BP2007/3083, Transcript of Proceedings [2007] AIRCTrans 403 (15 August 2007)

TRANSCRIPT OF PROCEEDINGS

---

Workplace Relations Act 1996 17219-1

COMMISSIONER BLAIR

BP2007/3083

s.451(1) - Application for order for protected action ballot to be held
Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union
and
McGuigan Simeon Wines Limited
(BP2007/3083)

MELBOURNE

10.12AM, FRIDAY, 03 AUGUST 2007

Continued from 27/7/2007

PN32

MR J WIELADEK: I appear on behalf of the union with MR D KING.

PN33

MR R MILLAR: I seek leave to appear on behalf of the respondent employer.

PN34

THE COMMISSIONER: Mr Donaghey was representing.

PN35

MR MILLAR: He was.

PN36

THE COMMISSIONER: Is there an amalgamation with the counsel or something, Mr Millar?

PN37

MR MILLAR: No, I think he has commitments in Sydney, Commissioner, and his gain is the Commission's loss, I'm afraid. You have me instead.

PN38

THE COMMISSIONER: Mr Wieladek, do you object to Mr Millar seeking leave?

PN39

MR WIELADEK: No, Commissioner.

PN40

THE COMMISSIONER: Leave is granted, Mr Millar. This matter was listed, of course, on 27 July for programming and mentioning. As I understand it there was just one or two technical matters in regard to the documentation. I understand that that may have been remedied. Directions were issued by the Commission on
27 July, a timetable has been presented to the Commission from the Australian Electoral Office, which is the nominated organisation to conduct the ballot. Mr Wieladek.

PN41

MR WIELADEK: Commissioner, we have served and filed on the respondent's solicitors and on the Commission an amended form of documents. I think there was some discussion about attachment B and I think it contained ABI Limited where it should have contained the respondent's name. We've sent that through. I can now talk substantively about the application, if the Commission pleases.

PN42

THE COMMISSIONER: Is the application being contested, Mr Millar?

PN43

MR MILLAR: It is, Commissioner.

PN44

MR WIELADEK: I've had a chance to speak to counsel for the respondent and I think we've formed the view that the way we could go through this is that I can put Mr King into the witness box to take some evidence about matters that will pertain to tests under section 461 of the Act. Then after that counsel can
cross-examine Mr King and we would make submissions on the application.

PN45

THE COMMISSIONER: Right, okay.

PN46

MR WIELADEK: On that, I call Damian King as a witness for the applicant.

<DAMIAN PATRICK KING, AFFIRMED [10.16AM]
<EXAMINATION-IN-CHIEF BY MR WIELADEK

PN47

MR WIELADEK: Mr King could you just state your name and occupation for the transcript?---Damian King, state organiser AMWU sort of covering northern and central Victoria for the metals division.

PN48

In this application could you just outline details of your negotiations with the company in respect of the current bargaining period?---Okay. Well just - in late 2006 I attended the site at Merbein. I had two meetings with the company representatives, the local manager, representative on the site in late 2006, I don't know the precise dates, I'm sorry, where we discussed the desire of the members, the employees in the maintenance department, to reach a union collective agreement. Those discussions were inconclusive. At the end of the second meeting I proposed to give the company a draft of a collective agreement to give them an idea where we're coming from and to provide a basis for negotiations and I did that just before Christmas. It was probably the very last working day. Then it was March, it would have been late March, I can't recall the precise date, I then had a meeting with the site management people again, I think it was Julie Thomas that was involved, the operations manager for the company, Fran Lawn the human resource manager, and we discussed the draft agreement and where the company was coming from. The company said that they weren't interested in reaching a collective agreement with the union, they weren't interested in any form of agreement applying to the maintenance employees on the site and that they wanted the employees to be covered by Australian workplace agreements and really basically, as far as they were concerned, there was no point in any further discussions. So that was the end of that meeting. I then had a discussion with the members, the employees in the maintenance department. They indicated that they wished the union to proceed with seeking an agreement so a couple of days after that we formally served the bargaining notice on the company.

