PN138

On the uncontested evidence of Ms Donnellan, the union submits that the Commission can be satisfied that the AMWU has genuinely tried to reach agreement with the employer and is genuinely trying to reach agreement with the employer as required by sections 461(1)(a) and (b). What Senior Deputy President Acton found was that the union had genuinely tried to reach agreement up until the close of evidence in the previous application.

PN139

The evidence of Ms Donnellan given this morning and in her witness statement supports that this genuine bargaining has continued through from the making of that application, right through the proceedings of that application, whilst that decision was reserved, subsequent to the decision, continuing up until 3 January when a further meeting was sought about the proposed collective agreement. That meeting is to take place on Tuesday, I understand.

PN140

I would particularly draw the Commission's attention to the decision of French J in Wesfarmers. It may be helpful in this matter. I'll just turn that up. This decision was made by French J on 23 December 2004. Relevantly, it dealt with the AMWU Western Australian branch and also the AMWU as a federally registered organisation. What it dealt with was a series of negotiations that had taken place both under the auspices of the state system in WA and then the federal system. Relevant for our proceedings is paragraph 85 of French Js decision, if I can just read:

PN141

Although it was baldly submitted on behalf of Premier Coal that there had been no genuine attempt to reach agreement prior to the July strike action, it is clear that the discussions which had ensued in relation to the proposal for the certified agreement under the Workplace Relations Act subsumed ...(reads)... the longstanding negotiations insofar as they related to the substantive terms and conditions to be included in any agreement the AMWU had organised to strike.

PN142

The analogy that can be drawn here is that we have been negotiating with Mayfield in relation to their Metlabs division for more than probably 10 months now. What we have before us is an evolving proposed union collective agreement. Up until the previous protected action ballot application, we had a proposed union collective agreement. Now and subsequent to the commencement of those proceedings, there has been much exchange of correspondence, there have been many meetings about revision of clauses, about that evolving proposed union collective agreement.

PN143

Now, with the removal of the relevant WA members and employees from the scope of that proposed union collective agreement, the same agreement has now been reduced in the breadth of its application, but it is the same agreement we've been negotiating for 10 months. That is what we have before us and through the authority of Wesfarmers, we can see that the continuation of that negotiation continues up until this application before the Commission, we say up until negotiations which were referred to in correspondence last week and now we have a meeting next Tuesday.

PN144

It is an evolving single union collective agreement and subject to a range of negotiations of drafts and redrafts between the parties and due to that, we can be satisfied, we say the Commission can be satisfied of the requirements of section 461(1). Even in the decision in Metlabs itself, her Honour Senior Deputy President Acton at paragraphs 38 and 39 referred to the evolving nature of a union collective agreement. At 38 she says:

PN145

The suggestion that types of employees to be balloted must be the same as the types of employees set out in the particulars that accompanied the notice of initiation of bargaining period also flies in the face of the reality of industrial negotiation. Relevantly, negotiations over a union collective agreement may involve negotiations over all the matters set out in the particulars accompanying the notice of initiation of bargaining period, including the types of employees whose employment will be subject to the proposed collective agreement and the other persons who will be bound by the proposed agreement.

PN146

So what we have here is merely a further evolution of those relevant persons both for the ballot and the persons to be covered by the proposed collective agreement. They've been reduced by operation of law, in the Act, but it is the same agreement we are negotiating. Decisions of the Commission have clearly stated continually that the question of whether or not a person has genuinely tried to reach agreement is a matter of fact and degree. I won't go to all the authorities in detail. I don't think that's contended. Again, the decision of Senior Deputy President Acton goes to them in detail.

PN147

We say that up until the close of evidence in the previous application, we've got the concluded view of Senior Deputy President Acton, that the union was genuinely trying and had genuinely tried up until that decision to genuinely try to negotiate an agreement with the employer. We now have the evidence which is being tendered before you of Ms Donnellan, of shared correspondence, amendment of demands, meetings, attempted meetings, meetings arranged for next Tuesday, that evidence which supports the fact that the union is continually and constantly and still trying to genuinely negotiate an agreement with Metlabs.

PN148

There was perhaps an implied submission from Ms Leeds that some threshold must be met before a protected action ballot may be made by a union, that the Act provides that a certain number of meetings must be ticked off, a certain exchange of correspondence must take place before a protected action ballot can be taken. If there is a threshold which is relevant, we say that is passed. That can be inferred from the decision of Senior Deputy President Acton with respect to the previous application.

