BP2007/3128, Transcript of Proceedings [2007] AIRCTrans 410 (24 August 2007)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 17261-1

COMMISSIONER BLAIR

BP2007/3128

s.451(1) - Application for order for protected action ballot to be held
Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union
and
Venture Industries Australia Pty Ltd
(BP2007/3128)

MELBOURNE

5.23PM, THURSDAY, 09 AUGUST 2007

Continued from 7/8/2007

PN67

THE COMMISSIONER: Can we deal with the application for the ballot, please, and I note that when we initially touched on this, Mr Georgiou advised the Commission that Acton SDP has already issued an order and that order has elapsed due to - I'm not quite sure why.

PN68

MR GEORGIOU: Commissioner, the order didn't elapse. The order was activated and the ballot was held.

PN69

THE COMMISSIONER: Sorry, and an agreement was reached, but then the agreement wasn't lodged.

PN70

MR GEORGIOU: The ballot was held. 95.7 pre cent of the employees who participated in that ballot supported the position put by the union in that ballot to take indefinite strike action and prior to activating their wishes, the company negotiated a deal with the unions that has subsequently not been - we used to be able to say certified, but we no longer say certified. The agreement has - - -

PN71

THE COMMISSIONER: Lodged.

PN72

MR GEORGIOU: Well, it was never lodged and therefore the timeframe expired so there is no agreement. Commissioner, Mr Feldman foreshadowed before you on Monday that he wished to make submissions with regard to the union purporting to pursue claims that are not allowable under the Act. Commissioner, I believe that it's appropriate that he demonstrate from the time that her Honour issued the orders where the union has done that, because this matter has been before Commissioner Gay on 2 March, it's been before her Honour Acton SDP on 14 May and at no stage has the employer alleged that the union is doing anything contrary to the Act.

PN73

Mr Wandmaker made submissions before her Honour and her Honour granted the orders as sought by the AFMEPKIU in exactly the same terms, save for a numbering. This would be ballot number 2 as currently sought so unless the company has evidence that the union has put forward claims contrary to the Act, then I think they should confine themselves to the period between 14 May when her Honour made those orders and now because it has never been raised in the past and we say this is just a furphy and trying to delay the Commission from issuing the orders.

PN74

I would find it strange that her Honour would have got it wrong because her Honour is obliged under the Act to inform herself of all the circumstances pertaining to a matter. Her Honour was aware of the log of claims that had been served by the union on the company. Her Honour was aware of the history of the negotiations, indeed her Honour held conferences between the parties so her Honour was well aware of the issues that were in dispute between the parties and her Honour made an informed decision in PR977060 and granted the order and there were no impediments.

PN75

Unless Mr Feldman, and I'm mindful of the time and my tiredness - Commissioner, I had an early kick-off this morning so I'm a bit - - -

PN76

THE COMMISSIONER: You think you've got problems. I've been on a Full Bench.

PN77

MR GEORGIOU: I don't make any comment about that, Commissioner, because I'm not aware of it.

PN78

I'm saying, Commissioner, that unless Mr Feldman wishes to raise - the union has agitated for prohibited content after her Honour's orders, then I say the submissions that I made on Monday with regard to the application by the union being in conformity with the Act and in conformity with decisions of this Commission, in particular Lawler VP in the Nurses case, I ask that the Commission grant the orders on and from today's date. In preparation, Commissioner, I have prepared a draft order, if I could, to save yourself some time - Commissioner, could I ask that that be marked.

EXHIBIT #G1 DRAFT ORDER

PN79

MR GEORGIOU: Commissioner, G1 is identical to the order PR977060 issued by Acton SDP on 14 May, save that the Commission as currently constituted is named, the date has been changed and it's the protected action ballot order
number 3. That's the other change and the other change is in Part VIII with regard to the dates for the ballot. The times are identical and the sites are identical and the question to be put to employees is identical. The other change is in the term and date of effect and the union asks that the order come into effect on and from today's date. If the Commission pleases.