PN49

THE COMMISSIONER: Do you know the date on which that was done?---It was around - it was 28 March, I believe, Commissioner. I might be a day or two either side. I'm sure Mr Wieladek has probably got the documentation but it was give or take a day either side of that. The bargaining notice was served and that bargaining was - within the framework, if you like, is the right way to put it, of the proposals we put to the company for a collective agreement. I contacted the company soon after that and said, "Look, now we've served the bargaining notice we would seek to have some further discussions." Then it was around 17 April, thereabouts, mid April I had a further meeting with Julie Thomas, the operations manager and Fran Lawn the site HR person and really pressed the matter that the guys were keen, that they rejected the idea of the AWAs and they want a union collective agreement. Based on the fact it was a unanimous view of the maintenance department, then surely we should be able to sit down and start to get some talks going and the company representatives again indicated they were not interested in any discussions and that they were about the AWAs. I obviously made the point that we thought the document we'd served before the start of the bargaining notice was the basis of the sort of agreement that we wanted to negotiate on and obviously we were open to negotiate on the terms of that document. So that was again their response, no go. I discussed it with the members after that. They sort of indicated they wanted the union to press on. I then, on 8 May, wrote a letter to Dane Hudson, who's the chief executive officer of McGuigan Simeon asking the company to reconsider its position in relation to a union collective agreement, pointing out that it was the unanimous view of the maintenance employees that they wanted a union agreement and surely the company should respect the views of the people and we should sit down and negotiate. I sent that off on 8 May. Then I attended the site again in July, probably about a month ago, yes, I think it was about 9 July and I had discussions with Fran Lawn the human resource person and asked Fran how it was going, were the company prepared to reconsider and again Fran confirmed that the company view was still the same, they weren't interested in a collective agreement, they wanted to get the guys under AWAs and that was the extent of the discussion. The company weren't interested in any talks about our claims and the bargaining notice or anything like that. I did mention to Fran that I hadn't received a response to my letter to the chief executive officer. She sort of - she seemed to be aware that the letter had been sent but she sort of said well, that's out of her court. So since that letter has been sent I've received no acknowledgement of receipt of the letter. I've obviously received no response to the letter at all and no response at all to our request for them to reconsider or to attend some discussions and negotiations to reach a union collective agreement.

**** DAMIAN PATRICK KING XN MR WIELADEK
PN50

MR WIELADEK: Thank you, Commissioner, no further questions.

PN51

THE COMMISSIONER: Mr Millar.

<CROSS-EXAMINATION BY MR MILLAR [10.21AM]

PN52

MR MILLAR: You say that the draft EBA was sent to the company in December last year?---Yes.

PN53

The detailed discussions you had with the company about the company's attitude towards an enterprise agreement with the union was all around that time?---No, that wasn't all the discussions. I had two meetings, I can't recall the precise dates but I had two meetings I believe were in the November-December period and there was a bit of detail to those discussions, and I sort of - the company didn't say no to negotiations at that stage and I thought it was appropriate to - well, we'd send them a document, you know, to take account of what the blokes are interested in and try and give a basis that we can initiate some discussions. So the discussions occurred then and then there were two further meetings that occurred after the - there was then the meeting in March, around the 26th, which was the third meeting which was a couple of days before the bargaining notice was served and the company put the position they weren't interested in any agreement at all and they wanted to do AWAs and then after that there were two discussions I had with the company, one around the middle of April where I sort of pressed the point again with Julie Thomas and Fran Lawn and then there was a further discussions with Fran about a month ago where she confirmed the same position. So there's basically been five discussions and there were two of them that occurred after the bargaining notice was served.

PN54

With the three that occurred before the bargaining notice was served, what duration were those meetings, how long were you talking to the company for?
---Look, there would have been a bit of time in the - I sort of can't recall precisely but I would have thought probably half an hour, three-quarters of an hour in both of those, I would have thought.

PN55

Then the two meetings after the notice was served?---There was - the discussion after the notice was served would have went a maximum of half an hour, didn't go any great period of time. The discussion I had with Fran on 9 July would have been - was a 10 minute discussion. It was not a lengthy discussion but she just confirmed, "Look, Damian, we're not interested in talking to you." That was their response, very politely but it was her response.

