BP2007/3008, Transcript of Proceedings [2007] AIRCTrans 349 (18 July 2007)

TRANSCRIPT OF PROCEEDINGS

---

Workplace Relations Act 1996 17109-1

SENIOR DEPUTY PRESIDENT MARSH

BP2007/3008

s.451(1) - Application for order for protected action ballot to be held
Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union
and
Hitachi Construction Machinery (Australia) Pty Limited
(BP2007/3008)

SYDNEY

2.03PM, WEDNESDAY, 04 JULY 2007

Continued from 29/6/2007

PN1

MR A NEILSON: I appear on behalf of the notifying union and I appear with MR D WALLACE.

PN2

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. Perhaps I should note for the record that a mention of this matter last Friday, I think it’s 29 June, the respondent’s representative indicated that they did not wish to appear in this matter today, but they would file and serve a written submission by close of business Monday. That happened and nor do they wish to reply to anything the union might put today. So the purpose of today’s meeting is to hear oral submissions from the union and clearly I will take into account in reaching my decision the written submission that have been filed on behalf of the company. And I presume you received those written submissions?

PN3

MR NEILSON: I did, your Honour.

PN4

THE SENIOR DEPUTY PRESIDENT: So you in fact will be responding to them today?

PN5

MR NEILSON: I will, yes. Your Honour, this is an application by the union for a protected action ballot for its employees or its members engaged at Hitachi Construction Machinery in Newcastle. The union has prepared a witness statement of Mr Wallace who is the union organiser. Given that there’s nobody here for the other side I only seek to call Mr Wallace just to confirm the contents of that statement being true and correct and to tender it for the purposes of demonstrating to the Commission that the statutory prerequisites have been met by the union.

PN6

Our of courtesy to the respondent I did forward a copy of this to them this morning so they are on notice that we intend to rely upon it today and we’ve had no communication from them this morning as to whether or not they wish to cross-examine. So in light of their earlier submissions we take it that they’ve declined to - - -

PN7

THE SENIOR DEPUTY PRESIDENT: Well, their earlier submissions did refer to evidence, submissions and evidence.

PN8

MR NEILSON: That's correct.

PN9

THE SENIOR DEPUTY PRESIDENT: So I think that’s a fair assumption.

PN10

MR NEILSON: So on that basis, your Honour, if I could just shortly call
Mr Wallace to the witness box.

PN11

THE SENIOR DEPUTY PRESIDENT: Yes.

<DANIEL WALLACE, SWORN [2.05PM]
<EXAMINATION-IN-CHIEF BY MR NEILSON

PN12

MR NEILSON: Thanks, Mr Wallace. Can you confirm your name, address and occupation for the record please?---It’s Daniel Wallace, (address supplied). I’m the state organiser for the AMWU out at the Newcastle office.

PN13

And have you prepared a witness statement for the purposes of these proceedings?---Yes, that's correct.

PN14

Do you have a copy of that witness statement with you?---I have a copy in my file there, yes.

PN15

If I could just provide you with a copy. Do you have a copy of that witness statement now?---Yes.

PN16

Can I get you to turn to the last page of that witness statement?---Yes.

PN17

Do you see a signature on that page?---Yes.

PN18

Is that your signature?---Yes, that's correct.

PN19

Do you confirm that this statement is true and correct to the best of your knowledge?---Yes, I do.

PN20

I seek leave to tender a copy of that statement, your Honour.

EXHIBIT #AMWU1 WITNESS STATEMENT OF DANIEL WALLACE

PN21

MR NEILSON: I have no further questions for this witness, your Honour.

PN22

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. Mr Wallace, you’re excused from the witness box, thank you.

<THE WITNESS WITHDREW [2.07PM]

PN23

MR NEILSON: Your Honour, that concludes the evidence of the union in support of its application and we now turn to the submissions as to why the order should be granted by the Commission and in so doing to assist the Commission I have prepared a brief outline of submissions which deals with the requirements in section 461 as well as some of the issues raised in the response of Mr Vernier. And I'll provide a copy of that to the Commission now.

PN24

THE SENIOR DEPUTY PRESIDENT: While we just read the submissions of Mr Vernier, and I’m not sure whether you’re going to go to this point, but having read the attachments to Mr Vernier’s submissions including Commissioner Cargill’s decision, why isn’t it the position that when she made that decision when the first bargaining period became invalid it was no longer in place, it had no legal force?