PN80

THE COMMISSIONER: Thank you. Yes, Mr Feldman.

PN81

MR FELDMAN: Commissioner, as I indicated in my preliminary submissions last Tuesday, a basis for seeking to oppose this order was because some new facts had arisen, so we're not asking you to overturn the order of Acton SDP. I may make some comment as part of giving you context about negotiations as part of a chronology, but the majority of my submissions would arise for factual - or relate to factual matters that have arisen post the previous order of Acton SDP.

PN82

We oppose the application again broadly on three grounds. Firstly, we say that the applicant is not genuinely trying to reach agreement with the employer. Secondly, we say that the applicant in making the application is doing so other than in accordance with the purposes as set out in section 435(2)(e) of the Workplace Relations Act and thirdly, we say that proposed industrial action is being taken to support or advance claims to include prohibited content in the agreement.

PN83

In relation to my first point of opposition, section 461 of the Workplace Relations Act requires the Commission to take into consideration various matters before granting the application sought and this includes within section 461(1)(b) that the applicant is genuinely trying to reach agreement. We submit that the applicant is not genuinely trying to reach agreement and I propose to provide a brief chronology of recent events top assist the Commission.

PN84

As the Commission is aware, the employer's current certified agreement, the Venture Industries Australia Pty Ltd Enterprise Agreement 2003 was certified by Commissioner Hingley on 1 December 2003 and had a nominal expiry date of 14 November '06. The parties started negotiations in September '06, prior to the nominal expiry date of the 2003 agreement but the negotiations were not concluded until early June this year.

PN85

The month of May seems to be the crucial period of negotiation that's relevant to the current proceedings and a crucial issue in the negotiations for the company was the terms of the redundancy clauses. As a parallel with negotiations for the new collective agreement, consultation and negotiations were under way between the company and the union in relation to possible redundancies.

PN86

On 16 May 2007, Mark Walker, who is the CEO of the company wrote to all staff and that letter was also copied to Mr Ian Jones, stressing the need to restructure to remain profitable and foreshadowing the need for redundancy based on LIFO principles being last in first off.

PN87

On 21 May 2007 as part of the negotiations a letter of understanding was signed by Mr Jones on behalf of the AMWU and co-signed by Mr Michael Cain on behalf of the company and I'll furnish a copy of that letter.

PN88

MR GEORGIOU: Commissioner, I thought this was subject of submissions made to you in the previous proceedings with regard to whether this letter was admissible or not and what status the Commission should give it. I don't object to the Commission reading both its contents and noting the signatures. I do object to it being put on the public record for no other reason that unless Mr Feldman is to put all of the correspondence, both before this and after this with signatures that vary this document, then the document, in our submission, has no weight.

PN89

THE COMMISSIONER: It's a question of what weight the Commission gives it.

PN90

MR GEORGIOU: Yes, Commissioner.

PN91

MR FELDMAN: Commissioner, we say it's certainly - while there may have been drafts that were produced beforehand, this is the document that both parties were willing to actually their signatures to. They are open letters. They're not marked as being confidential, without prejudice or subject to privilege so we say they're open letters and we're able to provide them openly to the Commission.

PN92

I take the Commission to really the first paragraph of that letter which indicates that the parties have now finalised the last outstanding issue of the bargaining process dealing with voluntary redundancy.

PN93

MR GEORGIOU: Commissioner, can I apologise. I thought this was another letter. I just read it. I've got absolutely no objection to this letter being part of the record or not being a public document.

PN94

THE COMMISSIONER: Right. Mr Feldman.

PN95

MR FELDMAN: Could we have that marked.

EXHIBIT #F1 LETTER OF UNDERSTANDING DATED 21/05/2007

PN96

MR FELDMAN: It's good that we're in agreement on something.

PN97

THE COMMISSIONER: The peace is broken.