**** DAMIAN PATRICK KING XXN MR MILLAR
PN56

You say that you sent a letter on 8 May to the CEO?---Yes.

PN57

Did you follow that up with the CEO?---I didn't follow it up, I felt I'd sent him a letter and I asked for a response and I received no response. I know it's not Fran's job, she the site human resource person. She seemed to be aware that the letter had been sent and the company had a letter but - - -

PN58

When you say she seemed to me aware, do you remember what she said?---Look, her response was to the effect of, "Yes, well, that's the company position, Damian, you know, they're not interested in the agreement, so don't be surprised if you haven't got a response." There seemed to be to me an awareness that the company had had the letter and her view was, "Well, there's no point in talking further, you've expressed your view, but there's nothing I can do. It's the company position not to negotiate with their blokes."

PN59

I think Damian has the one copy of the letter, I understand, so I'll just - - -

PN60

THE COMMISSIONER: Right.

PN61

MR MILLAR: It's true, is it not, Mr King, that your letter didn't set down any proposed timetable for a response from the company?---Look I've got it here, can I have a look at it just to refresh my memory. Is that okay?

PN62

I thought you only had the one copy of the letter?---I've got two copies.

PN63

You have one?---One spare copy. No, look, all I did was, I said that - I think the crucial bit is in the final paragraph:

PN64

Based on this the unanimous decision by all employees concerned -

PN65

that's the maintenance guys:

PN66

- the union requests that your company reconsider its position on this matter and that the company agree to enter into negotiations to establish a union collective agreement covering the maintenance employees at the Merbein site. Surely the company accepts the rights of the employees concerned to determine what form of employment instrument covers their employment.

PN67

That was us putting the request for the company to reconsider. Obviously I would say that that is definitely inviting a response in terms of our request and we received no response.

**** DAMIAN PATRICK KING XXN MR MILLAR
PN68

You didn't follow up on it and you raised it, you say, in later discussions with the site HR manager?---Yes, look, I mentioned it to Fran. It seemed to me that Fran was aware that the letter had been sent. Look, Fran - it's not my job to assess the company but she's the site human resource person, she's not a particularly senior person. I wouldn't expect her to second guess and speak on behalf of the chief executive but definitely she seemed to me to be aware that the letter had been sent and received.

PN69

After the notice of initiation of bargaining period, did you serve a copy of the agreement that you were proposing to enter into?---I made reference to the document that we'd already served, that that was the basis of the agreement that we were seeking to negotiate. I referred back to our previous discussions and said that what we'd put forward before was what we continued to seek and we sought to negotiate an agreement based on what we'd already submitted.

PN70

You didn't actually serve any copy of an agreement during the bargaining period to say, "This is what we're actually seeking to do. This is the agreement we want"?---The document wasn't served then. The document is some, I think, 50 or 60 pages long. I haven't got it in front of me but it's a very comprehensive document and I said, "Look, that's the document we're seeking to negotiate on and that reflects the concerns of the blokes, and we seek to negotiate on what we've already given you."

PN71

Did you seek to sit down and actually talk about what the agreement sets out, the provisions in the agreement?---Yes, look, I wanted to talk through the whole thing.

PN72

What did you say to the company to communicate that, that you wanted to talk about the whole thing?---I said, "We want to negotiate an agreement with you, we want to do it on the basis of the document we've already forwarded." I said, "We want to know any concerns that you've got with that document and any other issues that you've got, would wish to see in that document, we're happy to talk about." Their response was, "We're just not interested in the discussion, full stop, Damian. We're just not interested. We want AWAs, we don't want anything to do with this, end of subject." You know, it was all very polite and amicable, there was no hostility there but they just were not interested in talking at all, even though we'd had an agenda clearly set out in the document we indicated we wanted to be the basis of this agreement.

