BP2006/3861, Transcript of Proceedings [2007] AIRCTrans 32 (30 January 2007)

TRANSCRIPT OF PROCEEDINGS

---

Workplace Relations Act 1996 16422-1

VICE PRESIDENT LAWLER

BP2006/3861

CPSU, THE COMMUNITY AND PUBLIC SECTOR UNION
AND
AUSTRALIAN NATIONAL MARITIME MUSEUM
s.451(1) - Application for order for protected action ballot to be held
(BP2006/3861)

SYDNEY

10.46AM, WEDNESDAY, 20 DECEMBER 2006

PN1

MR HEARD: I seek leave to appear for the respondent, your Honour.

PN2

MS M DONNELLY: No objection.

PN3

THE VICE PRESIDENT: Thank you. And sorry, your appearance is?

PN4

MS DONNELLY: I appear for the CPSU.

PN5

THE VICE PRESIDENT: Thank you, Ms Donnelly. Yes, leave is granted,
Mr Heard.

PN6

MR HEARD: I beg your pardon, your Honour?

PN7

THE VICE PRESIDENT: Yes, leave is granted.

PN8

MR HEARD: Thank you.

PN9

THE VICE PRESIDENT: Thank you. Yes, Ms Donnelly.

PN10

MS DONNELLY: Your Honour, we submit that the order should be made today. We have complied with the requirements of the Act. We submit that the CPSU is genuinely trying to negotiate and has been throughout the course of the bargaining period and continues to do so. Secondly we submit we were not engaged in pattern bargaining. We simply sought the number of meetings with the museum in the last few weeks. The museum has suspended negotiations with the union. We also sought conciliation in front of the Commission in respect of the bargaining. The museum has refused to be involved in that. So we would say that the CPSU is making every attempt to continue negotiating this agreement.

PN11

THE VICE PRESIDENT: You submit that the requirements of the Act have been met?

PN12

MS DONNELLY: Yes we do.

PN13

THE VICE PRESIDENT: Thank you. Mr Heard, do you oppose the order?

PN14

MR HEARD: Before I indicate the position on that, your Honour, may I put a number of things onto the record?

PN15

THE VICE PRESIDENT: Yes.

PN16

MR HEARD: Firstly the course the museum wishes to adopt should not be seen as a concession of three matters which I propose to put on the record. Firstly the museum does not with to concede the completeness or accuracy of the information in Mr Tull’s affidavit, secondly the museum does not wish to concede that the proposed agreement put forward by the union does not contain any prohibited content and thirdly the museum does not wish to concede that the proposed question to be put to employees is an adequate specification of the question for the ballot.

PN17

The museum wishes to expressly reserve its rights to go into evidence and legal argument at a later stage should that become necessary in relation to any or all of those matters, however the museum has taken a decision as a matter of industrial reality an order at least substantially in the form proposed could ultimately be made and that rather than go to the - - -

PN18

THE VICE PRESIDENT: Well, it can’t be made if the union is not genuinely trying to reach agreement because it’s seeking prohibited content that it knows to be prohibited or reason to be taken to know that it’s prohibited.

PN19

MR HEARD: Well, your Honour, I can expand on that submission shortly, but perhaps I should say first it’s a matter of industrial reality that the museum takes the view that whether by amendment or addition to the material the CPSU is likely to, or it’s at least arguable it would, succeed in obtaining an order substantially in line with the one currently proposed and also as a matter of industrial reality the museum with the interest it would seem what the result of such a ballot was. Now, your Honour will be aware that there have been a number of decisions in recent months concerning protected action ballots and the requirements of protected action ballots.

PN20

The two leading decisions of the Commission are the decisions in the Country Fire Authority v United Firefighters’ Union of Australia PR973841, a decision of the Full Bench in Melbourne on 8 September 2006 and the second one is the decision in Tyco Australia v CEPU which your Honour was a member of that Full Bench in Melbourne on 12 October 2006 PR974317. Your Honour, the proposition that was accepted by the Full Bench in the UFUA matter was that an agreement which plainly contained prohibited content could not be seen to form part of the genuine agreement making process.

PN21

THE VICE PRESIDENT: Unless it’s been expressly abandoned.

PN22

MR HEARD: I beg your pardon, your Honour?

PN23

THE VICE PRESIDENT: Unless the prohibited content has been expressly abandoned.

PN24

MR HEARD: Yes, your Honour. But I think what could be said about the facts in that case was there was not much doubt the proposed clauses were prohibited content, at least there was a strong argument that they were. However, the situation was notably different in the Tyco Australia case in which the negotiations between the parties had made it clear that the union would not press the claims for prohibited content should it be established that the items in dispute were in fact prohibited content. Now, what’s happened in this matter, your Honour, is that there’s been a legal debate going on between the parties as to whether or not the items in dispute are or are not prohibited content and the view that we have come to is that it is at least arguable and is perhaps likely that the Commission would accept the argument, but in circumstances where the union was engaged in legal debate with the employer’s lawyers as to whether or not clauses were prohibited content then that indicated an intention not to press for the inclusion of prohibited content but rather to continue negotiations and argument about it.

PN25

I think we can also say that the matters under discussion in this situation are not unarguably prohibited content. There is considerable room for argument as to whether or not they might be and what might be required by modification of those clauses in order to remove any offending element. So the museum took the view that in one way or the other the union was likely to be able to persuade the Commission that it was genuinely trying to seek argument, at least that it could not be said not to be genuinely trying to seek argument by virtue of the fact that it was seeking to include prohibited content in its agreement, that being the line of logic relating back to the requirements of section 461.