PN98

MR FELDMAN: On 28 May 2007 the union organisers reviewed the final draft of what was the proposed collective agreement. On 4 June 2007 the vehicle division shop stewards met and reviewed the final draft of the proposed collective agreement. The following day, on 5 June '07 the draft of the final proposed collective agreement was provided to the union state secretary and the federal secretary and on 6 June 2007 there was an employee mass meeting that voted to accept the final draft as an in-principle agreement and this was to be known as the Venture Industries Australia Pty Ltd Collective Agreement 2006-2008.

PN99

The parties agreed that this in-principle agreement would be lodged for review by the Workplace Authority pursuant to section 357(2) of the Workplace Relations Act to determine that the in-principle agreement did not contain any prohibited content. On 7 June 2007, based on the assumption that an in-principle agreement had been made, the company provided employees with a 4 per cent pay increase, as contained in the in-principle agreement, including backdating those increases to the start of 2007 and in light of these proceedings the company reserves its position in relation to the status of these payments.

PN100

On 12 June 2007 a further letter of understanding, dated 25 May 2007, was signed by Mr Jones on behalf of the union and company-signed by Mr Cain on behalf of the company where the understanding in respect of the operation of the proposed redundancy and introduction of change clauses were set out. I would seek to provide a copy to the Commission of that letter. We've just furnished really a signed copy that we say represents what was agreed in relation to the redundancy process, of how redundancy would be carried out.

PN101

On 19 June 2007 the in-principle agreement was sent to the Workplace Authority for the section 357 review and on 25 June, a few days later, Mr Cain and Mr Brett Hanson, who are both directors of the company, met with both Mr Ian Jones and Paul de Felice to discuss the restructuring at Reservoir and the first stage of redundancies.

PN102

On 29 June 2007 a fax was sent by the company to Mr de Felice regarding the implementation of the proposed restructure, including a letter dated 26 June and the fax also contained notes that the managers were using in discussions with staff, which was provided to the union but not for general distribution. I would also seek to provide just a copy of that fax and the various attachments.

PN103

THE COMMISSIONER: This letter of understanding, you're tendering that as well, Mr Feldman?

PN104

MR FELDMAN: Yes, I am, sorry.

EXHIBIT #F2 LETTER OF UNDERSTANDING DATED 25/05/2007

PN105

THE COMMISSIONER: Thanks. Are you tendering this?

PN106

MR FELDMAN: I'm tendering this document.

EXHIBIT #F3 IN-PRINCIPLE AGREEMENT

PN107

MR FELDMAN: On 1 July the company then issued a notice to staff calling for expressions of interest for voluntary redundancies and this followed meetings with the employees and the union requested the company actually put their proposed process in writing and I would seek to tender a copy of that employee notice.

EXHIBIT #F4 COPY OF EMPLOYEE NOTICE

PN108

MR FELDMAN: We say that notice, which really called for voluntary redundancies was consistent with the understanding that was reached and the memo that was signed by Mr Jones, the one that was dated 25 May.

PN109

THE COMMISSIONER: Can I just ask, you say in F2 that:

PN110

Voluntary redundancy: the company can call for volunteers' expressions of interest based on defined criteria (eg. years of service) ...(reads)... all applications are at the discretion of the company.

PN111

This notice says that:

PN112

Due to a reduction of volumes from Fords, 30 positions in some areas and functions of the business ...(reads)... redundancy, skills, knowledge, experience and so forth.

PN113

Where is there a signed agreement or anything that says that the redundancies are confined to those with 10 years or less service?

PN114

MR FELDMAN: The terms of the 2006-2008 agreement didn't contain those words. It was within the side letter that was signed by Mr Jones, that is F2, that that understanding that the terms of what was in the 2006-2008, the in-principle agreement was really clarified. The reference in the memo from 1 July which makes reference to the 10 years of service, we would say that was reflected in that letter of understanding where in the brackets there on the first bullet point it makes reference to years of service being a defined criteria that the company could select from.

PN115

THE COMMISSIONER: I have a view that the pacifists in this world refer to them to as dot points. The angry people refer to them as bullet points.