**** DAMIAN PATRICK KING XXN MR MILLAR
PN73

What's the origin of the agreement that you provided back in December? Is that a standard form agreement that you require of employers within this sector?---No, no, it wasn't a standard agreement at all, it was the guys had indicated to me the sort of issues that were important to them and I'd attempted to incorporate those issues in there. Effectively, what the blokes were largely seeking was, they were seeking to reflect the award standards that they're familiar with. They've worked around the metal industry, most of these blokes, they wanted an employment instrument that picked those up because obviously there's a lot provisions that come from the award that are in there. They wanted a significant pay rise, not surprisingly. There was some issues on redundancy entitlements that they raised. I believe there was some issues with overtime payments as well that they wanted to do a bit better than the standard I think incorporated in there but there were - the agenda of the people there was they wanted to get some security with what they saw as award standards, they wanted a collective instrument where they were all covered by it as a group and they wanted a wage increase and a few other bits and pieces.

PN74

Your evidence is that this is a tailor-made agreement for the specific site - - -?
---It's a document that reflects the concerns that the employees raised with me.

PN75

What steps have you taken to draw to the attention of the employees this application today?---The employees? Yes - no, look the employees indicated that they wanted the union to do something. They plainly said to me, "Look, we want this agreement, Damian. We think it's unreasonable that there's six of us here and we want the agreement and they're not prepared to even talk to us. What can we do?" I said, "Well, under this Act, the next step is, after we've tried to reach agreement, we go down the ballot approach in terms of action." The employees said that they were happy for the union to do that, they wanted the union to do it and we went through - on that basis we went through it and formulated the application that supported the members and the employees there.

PN76

Thank you, Commissioner.

PN77

THE COMMISSIONER: Mr Wieladek.

PN78

MR WIELADEK: No further questions.

**** DAMIAN PATRICK KING XXN MR MILLAR
PN79

THE COMMISSIONER: Thanks, Mr King.

<THE WITNESS WITHDREW [10.32AM]

PN80

THE COMMISSIONER: Yes, Mr Wieladek.

PN81

MR WIELADEK: The union submits that this application is appropriately assembled under the Act. We rely on the evidence given by Mr King this morning that the union has genuinely tried to reach agreement in the past and in the present continues to do so, satisfying section 461(1)(a) and section 461(1)(b) of the Act. As for section 461(1)(c), pattern bargaining, we don't see that's an issue and it hasn't been raised as an issue in evidence so on the basis of the fulfilling the statutory tests we say that the ballot is ready to be ordered by the Commission.

PN82

Furthermore, my understanding is the requisite notices made under the directions last Friday by the Commission have gone out at the employer's worksite and the employees have had the opportunity to look at those. In addition to this, the ballot has been put forth of this being a valid bargaining period in place and that's been appropriately authorised by the assistant secretary of the union, likewise the ballot application itself has been authorised by the assistant state secretary of the union, otherwise we rely on the attachments in our submissions in the application and we see that the Commission should order the ballot.

PN83

THE COMMISSIONER: Mr Millar.

PN84

MR MILLAR: Sir, I'm instructed to oppose the application. The company, as one would expect, is opposed to any talk of industrial action onsite. It believes industrial action is unnecessary and premature. Sir, it's a matter for the union to satisfy the requirements of the Act before a ballot can proceed. Whether those requirements have been made out is a matter for the Commission. Can I, however, draw to the Commission's attention the fact that the evidence today points to the attempts of the union to genuinely reach an agreement, being largely concentrated in the period prior to the initiation of the bargaining period.

PN85

In my submission there is little evidence to support genuine attempts being made by the union to reach an agreement during the bargaining period. Largely, the union has made its endeavours in the period before the bargaining period commenced. After the commencement of the bargaining period, there has been an attempt made through apparently two very brief meetings to discuss matters with the company. There was an attempt made, the union relies upon a letter that was sent to the CEO of the company. That wasn't followed up on in any meaningful sense.

PN86

The letter, I note, hasn't been tendered and I'm not attempting to ambush my friend on that point, but there's only some oral evidence before the Commission as to what was actually in that letter. The letter represents, in my submission, an attempt by the union to go through the motions of putting before the company a suggestion about entering into an agreement but is not sufficient to constitute the sort of endeavour that is within the term genuinely try which is the test set down under the legislation. The attempts of the union to reach an agreement, in my submission, falls short of the genuinely try test.

PN87

If, however, Commissioner, you're against me on that point, can I make some observations about the questions in the proposed ballot. The questions that are to be put consist of some 12 separate questions and in particular I am troubled by questions 6 to 9 of the questions that are proposed to be put. They deal with a proposed authorisation of industrial action starting with a duration of four hours, then moving to a duration of one day, then to a duration of two days and then to a duration of one week.