PN26

THE VICE PRESIDENT: Yes.

PN27

MR HEARD: Yes. Now, again on the item to do with specification of questions to be asked, that was a live issue in the Country Fire Authority v UFUA case, however the particular paragraph that was in issue in that case seems to have been one that was dealing with bans on compliance with directions. The Full Bench in that case found that the question to be put was not sufficiently specified. Now, your Honour, we think that the museum has an arguable case that the bare description given in the application may not be adequate, however we’ve also taken the view that it would probably not require a great deal more specification for it to be made adequate and that in any event should such action be intended to be taken notice of that action would have to be given in any event and if we were still of the view that that notice was inadequate then all steps available at that point.

PN28

So subject to those express reservations, your Honour, and also subject to one other matter I should mention, we don’t oppose the making of orders that a protected action ballot take place. Your Honour, I should say that the proposed order .....

PN29

THE VICE PRESIDENT: The bottom of the first page of the application?

PN30

MR HEARD: Yes, that’s the only one.

PN31

THE VICE PRESIDENT: Stoppages and strikes?

PN32

MR HEARD: Yes. There’s no document, your Honour, which actually sets out the actual orders that are proposed for the conduct of the ballot.

PN33

THE VICE PRESIDENT: That’s fine, I’ve got it. Just a bit of standard way that can be adapted.

PN34

MR HEARD: Yes, your Honour. I did appear in another matter about that, yes. So that was the only other thing that I wanted to say about that.

PN35

THE VICE PRESIDENT: Okay. There’s just the one site, is that right?

PN36

MS DONNELLY: That’s right, your Honour.

PN37

THE VICE PRESIDENT: And you’re happy with the time table proposed by the AEC?

PN38

MS DONNELLY: Your Honour, actually we would like to amend it if possible. Given the actual time table we’d suggest perhaps, your Honour, that the ballot would open on 5 January and we’ve spoken to a number of our members to ascertain when they’d be away. If possible if we could have the ballot open on the 5th and it actually be open so where eligible voters consider the material for two extra days in case people are still on holidays at that period.

PN39

THE VICE PRESIDENT: So the ballot closes on the 25th? That’s a public holiday, isn’t it?

PN40

MS DONNELLY: No. Sorry, your Honour, it would close on the 17th. So we’re opening on 5 January instead of the 15th.

PN41

THE VICE PRESIDENT: Yes and close on the 17th.

PN42

MS DONNELLY: That's correct, thank you.

PN43

MR HEARD: Could I have a moment, your Honour? Your Honour, we’re rather puzzled by that because in the application it’s noted that a high proportion of staff are on leave up to 15 January.

PN44

THE VICE PRESIDENT: Well, the explanatory memorandum explains that these provisions are facilitative, not prohibited, but it’s the secret ballot provisions and it’s really for the benefit of the union - if I could use that word benefit as it were in inverted commas - but the ultimate object of the provisions is to ensure that if protected action occurs it occurs with the majority support of relevant employees and it’s on the union’s own head if they don’t specify an adequate period. But my view is they’d have to be truly compelling circumstances to adopt a time table other than the one that the union wants given that at the end of the day it’s for the benefit of the union and its employees that the orders are made.

PN45

MR HEARD: Yes I appreciate that, your Honour, but there does seem to be some risk in that that some employees may simply not find out about it until it’s too late to respond. If they’re not returning until the 15th it certainly doesn’t give them very much time should they be actually away.

PN46

THE VICE PRESIDENT: Ms Donnelly, I take it the union has surveyed the - - -

PN47

MS DONNELLY: We have at the time of making the application.

PN48

THE VICE PRESIDENT: You’ve got a delegate there who’s - - -

PN49

MS DONNELLY: We hadn’t got the full range of information about, you know, the sort of numbers that would be back. We have surveyed the members now and we think that this will be able to facilitate most people getting the opportunity to vote.

PN50

THE VICE PRESIDENT: Yes. It’s a peculiar feature of the legislation that doesn’t explicitly deal with the question of disenfranchisement because of leave, sick leave, long service leave, annual leave.

PN51

MR HEARD: Your Honour, I can’t say anything more about it than that. I’ve raised the issue so if it becomes a problem later on we raised it.

PN52

THE VICE PRESIDENT: You’re doing a lot of raising today, Mr Heard.

PN53

MR HEARD: Yes, your Honour.

PN54

THE VICE PRESIDENT: Not much submitting. Fine. Ms Donnelly, are you content with the question that has been specified?

PN55

MS DONNELLY: As proposed in our application?

PN56

THE VICE PRESIDENT: Yes.

PN57

MS DONNELLY: Yes, we are.

PN58

THE VICE PRESIDENT: All right. Well, I’m satisfied the requirements of the Act have been met and that an order should issue. An order will issue later today that gives effect to the particular terms of the application and the time table as amended in the way that’s just been discussed. Anything further, Mr Heard?

PN59

MR HEARD: No, your Honour.

PN60

THE VICE PRESIDENT: Ms Donnelly?

PN61

MS DONNELLY: No, your Honour.

PN62

THE VICE PRESIDENT: Fine. The Commission’s adjourned and the order will be sent to you formally later today.

<ADJOURNED INDEFINITELY [11.02AM]