PN116

MR FELDMAN: Which term did I use?

PN117

THE COMMISSIONER: You used bullet points.

PN118

MR FELDMAN: I'll correct the record and say dot points, then. Sorry, Commissioner, did that clarify your question?

PN119

THE COMMISSIONER: My understanding is that there is an issue about the
10 years or less service. The issue, as I understand it, is that there are a number of people sith significantly more service than 10 years that are saying, "I would like to go. I'd like to put my hand up" but the company is saying it's 10 years or less. That's disputed by the unions, as I understand it. To put that beyond doubt, where is there any reference to an agreement that says voluntary redundancies are confined to 10 years or less?

PN120

MR FELDMAN: I don't think there's anything from the union that says 10 years or less, other than in F2 the reference to - - -

PN121

THE COMMISSIONER: Eg. years of service.

PN122

MR FELDMAN: Years of service, and of course, all applications also were to be at the discretion of the company which is the final sentence of that clause.

PN123

MR GEORGIOU: Commissioner, I don't mean to cut Mr Feldman down in his prime, but this has absolutely nothing to do with the application before the Commission. It's a rehash of another matter that was before the Commission as currently constituted.

PN124

THE COMMISSIONER: Well, no. I don't mean to cut you down in your prime, but the argument, as I understand it, from Mr Feldman, goes to the issue of whether the union is genuinely trying to reach an agreement. They say that the assertion, as I pick it up, is that an agreement has been reached. The union now seeks to move away from that agreement and now asks the Commission to order a ballot to be conducted for the purposes of industrial action, despite the fact that their view is that an agreement had been reached regarding a major part of the enterprise agreement.

PN125

MR GEORGIOU: I'm still at a loss to understand where in any of the submissions made to date, unless Mr Feldman is building up to a crescendo, but nothing in the exhibits provided or in any submissions made to date do anything other than rehash the matter that was before the Commission as currently constituted and there is no evidence or supporting documentation that the union has in any way retracted from any of the contents of these. That doesn't help him with regard to saying we are not genuinely seeking. In actual fact, it does the opposite. I'm just trying to get to the point of why we're rehashing this when it's already on the public record, all of the submissions that have been made on this point.

PN126

MR FELDMAN: Commissioner, there have been various different proceedings and what I'm really trying to seek to do is to set out the chronology and provide the documents so that the Commission can have the full picture. I will indicate that my key submission is that the company believes that it did reach an agreement and the union is seeking to depart from that and I will just continue with the chronology and then make the formal submissions on that point.

PN127

THE COMMISSIONER: Okay.

PN128

MR FELDMAN: On 9 July '07, the company received the response from the Workplace Authority and that was by way of a letter dated 28 June and the Workplace Authority found eight separate clauses containing prohibited content and there were possibly three clauses that contained prohibited content and each of those clauses had been proposed and drafted by the AMWU in the course of the negotiations. I believe a copy of this letter has previously been furnished but for completeness it might be worth tendering another copy.

PN129

MR GEORGIOU: Commissioner, it's G2.

PN130

THE COMMISSIONER: Yes, I've already got it.

PN131

MR GEORGIOU: We can't have two G2s or G1s.

PN132

MR FELDMAN: On 10 July the company provided a copy of this letter to the AMWU and on 11 July the union provided an email which I'll also seek to tender.

PN133

MR GEORGIOU: No, you won't. It's got without prejudice on it.

PN134

MR FELDMAN: No, I don't think it does.

PN135

MR GEORGIOU: Yes, you're right, you can.

PN136

MR FELDMAN: If I could tender that.

EXHIBIT #F5 AMWU SUGGESTED CHANGES TO VENTURE EBA TO COMPLY WITH WORKPLACE AUTHORITY

PN137

MR FELDMAN: To identify F5, it's entitled AMWU Suggested Changes to Venture EBA to Comply with Workplace Authority. What this document does, it contains some marked up changes to most of the clauses that were identified as containing prohibited content by the Workplace Authority. I believe on that day Mr Michael Cain met with both Ian Jones, the federal secretary and
Mr de Felice, the state secretary and indicated that after reviewing that email that it generally appeared to be acceptable.