PN25

MR NEILSON: Well, we were going to come to that, your Honour. The reason - and it’s interesting that you point that out because in the proceedings before Commissioner Cargill in several occasions on the record of the transcript
Mr Vernier in his submissions says - - -

PN26

THE SENIOR DEPUTY PRESIDENT: Yes, I was going to rely on that.

PN27

MR NEILSON: That the bargaining period is invalid.

PN28

THE SENIOR DEPUTY PRESIDENT: Yes.

PN29

MR NEILSON: The Commissioner comes to a - - -

PN30

THE SENIOR DEPUTY PRESIDENT: And my question, I mean - - -

PN31

MR NEILSON: - - - conclusion that it is invalid.

PN32

THE SENIOR DEPUTY PRESIDENT: It’s just that there’s a matter that’s been before the Commission and decided by the Commission. She has said it’s invalid. That decision stands. Why doesn’t that finish the first bargaining period?

PN33

MR NEILSON: Well, it certainly does in our view, your Honour.

PN34

THE SENIOR DEPUTY PRESIDENT: Because she implicitly took into account the submissions of the respondent which was there is no bargaining period in place, it is invalid.

PN35

MR NEILSON: That's correct, your Honour. And that was certainly the submission advanced by the respondent. The way we would characterise their submission on this occasion is it’s one of convenience. That is that they’ve now realised that they have a valid bargaining period on foot, there has been valid negotiations in relation to that bargaining period and they need to create an argument to demonstrate to the Commission why it shouldn’t grant the ballot order. But there was certainly no appeal from the decision of Commissioner Cargill and that decision stands.

PN36

THE SENIOR DEPUTY PRESIDENT: Yes.

PN37

MR NEILSON: The Commission ruled that the bargaining period was not valid for the purposes of the Act - - -

PN38

THE SENIOR DEPUTY PRESIDENT: Yes. I don’t think it’s open for me to go behind that decision of the Commissioner’s.

PN39

MR NEILSON: No.

PN40

THE SENIOR DEPUTY PRESIDENT: There was no application to terminate, but there was nothing to terminate because there wasn’t anything validly before her.

PN41

MR NEILSON: According to the Commissioner’s decision, that's correct your Honour.

PN42

THE SENIOR DEPUTY PRESIDENT: Yes.

PN43

MR NEILSON: And certainly for the purposes of this particular bargaining period the union is not seeking to challenge that decision at this time, nor has it challenged the decision of the Commissioner at first instance.

PN44

THE SENIOR DEPUTY PRESIDENT: Yes.

PN45

MR NEILSON: So we deal with the submissions advanced by the respondent on the last occasion and the Commission’s decision and in light of that decision the union initiated a new bargaining period specifically limited to the particular branch and on that basis it sought to commence and continue negotiations with the respondent for a replacement agreement. The argument advanced by the respondent is an inherent and technical one, certainly not one that would be, we say, an advancement of the objects of the Act when one takes into account the requirements of the Act to facilitate the making of ballots and agreements for that matter. And that’s certainly what the union has done.

PN46

And can I just say even if the Commission was to find that the bargaining period that was in place on the last occasion remained in force contrary to the decision of Commissioner Cargill and that the union had initiated a second bargaining period, on any analysis of the two bargaining periods. And in fact it’s conceded in the respondent’s submissions, albeit not formally, that the two bargaining periods are different. One bargaining period deals with what may be referred to as the single business of Hitachi, being the branch 19 and the branch 15 businesses, the second bargaining period, being the one that we’re relying upon today, deals solely with the issue of part or branch 19.

PN47

So the submission that was advanced by Mr Vernier in the mention was that the bargaining periods were dealing with exactly the same issue and that on the reading of the bargaining periods is certainly not the case. One deals with branch 15 and 19, may be referred to as a single business of Hitachi as is permitted under the Act, the other deals with branch 19, part of a single business. And if you read the submissions of Mr Vernier he concedes that Hitachi concede that branch 15 and branch 19 are distinct operational units within their respective operations. So therefore we would say that that would meet the requirements as to the definition of part of a single business.

PN48

So your Honour, in light of your observations I don’t propose to go through these submissions in any great detail, suffice to say that in our view on the basis of the evidence of Mr Wallace there clearly has been negotiation for a proposed agreement during a bargaining period. There’s no criticism - well, there is an attempt at some criticism made by Mr Vernier as to whether the bargaining period that we rely upon now is in fact in existence, but there’s no authority cited as to why it would not be in existence and certainly there’s been no determination by the Commission that the bargaining period is no longer in existence.