PN88

In my submission, sir, it would be entirely unclear to an employee voting on this ballot what industrial action is in fact being proposed, what in fact they are voting upon, because once these are carried, if that is what is to happen, the union then has an extraordinary discretion as to what is the duration of the industrial action that is to be required. The duration is, within the ballot questions, varied between four hours and one week. There really isn't enough material there for the employees to reach a reasoned evaluation as to the form of industrial action that they are authorising that is to be taken.

PN89

Sir, it's worth bearing in mind the words of the Full Bench in the Country Fire Authority v UFUA Full Bench decision of 8 September 2006 which I won't dwell on in any detail but I do have some copies here. Sir, the Full Bench in that case considered whether the questions which were posed were sufficiently precise as to meet the requirements of the Act and at page 13 of this print and at paragraph 31 of the decision, the Full Bench said this:

PN90

In determining whether to engage in protected action, it is reasonable to expect ...(reads)... while at work and other relevant circumstances.

PN91

In my submission, sir, the questions that are posed here don't allow the employees to know with sufficient precision what the exact industrial action is that will be taken. It's such a broad range of hours and days, indeed one week, that's being specified that upon approving these questions, the union is then able to exercise a decision without necessarily going back to the employees as to the duration of the industrial action. There is simply too broad a discretion being given to the union here. There is simply insufficient detail to enable the employees to make an informed decision about the industrial action that they are authorising if they carry these ballot questions.

PN92

If the Commission pleases, they are the submissions of the employer.

PN93

THE COMMISSIONER: Yes, Mr Wieladek.

PN94

MR WIELADEK: Sir, I'll just very briefly address the issue of the questions. My friend has raised the issue of questions. We dispute the grounds on which he does that. We say that the questions give the employees at the respondent an opportunity to pick and choose what industrial action that they might participate in in the future.

PN95

The test that my friend referred to in CFA case and the Full Bench that refers to what work will not be undertaken and what work will remain to be done in paragraph 31. I think it's quite clear from the question, it's a strike stoppage for four hours for one day, two days, a week. I think it's quite clear from that point of view and in any event, the way the AMWU is run, we act on instructions of our members so it's not a carte blanche discretion for the AMWU, something at the end of the day the members decide upon in this ballot should be ordered and then further give instructions to the union to process industrial action notices should they be required. If the Commission pleases.

PN96

THE COMMISSIONER: Yes, Mr Millar.

PN97

MR MILLAR: There was one other decision I should refer to the Commission on that point and it's one I only have a single copy of.

PN98

MR WIELADEK: Is that Woolworths in Brisbane?

PN99

MR MILLAR: It's Woolworths. Richards SDP - - -

PN100

MR WIELADEK: I think I actually have a copy of that. I've got one for the Commission if it's required.

PN101

MR MILLAR: I'm sorry, sir, to draw it to your attention after obviously I'd finished, but it's simply to draw your attention to paragraphs 21 and 23 of the Senior Deputy President's decision and paragraph 23 in particular:

PN102

As the economic loss to which an employee may be exposed can only be in issue ...(reads)... and its intended duration as well.

PN103

Sir, whilst the individual questions provide a statement of duration, taken together the employee would be left in a position where they're entirely unclear as to what the duration of the industrial action which the union is intending to take will be and in that situation the employees would not be in an informed position to make a proper decision on the questions that are being asked. If the Commission pleases.

PN104

THE COMMISSIONER: This is an application under section 459(1) application for an order for a protected ballot to be held. The application is by the Automotive Food Metals Engineering Printing and Kindred Industries Union. The application proposes a ballot to be taken by Simeon Wines Limited employees in the maintenance division.

PN105

The Commission has heard submissions from Mr Millar representing McGuigan Simeon Wines opposing the application, and Mr Wieladek from the AMWU with evidence being provided by Mr Damian King, setting out the timeframe and the period in which the negotiations for a proposed enterprise agreement have been held.