PN138

On 12 July Mr Jones wrote to Michael Cain, the director of the company, acknowledging the findings of the Workplace Authority with respect to the prohibited content and his letter, which I also seek to tender - - -

PN139

MR GEORGIOU: Commissioner, you have that as AMWU1.

PN140

THE COMMISSIONER: I think it might be appropriate that, even if it's in another file, it be submitted in this file. It's a separate application that I'm dealing with.

PN141

MR GEORGIOU: Sorry, yes.

PN142

THE COMMISSIONER: The same as I think the document that Mr Georgiou referred to as G2 in the previous document, it might be appropriate if that be resubmitted and we mark that as an F.

PN143

MR FELDMAN: Yes. I seem to have misplaced that particular letter which was the letter of 12 July.

PN144

MR GEORGIOU: Commissioner, if I can assist, I have - - -

PN145

MR FELDMAN: I'm sorry, I thought it was in this file.

PN146

THE COMMISSIONER: That's okay.

EXHIBIT #F6 LETTER ADDRESSED TO MR CAIN DATED 12/07/2007
EXHIBIT #F7 LETTER FROM AUSTRALIAN GOVERNMENT WORKPLACE AUTHORITY

PN147

MR FELDMAN: If I could take you to the second paragraph of that letter where Mr Jones stated that - again in acknowledging the Workplace Authority's finding in relation to prohibited content, he stated that:

PN148

Most of these clauses are viewed as critical to the effective operation of the agreement and the union believes ...(reads)... viewed by the union as being critical to the agreement.

PN149

The letter also requested that the company contact him to recommence negotiations and the company promptly did so and Mr Cain contacted Mr Jones and again confirmed that the proposed amendments provided by the AMWU appear to be acceptable, therefore, the company was of the view, as at that date, that an agreement had been reached.

PN150

As at 23 July the union appeared to also consider that an agreement had been reached and on that day the Commission heard initial submissions in relation to the separate section 709 application lodged by the AMWU, and that's the matter DR2007/526 which was lodged on 9 July 2007.

PN151

Putting aside for the moment the issue as to whether an application should have been made under that section, or rather section 170LW of the pre-reform Act, in the transcript of those proceedings Mr Georgiou on behalf of the union at PN7, and I might, for ease of the Commission just furnish a copy of that transcript. At PN7 it's stated that:

PN152

The parties have negotiated an enterprise agreement and the negotiations concluded some six weeks ago ...(reads)... agreement that was reached between the parties.

PN153

I believe that copy was tendered. We note that the Commission as currently constituted acknowledged that that wasn't a legally binding agreement at that time. The company since that time has acted in good faith to finalise the agreement so that it could become a legally binding agreement. A meeting was scheduled between Mr Cain and Mr Jones last Friday, on 3 August 2007, but this was cancelled by Mr Jones at the last minute and then the other proceedings that have occurred this week started to occur.

PN154

The company believed that it had reached an agreement with the union as at 7 June 2007. The only obstacle was the removal of the prohibited content. However, the company also believed it had reached agreement in relation to how to resolve this issue as communicated by Mr Cain to Mr Jones on 11 July 2007. However, it's our submission that the union, subsequent to this agreement being reached, has decided to seek to resile from the previously agreed position, in particular in relation to the understanding that was reached regarding the process that would be undertaken regarding redundancy and restructure. The AMWU, by departing from what was considered the agreed position, as reflected in the two letters of understanding that I've tendered and that are signed by the federal secretary of the union, the unions have to some extent moved the goal posts on redundancy in order to scuttle the agreement that's been reached.