PN49

So we come to the Commission in good faith on the basis that we have filed and served a document which we say complies with the statutory prerequisites for the making of a bargaining period, that bargaining period has been assigned a file number by the Commission and treated as a bargaining period and certainly in light of any conclusion by the Commission that there is no bargaining period, which we say is certainly not available for the reasons we detail in our submissions, that on that basis the Commission is obligated in light of the failure of the respondent itself to bring any evidence to suggest otherwise to take into account Mr Wallace’s statement that there has been good faith bargaining, there has been a genuine attempt to reach agreement between the parties and that
Mr Wallace remains on behalf of the union ready and willing to continue negotiations with the respondent.

PN50

There has been no suggestion of pattern bargaining as is a requirement in section 461(3) and on that basis we would simply say that the Commission is obligated to order that the ballot take place and that the employees are entitled to exercise their democratic right as to whether they wish to engage in industrial action. Unless the Commission had any specific questions in relation - - -

PN51

THE SENIOR DEPUTY PRESIDENT: The other point of the respondents about the authority of Mr Bastian to - - -

PN52

MR NEILSON: The authority of Mr Bastian we say can not be questioned and certainly Mr Bastian in signing the document has asserted that it has the particular authority as is required by, I think it’s section 453(2) and a reference to section 453 only requires that the application be accompanied by a notice showing that the application has been duly authorised. That has been complied with. There’s no suggestion that we haven’t provided the notice demonstrating that the application has been duly authorised. Mr Bastian asserts that he’s authorised to make the declaration.

PN53

There is no evidence by the respondent to suggest that he’s not authorised to make the declaration, it’s just simply an assertion on their behalf.

PN54

THE SENIOR DEPUTY PRESIDENT: Yes.

PN55

MR NEILSON: And on that basis we would say that the Commission is entitled to rely upon Mr Bastian’s declaration in accordance with section 453. Unless the Commission had any further questions on those points?

PN56

THE SENIOR DEPUTY PRESIDENT: No.

PN57

MR NEILSON: Those are our submissions.

PN58

THE SENIOR DEPUTY PRESIDENT: Thank you. Very well. On the basis of the written submissions of the respondent and the material tendered today, that is the witness statement of Mr Wallace and the written and oral submissions tendered by the union, I am prepared to grant the application pursuant to 451 with respect to ordering protected action ballot. I will issue shore reasons for decision in due course. On 29 June I indicated to Mr Meares that I would give him an opportunity to address the terms of the order, the final order. We have also received correspondence from the AEC. Have you received that, Mr Neilson? I think my associate sent that to you.

PN59

MR NEILSON: I think yes we have.

PN60

THE SENIOR DEPUTY PRESIDENT: Yes. And I think we sent it to
Mr Vernier. So Mr Meares may not be in receipt of that, but we can rectify that. From memory Mr Meares said he was going to be in Perth this week.

PN61

MR NEILSON: He did, yes.

PN62

THE SENIOR DEPUTY PRESIDENT: I think the appropriate course is to adjourn these proceedings and for my associate to find a mutually convenient time for the parties to have a phone link up. It may be that you could talk to Mr Meares before that link up to see if you could get a consent position, but in the first instance at least I’d like to get a phone link up this week. Maybe not this afternoon, but maybe tomorrow some time. Would that be convenient?

PN63

MR NEILSON: That would be fine. I had a commitment in the afternoon, your Honour, but if it could be - - -

PN64

THE SENIOR DEPUTY PRESIDENT: Well, if Mr Meares is still in Perth there may be some difficulty. I’ve got matters listed morning.

PN65

MR NEILSON: I could do a phone link up between two and three, but I couldn’t do it any time after three, Commissioner.

PN66

THE SENIOR DEPUTY PRESIDENT: All right. Well, that might suit
Mr Meares. So my associate will liaise with you as to the convenient time.

PN67

MR NEILSON: Okay.

PN68

THE SENIOR DEPUTY PRESIDENT: And I’d ask the parties to take into account the Electoral Commission’s time table as well.

PN69

MR NEILSON: Thank you, your Honour.

PN70

THE SENIOR DEPUTY PRESIDENT: All right. The matter is adjourned. Thank you.

<ADJOURNED ACCORDINGLY [2.17PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

DANIEL WALLACE, SWORN PN11
EXAMINATION-IN-CHIEF BY MR NEILSON PN11
EXHIBIT #AMWU1 WITNESS STATEMENT OF DANIEL WALLACE PN20
THE WITNESS WITHDREW PN22