PN149

We say the exchange of correspondence has gone on, the meetings have gone on for so long that following the decision of I think it was Commissioner Gay in AMWU v Amcor in PR973236, he says at paragraph 48 of that decision:

PN150

It's important in my view for the Commission in considering a protected action ballot application to resist the position contended for by Amcor which would require industrial parties such as these who are beyond the threshold state of their negotiation and are genuinely trying to reach agreement, who have reached a particular stage ...(reads)... permitting a protected action ballot. To apply such strictures would be to apply a different, more onerous test than that of the Act.

PN151

If any required threshold is required, we say it is long passed in these proceedings. If we can further go to the other requirements of section 461, pattern bargaining, the Commission must be satisfied that pattern bargaining has not taken place. The evidence of Ms Donnellan was not contested of that. We have the decision of Senior Deputy President Acton to say that she was not convinced that pattern bargaining had taken place at the time of the previous decision and even if it were, the exception clause applied in that the union was still genuinely trying to reach agreement.

PN152

We say there is a concluded view. We say that the evidence of Ms Donnellan that there is no pattern bargaining is uncontested before you this morning. We say on that basis, the union can be satisfied that pattern bargaining has not taken place. We do note that the Senior Deputy President adopted the reasoning that common claims are identical claims. She does that at paragraphs 93 and 94. We won't go to them any further this morning, but we do refer to them, so we continue to submit that the evidence before you, the evidence that was before Senior Deputy President Acton discloses that the AMWU is not engaged in a course of conduct involving the seeking of common or identical wages or conditions of employment for two or more proposed collective agreements with respect to the AMWUs negotiations with Metlabs.

PN153

We say there is no contention about that. There is no evidence before you, that the converse is the case, but in the alternative we say it is still clear that the exception to pattern bargaining in sections 421(3) and (4) apply insofar as the AMWU is genuinely trying to reach agreement with the employer. We say with respect to the discretion of the Commission at section 461(2), the discretion is given there for the Commission to refuse the application where granting the application would be inconsistent with the object of the division or an order or direction has been breached.

PN154

We submit there is nothing either in our application or our conduct which would warrant the exercise of such discretion, especially in the situation where we have a concluded decision of the Commission with respect to bargaining within this bargaining period. We say instead that the granting of the application would be consistent with the objects of division 4 of part IX of the Act and the facilitative intent of the division.

PN155

There have been no further allegations of prohibited content or of the other - we do note that Ms Leeds repeats her submissions that were made before Senior Deputy President Acton. We do not the Commissioner's - your statement the other day that that would be improper or may not be suitable in proceedings such as what we have before us this morning. We say there are two grounds for repetition of those submissions to not be proper before the Commission this morning, there are two substantive reasons why - Ms Leeds' submission that she repeats those submissions made before Senior Deputy President Acton should not be entertained by the Commission.

PN156

Section 458 of the Act, Commissioner, provides that a party which includes an employer in such an application as this, a party may make submissions and may apply for directions relating to an application for a ballot order or any aspect of the conduct of a protected action ballot. That facilitation is limited we say by section 458(4) where it specifically states in relation to the type of application we have before us this morning:

PN157

The Commission may decline to consider a person's submission if the Commission is satisfied that the submission is vexatious, frivolous, misconceived or lacking in substance.

PN158

Secondly, section 110(1)(b) of the Act provides that the Commission is not bound to act in a formal manner and is not bound by any rules of evidence. It may inform itself on any matter in such manner as it considers just. That was former subsection 110(2)(b). I won't go to it in great detail. However, I do note authority of two Full Benches. I am sorry, I don't have them to hand up this morning, a decision of the Full Bench of Vice President Lawler, Senior Deputy President Kaufman and Commissioner Smith, 26 September 2006 in Australian Education Union v Australian Principals' Federation. That was PR973325.

PN159

In that decision, the Full Bench there continued to apply the decision of the previous Full Bench of Vice President Ross, Senior Deputy President Duncan and Commissioner Bacon in CFMEU v Pacific Coal which was PR935308. Specifically and relevantly, what was discussed there was the issue of issue estoppel, whether the equitable principle of issue estoppel applies to Commission proceedings. In general, again I don't want to go into too much detail this morning, in general the principle of issue estoppel was explained by Dixon J in Blair v Curran:

PN160

A judicial determination directly involving an issue of fact or law disposes once and for all of the issue so that it cannot afterwards be raised between the same parties.