PN155

Based on the chronology that I've presented, the union has not, and certainly not since 23 July and arguably since 12 July, made any genuine attempts to reach agreement with the company and on this basis we say it's open to the Commission to find that the union is not genuinely trying to reach agreement and therefore not to grant the application for the ballot orders sought by the union. The authorities indicate that the question of whether the applicant is genuinely attempting to reach agreement will be a question of fact and agreed in each case. In relation to that authority, I would rely on the decision of the National Union of Workers v Blue Circle Transport, PR973654 of 11 August 2006 by Watson VP and I provide a copy of that decision again for convenience. It is paragraph 23 that I would rely on. I might give the Commission time to read that paragraph.

PN156

THE COMMISSIONER: Right. Thank you.

PN157

MR FELDMAN: It's that second-last sentence in relation to it being a question of fact and possibly a matter of degree in any given case. This formulation of Watson VP was adopted by the Full Bench in the matter of Tyco Australia Pty Ltd trading as Wormald , which is PR974317, which was constituted by the President, Giudice J, Lawler VP and Commissioner Williams. It's paragraph 12 of that decision where they adopted the position of Watson VP.

PN158

In relation to my second argument as to why the application should not be granted, section 435 of the Workplace Relations Act sets out that a threshold requirement that must be met for a party to seek to take protected industrial action and pursuant to section 435(2)(e) the union and employees can organise or engage in protected action for the purpose of supporting or advancing claims made in respect of the proposed collective agreement. Further to my preliminary submissions that I made on 7 August '07, we submit that based on the recent events the application before the Commission is not in respect of supporting or advancing claims made in respect of the proposed collective agreement, rather it's made in the context of a dispute about the current restructuring being undertaken at Reservoir, the purpose of the union really seeking to agitate to prevent the company from undertaking this restructure even though this is not a matter that is dealt with in the proposed collective agreement.

PN159

Finally, I move to prohibited content and our submission that the application for a secret ballot cannot be granted as it's contrary to section 436 as we say the proposed protected action would be to support or to advance claims made to include prohibited content in the proposed collective agreement, in this sense by making claims for prohibited content to be included. We say the union is not genuinely trying to reach an agreement and this ties in with section 461(1)(b) that I referred to previously.

PN160

The Commission in assessing this matter should not look solely back to the original log of claims that Mr Georgiou at the previous hearing asserted was the relevant document, rather what is highly relevant are the other documents and claims that have been made by the union. As I've previously outlined, the
in-principle agreement between the parties was by mutual agreement lodged with the Workplace Authority for a prohibited content review. The Workplace Authority identified prohibited content and the company provided the response from the Workplace Authority to the union to seek redrafting. As this issue is yet to be resolved, it would appear that the proposed protected action does support a claim relating to prohibited content in that to the extent that the union is still pressing for that agreement to be made, that agreement contains prohibited content.

PN161

Again I refer to the letter of 12 July from Mr Jones, the federal secretary of the AMWU to Michael Cain and that letter acknowledges, while acknowledging the findings of the Workplace Authority with respect to the prohibited content, it went on to state, and I'll reiterate, most of these clauses are viewed as critical to the effective operation of the agreement and the union believes it's appropriate that negotiations recommence. We say that could be read to indicate that the union is pressing with the claim for prohibited content.

PN162

Further, at the initial hearing of the section 709 application that I referred to in the transcript I've previously provided, Mr Georgiou on behalf of the union at paragraph number 14 of that transcript, he stated that some of those clauses with regard to the dispute that's between the parties with regard to proposed redundancies, one in particular, clause 10.4, which is referred to on page 4 of the advice from the Workplace Authority talks about processes for managing organisational change. That is viewed as being critical to the operation of the agreement. Mr Georgiou has asserted that the union is not seeking prohibited content on the basis that the union - or as I understand Mr Georgiou to say, that they might not be seeking prohibited content, but we say that that's certainly not the case.

PN163

If I could also take the Commission to the document entitled AMWU Suggested Changes to the Venture EBA to Comply with the Workplace Authority, that's F5, and if I could refer you to page 2, clause 7.95. The union's recommended changes are there in upper case and there's a suggestion there that the words are:

PN164

I suggest we just delete it and cover it by an exchange of letters or else a change shall not and may not.