PN106

There have been, according to Mr King, a couple of meetings held prior to the serving of the bargaining notice. Those meetings were held in approximately November-December 2006. Mr King's evidence indicates that the company's response to those negotiations were they were seeking AWAs and were not interested in a collective agreement with the union.

PN107

Mr King in his evidence states that a further meeting occurred in March 2007 with site management where a draft agreement was put forward by the union, an outline to representatives of the company. The company's response appeared to be, according to Mr King, at that time that they were not interested in a collective agreement with the union but wanted to pursue the issue of AWAs.

PN108

On 28 March 2007 or approximately that date, a bargaining notice was served. Approximately 17 April a further meeting was held with representatives of the company. Again the company appeared to respond by indicating that they were not interested in a collective agreement but were interested in only AWAs.

PN109

Approximately 8 May 2007 a letter was forwarded to the chief executive officer of the company by the union indicating their preparedness to negotiate a collective agreement on behalf of the maintenance employees. On 9 July 2007 Mr King advised us that a further meeting occurred with representatives of the company. Again the response appeared to be that they were not interested in a collective agreement but were only interested in pursuing AWAs.

PN110

The issue of the letter to the CEO appeared to have been raised by Mr King, according to his evidence, and the company did acknowledge some knowledge of the existence of the letter but no response has been provided to the letter from the CEO.

PN111

Mr King in his evidence advises the Commission that the agreement proposed is an agreement that does reflect the desires and issues of those maintenance employees at McGuigan Simeon Wines and is an agreement that reflects local area issues.

PN112

Mr Millar on behalf of the respondent in this matter opposes the application, states that they believe that the industrial action is premature. They advise that it is up to the union to satisfy the Commission that the Act has been complied with and Mr Millar states that there appears to be little evidence to support genuine effort to reach an agreement, particularly after the notice of the bargaining period.

PN113

Two decisions have been provided to the Commission by Mr Millar, a decision by Richards SDP issued in Brisbane on 18 August 2006, and a decision of the Full Bench of the Commission in print PR973841, in particular clause 31. The decision by Richards SDP is print PR973708 and in particular clause 23.

PN114

The Commission, in having a look at the requirements of the Act, particularly section 461, states that an application not be granted unless certain conditions are met and the wording of the two decisions referred to by Mr Millar, the Commission is satisfied that the union has complied with the provisions of the Act. The union has genuinely tried to reach an agreement. I'm not quite sure how many times the union needs to be told no, the company is not interested in a collective agreement. It's like banging your head against a brick wall, after a while it hurts. The Commission is satisfied that the union has genuinely tried to reach an agreement. It is satisfied the provisions of section 461 have been complied with.

PN115

In regard to the two decisions referred to, Richards SDP's decision at clause 23 says:

PN116

The economic loss to which an employee may be exposed can only be measured if he or she is aware of the duration of the proposed action. It follows that the objective stated in section 449(1) can only be met if the application contains a description of the industrial action that not includes the form of the action but its intended duration as well.

PN117

The Commission is more than satisfied that clauses 6 to 10 of the proposed questions to be put in section 452(1)(a) are clear. The proposed period of industrial action, the length of the industrial action and the form of industrial action in the Commission's view is very clear in those questions and the employees, as put by Mr Wieladek, shall have as discretion as to what length of period that industrial action shall be. There is a range of periods in which they can choose whether it is a matter of four hours, whether it is a matter of a day, two days or one week so the Commission is satisfied those provisions have been complied with and the questions are very clear.

PN118

The Commission will issue the appropriate orders in terms of the ballot. The timeframe proposed by the Australian Electoral Office would be the timeframe that the parties shall comply with in terms of the orders issued by the Commission.

PN119

No further business?

PN120

MR MILLAR: If the Commission pleases.

PN121

THE COMMISSIONER: The Commission wishes everyone a good morning and stands adjourned.

<ADJOURNED INDEFINITELY [10.51AM]

LIST OF WITNESSES, EXHIBITS AND MFIs

DAMIAN PATRICK KING, AFFIRMED PN46
EXAMINATION-IN-CHIEF BY MR WIELADEK PN46
CROSS-EXAMINATION BY MR MILLAR PN51
THE WITNESS WITHDREW PN79