PN161

What that means is and what the Full Benches have taken it to mean is that issues should not be re-agitated in the Commission where that would be contrary to the just determination of a case. What we have here is a determination by Senior Deputy President Acton.

PN162

THE COMMISSIONER: You can't have a second bite at the cherry.

PN163

MR MCCAULEY: Exactly, and what we have here is a determination of Senior Deputy President Acton on a range of matters which Ms Leeds now states, she repeats the submissions of previously, when we have clear determinations of hearing those submissions previously and making that determination. We do note, of course, that a previous determination is always subject to appeal to a Full Bench and such an appeal was never made in relation to the previous protected action ballot application.

PN164

What is included and what Senior Deputy President Acton determined, at paragraph 31 she resolves the question of relevant persons which was the subject of extensive submissions previously. We've already referred to that this morning. I won't repeat that before you now. Whether the union genuinely tried and was trying to reach agreement, she resolves a number of principles at paragraph 51. She resolved that the draft collective agreement which had been advanced up until 18 August, she wasn't persuaded that that was clear that it involved prohibited content.

PN165

She referred to the fact that the AMWU had repeatedly made it clear to Mayfield and the Commission that it is not pursuing claims containing prohibited content. That continues. We're dealing with the same proposed collective agreement. Subsequent to that proposed collective agreement, we have had an exchange of correspondence for the next few months again trying to reach agreement, maintaining and Ms Donnellan maintained it in her witness statement that the union is not seeking an agreement which contains prohibited content.

PN166

At paragraph 52 her Honour determined in relation to the extensive submissions of both the ABC Commissioner and the employer that if we didn't negotiate and let the union collective agreement comply with the code, the building code and guidelines, rather, then again we weren't genuinely trying to reach agreement. She concluded:

PN167

Even if the AMWU was pursuing a union collective agreement with Mayfield that was not compliant with the code and the guidelines, however, I do not think that would be reason to conclude the AMWU did not genuinely try to reach agreement with Mayfield during the bargaining period or is not genuinely trying to reach agreement with Mayfield.

PN168

It is not a provision of the Act that we must comply with the code, but regardless of that, the union maintains and maintained in Ms Donnellan's statement that we are not seeking an agreement that does not comply with the code. To that end, we have submitted a range of clauses to the Department of Employment and Workplace Relations for a determination, for an authoritative determination of those clauses. That correspondence is attached. We see by that correspondence that there is no question whether those provisions comply with the code or not because they do. The department did not determine that there was contravention or possible contravention of the code in those clauses.

PN169

We say that is determined by Senior Deputy President Acton. We say it should not be revisited in these proceedings. This again touches on the question of whether a threshold should be passed. We note that Senior Deputy President Acton repeated the oft quoted authority of G and K O'Connor, Australian Meat Industry Employees Union v G and K O'Connor (1999) 91 IR 356, the oft quoted principle there that:

PN170

Neither the making of extravagant demands, nor the adoption of a hard line in negotiations for a collective agreement are inconsistent with the concept of a genuine attempt to reach agreement.

PN171

If those submissions are repeated here this morning, we say that that has been heard and determined by her Honour and those findings should be adopted we respectfully submit by this Commission. If it is repeated this morning, the previous submission that the draft agreement was not capable of being approved by employees because it was unintelligible or confusing, we note at paragraph 56 of her decision that her Honour decided - made a clear determination that this was a false premise upon which to proceed. You do not need a concluded agreement to take a protected action ballot. It is not part of the Act. At paragraph 61, she said in any event the latest clauses that had been provided were capable of intelligible explanation by the AMWU.

PN172

We've heard nothing to say that that has changed. We've merely heard that that submission is repeated. We say that submission was rejected by her Honour and that determination should be maintained. We've mentioned that the Senior Deputy President found that there was no pattern bargaining. We've had nothing before us to maintain a further submission that there is pattern bargaining taking place. We also note that the Senior Deputy President did not choose to exercise her discretion not to grant the order. She found that that application was not inconsistent with the objects of this division.

PN173

So from that, what we say, Commissioner, is that to the extent that Mayfield seeks to repeat their submissions from the previous application, then the time has passed to make those arguments. The time was in the previous protected action ballot application. The time might have been in an appeal which was not instituted. We say the time is not during this application before us. What we say is that the principles and determinations upon which Senior Deputy President Acton made her decision should be followed.

