BP2007/3041, Transcript of Proceedings [2007] AIRCTrans 356 (24 July 2007)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 17115-1

COMMISSIONER BLAIR

BP2007/3041

s.451(1) - Application for order for protected action ballot to be held
Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union
and
Sandvik Australia Pty Ltd
(BP2007/3041)

MELBOURNE

10.02AM, TUESDAY, 10 JULY 2007

PN1

MR B TERZIC: If the Commission pleases, I appear on behalf of the applicant union.

PN2

THE COMMISSIONER: Thanks, Mr Terzic. Now, I understand that my associate has provided you with a copy of the correspondence that we received late yesterday. Now, that says that Sandvik are in receipt of your application. They say that regrettably they’re unable to attend due to the early notice but they make a number of - the following points.

PN3

They say that Sandvik Australia Pty Ltd as set out in the application is not the employer of labour at the site. They say the employees at the site are employed by the legal entity of Sandvik Mining and Construction Perth Pty Ltd. Then there are a number of other points. But they say that they’re available in Melbourne on 24 July 2007.

PN4

What do you say about the right entity being served with the notice, if they say that Sandvik Mining and Construction Perth Pty Ltd is the legal entity in which these people are employed - by these people that are employed?

PN5

MR TERZIC: Commissioner, that might well be correct. I personally have not investigated this and upon reading the letter referred to only a few moments ago, it was the first occasion upon which I have become aware of this contention. However, having said that, this situation is not entirely new in applications such as this and the normal course that the union would follow in such a situation would be to seek to enliven the powers available to the Commission under section 111(1), which allows for the amendment of any document.

PN6

But having said that, because this matter is merely a mention, I haven’t asked the relevant organiser who has been conducting the negotiation with Sandvik to attend and I must therefore concede that I’m not fully appraised of the situation on the ground. But nonetheless, what I submit to the Commission is this: ballot applications are merely a step taken along the way towards ultimately securing an agreement and sometimes ballot applications can be the catalyst for the parties to focus their minds, narrow their differences and reach an agreement. And I think the Commission as constituted has been present when such has happened before and that might be the most expedient course to let Sandvik know that the option of taking industrial action might well be open, there might be some defects in this application, maybe they’re curable, maybe they’re not. But the real business behind all of this is securing an agreement.

PN7

So what I suggest is that I contact the relevant organiser, inform him of the contents of this letter. The union will reassess where it’s all at and once that assessment has been done, we could also see if Sandvik’s position might be amenable to change. Once all that is taken into account we would then contact the Commission and let the Commission know how we propose to deal with the application. There might also be some merit in the parties convening - apparently under this application the Commission might be able to assist in conciliation. I tend to think that’s the easier way to get the Commission to assist under the Act. The alternative is a lot more cumbersome. It has been effective in the past and it might be effective here. If the Commission pleases.

PN8

THE COMMISSIONER: Okay. I think that particular course that you propose is relevant and acceptable. If you notify the Commission once you have done - or clarified the union’s position and where they wish to proceed and if you think that the Commission would be of some assistance in conciliation, that’s fine. It might be that it may have to exercise its powers under 111(1) in terms of technically amending the application to make sure that we get the right people.

PN9

MR TERZIC: Yes.

PN10

THE COMMISSIONER: But the Commission will await your advice on that. You might decide to serve a fresh application. It’s entirely up to you. So that’s fine. We’ll adjourn this matter to a time and date to be fixed and we’ll await contact from the union, the applicant.

PN11

MR TERZIC: Thank you, Commissioner.

<ADJOURNED ACCORDINGLY [10.08AM]