PN174

If the union has continued to act in a manner consistent with its actions which granted the decision - that decision of Senior Deputy President Acton, then that decision should continue to apply, so has the union continued to consider the position of Metlabs? Yes, it has. We have evidence of that. Has it continued to seek meetings? Yes, it has. We are having another meeting on Tuesday. Has it continued to not pattern bargaining? Yes, it has. We had evidence of that this morning.

PN175

With respect to arguments about the suitability of the bargaining period to ground the present application, if those submissions are repeated, we say that would be inconsistent with the previous submission about the ability of us to proceed with industrial relations based on the previous protected action ballot application. If that submission is repeated or the submission that there is a necessity to have concluded clauses upon which an employee could approve an agreement before they can vote, not on the agreement, but on a protected action ballot, if those submissions are repeated, we say the argument has been made and decided and should not be re-agitated.

PN176

In summary and on the basis that the outline of submissions tendered before you, Commissioner, does not differ from the oral submissions made by Ms Leeds this morning, it doesn't appear that they do, we say you have an application before you that in accordance with the Act can be granted and should be granted, we say especially in relation to a situation where we have had 10 months of bargaining, where we have instituted a bargaining period on 1 May, where we have had a previous determination of many matters which were raised in relation to a protected action ballot within the current bargaining period, where that determination applies, we say that the decision - we submit that the Commission has more than enough grounds to grant the application before you this morning and those are our submissions.

PN177

THE COMMISSIONER: Thank you. Ms Leeds, do you wish to say anything?

PN178

MS LEEDS: Thank you, Commissioner, just a couple of points in reply. Mayfield continues to object to the granting of this order because in our view, the whole application before the Commission today is premised on redefining relevant employees, if you hear the lengthy submissions that have been made about separating the WA employees who have voted favourably for an employee collective agreement and it only applying in New South Wales, Western Australia and South Australia, the whole premise is redefining the relevant employees.

PN179

Now, what Mayfield submits is that that is unnecessary because, in fact, the order that was granted by her Honour, Senior Deputy President Acton, doesn't preclude action being taken in states other than Western Australia and, indeed, the notice to take industrial action nominated specific sites as well and we submit that there's no defect in that. The AMWU can exercise - the employees can exercise their rights under the Act to take protected action in particular sites.

PN180

Now, the application also in our submission really goes against the objects of division 4 of the Act because it seeks to confer the prerogative for industrial action to the AMWU, not to the employees. The employees have voted. They've made their position quite clear. They're ready to take industrial action. The AMWU for whatever reason appears not to have let them do that and that's at the very least a delay tactic or if we wanted to be a little bit more sceptical, we would say that perhaps the support isn't there amongst the membership of the AMWU to take the action under that ballot or perhaps that time is marching on and they've not sought to take anything, so we say that the application should not be granted because it does go against the objects of division 4 which are quite clearly favourable to the employees and the employees in this case haven't exercised any rights that are conferred by that section.

PN181

I note that Mr McCauley referenced comments made by the Commission on the 10th about matters that were before her Honour, Senior Deputy President Acton, and he said that the Commission directed that it was improper. Now, a reading of the transcript does not actually say that. I think what the Commission is more concerned about is wasting time, rather than the propriety of those submissions and for that reason we've chosen the course that we have today and not waste the Commission's time, so I wanted to correct that for the record, that in our view, the Commission did not direct us or direct that those submissions were in fact improper.

PN182

THE COMMISSIONER: No. That's correct.

PN183

MS LEEDS: Now, on the basis of this application, we do note that there haven't been any negotiations, there haven't been any genuine negotiations. Since the ballot order was declared on 19 December, there haven't been, other than the letter from Mr Cameron which withdrew the notice to take industrial action and an offer to meet, there haven't been any negotiations, nor any attempts by the AMWU to seek to meet with us.

PN184

THE COMMISSIONER: It doesn't mean to say that the parties aren't genuine. It just simply says there's such a thing as Christmas and New Year that does fall within that period.

PN185

MS LEEDS: Well, with respect, Commissioner, the whole application today is about urgency. That's why we want the ballot order and between the 19th and the 22nd which I think was the last working day, there was time to meet, but no such approach was made.

PN186

THE COMMISSIONER: I note the uniqueness of the argument in terms of the urgency, but I've got to say it's an argument that I don't accept from the union.

PN187

MS LEEDS: Thank you, and the final point I wish to make goes to the threshold matter that the AMWU raised and that was the type of ballot to be conducted and again we respectfully direct the Commission to the objects of division 4 which requires a secret - employees to exercise that right in an environment that's secret and the AMWU has not indicated what type of attendance ballot it proposes to take.

PN188

THE COMMISSIONER: I don't think you need to address that issue, Ms Leeds, because if the Commission and it won't do it today, it will reserve, but if it is inclined to issue the order, it will be an order in terms of a postal ballot, not an attendance ballot.

PN189

MS LEEDS: Thank you. That's the only other point I had to make, Commissioner, so I won't waste your time. They are all our submissions, if it pleases.

PN190

THE COMMISSIONER: Thank you. Nothing further?

PN191

MR MCCAULEY: Just briefly, Commissioner. We note again that Ms Leeds repeats that she says that it is unnecessary to make this application due to the provisions of the Act. However, that provision of the Act does not stop the union making this application, it simply does not do it. There is no defect she says in that application - sorry, that order or that ballot. She noted that it was resounding. We say there may be an open question we took to our delegates and the organisers.

PN192

We took to them the situation, we took to them the open question, had been canvasses extensively in the previous submissions about who relevant employees are. They made the decision, they resolved for this application to be made. There is no attempt for the union to hold something up their sleeve. What we're applying for here is another ballot to go to the members, for them to make a decision. It doesn't advantage the union to make another application for a protected action ballot, if we have one perfectly good up our sleeve. We say that submission would be contrary to most logic, most forms of logic.

PN193

THE COMMISSIONER: You may get a different result.

PN194

MR MCCAULEY: Well, we had - - -

PN195

THE COMMISSIONER: I mean, that's a chance that you take.

PN196

MR MCCAULEY: We do, but, I mean, it wouldn't be then to our advantage to take that chance.

PN197

THE COMMISSIONER: That's what I'm saying, you may get a different result.

PN198

MR MCCAULEY: Yes, exactly. We are going to the members again, that's what we're seeking to do. If there is any contention about support, then we will see that in the result of any ballot order that is made. I apologise if I misconstrued or misrepresented the statements of yourself, Commissioner, in the previous hearing about the appropriateness of repeating certain submissions. Irrespective of that, we do say that the principles enunciated in section 458 of the Act and of issue estoppel which are supported by section 110(1)(b) support a conclusion that certain matters in these proceedings have been determined and that determination should be followed.

PN199

THE COMMISSIONER: Far be it from a mere Commissioner to want to do something that may incur the wrath of a Senior Deputy President.

PN200

MR MCCAULEY: You'd be a braver person that I, Commissioner. Again, we just briefly repeat that there haven't been any genuine negotiations. We do note the principle extending from Wesfarmers. This is one big genuine negotiation. We had the news that WA had dropped out. We had to reconsider the entire industrial tactics we were taking. We met as soon as possible. We wrote to the employer. We sought a meeting. We said in that statement we continue to press a union collective agreement for these three states, we are genuinely negotiating. We did enjoy Christmas and New Year, that's the sum of it. It doesn't mean that the union is not genuinely trying to negotiate this agreement. We continue to, we do note and I don't wish to introduce new evidence, but I do note that Ms Donnellan wasn't cross-examined on her statement that the union was genuinely trying to negotiate the agreement, but I do understand that at the last meeting of 8 December between the parties that the employer stated to the union that we are not able to progress this any further.

PN201

They didn't want to meet and that they were going to the employees and that's what they did. That's when they sent an employee collective agreement, a non-union agreement to each of the four states. They're the circumstances in which we find ourselves. We say those circumstances should not prejudice the union's application before you this morning.

PN202

THE COMMISSIONER: Thank you. The Commission will reserve. The Commission will stand adjourned.

<ADJOURNED INDEFINITELY [11.01AM]

LIST OF WITNESSES, EXHIBITS AND MFIs

ANN DONNELLAN, AFFIRMED PN48
EXAMINATION-IN-CHIEF BY MR MCCAULEY PN48
EXHIBIT #AMWU1 WITNESS STATEMENT OF ANN DONNELLAN PN61
THE WITNESS WITHDREW PN78
EXHIBIT #METLABS1 OUTLINE OF SUBMISSIONS PN110