PN165

What this suggested amendment by the AMWU proposes therefore, is to continue to seek to bargain for what is prohibited content in what we say is a separate side document, so their proposal is to remove it out of the agreement but to seek to continue to bargain for it in a side document. If I could take you to some relevant authorities that indicate that that is in effect bargaining for prohibited content. Firstly in the decision of NUW v Blue Circle Transport, Watson VP cited with approval the decision of Acton SDP in the AFMEPKIU - it seems to roll off
Mr Georgiou's tongue easier than mine - v Kempe Engineering Services, which is PR973592 where her Honour said that - sorry, I'll furnish a copy of that decision. Sorry, I think I previously have with the NUW decision. In paragraph 24:

PN166

In the circumstances I am not satisfied that during the bargaining period the AMWU genuinely tried to reach agreement ...(reads)... proposed union collective agreement with the employer.

PN167

Watson VP went on to state at paragraph 21 that:

PN168

I agree, with respect, with her Honour's analysis. I am also of the view that the same conclusion arises if claims ...(reads)... being pursued in conjunction with claims for a collective agreement.

PN169

Further, in paragraph 22:

PN170

It cannot be doubted that a union which pursues claims which include prohibited content during a bargaining period ...(reads)... reach agreement in the relevant sense under the Act.

PN171

Based on the documents that we've submitted we consider that there is sufficient evidence before the Commission that the applicant should not be granted the application for a secret ballot.

PN172

We may also foreshadow that if the union was successful in their application and ultimately seeks to engage in industrial action or an indefinite strike, the company would reserve the right to make an application to suspend the bargaining period under section 432 and under section 433, which could amount to industrial action that is threatened is likely to cause significant damage to an important part of the Australian economy. We say that the important part of the Australian economy is the vehicle industry as the company are a ..... manufacturer for the three major manufacturers that operate in Australia. If the Commission pleases.

PN173

THE COMMISSIONER: Yes, Mr Georgiou.

PN174

MR GEORGIOU: The Greek Goddess, Artemis, used to use a long bow and I've been known to use one but that was pretty good as well by Mr Feldman. He's clutching at straws, Commissioner. To deal with whether we're genuinely bargaining in order to try and reach agreement, nothing could be more than reaching agreement than finding the signature of the federal secretary on a document. That's how far we've progressed in negotiations. We are certainly genuinely attempting to reach agreement and all of the unions and the divisions that have members at Venture have been genuinely bargaining to reach agreement

PN175

The number of meetings, and I should perhaps tender the number of meetings that have been held. I'll do that in a minute, Commissioner. Mr Cummaudo managed to get it all on one page by using two columns. You can't be more genuine than that.

PN176

THE COMMISSIONER: What, using two columns?

PN177

MR GEORGIOU: No, the number of meetings, Commissioner. Could we get a copy made at some stage for Mr Feldman? They were tendered before her Honour so they shouldn't be unknown to the company. Commissioner, sorry, because I haven't got a copy they were the ones that were tendered before her Honour and Mr Feldman has covered meetings that have occurred subsequent to that that didn't involve the organiser and Mr Cummaudo but did involve Mr Jones and indeed, on 11 July the company says that Mr Jones in his negotiations agreed to some changes to the document and that the company was happy. Then the next day, of course, they say that Mr Jones wasn't happy and sent them a letter saying that there was no agreement.

PN178

There's been no evidence put to you, Commissioner, that the parties haven't been negotiating in good faith. Indeed, F5 shows that the parties are still having dialogue. The unfortunate part is that it didn't cover - the company didn't provide the covering email that accompanied this, that I had sent to Mr Wandmaker from Venture that said, "This is a good start for negotiating, can you contact me," and I haven't got a copy with me because I didn't realise that it would be submitted by the company. Mr Wandmaker is present and he can instruct Mr Feldman as to whether the email that I sent to him invited the company to contact me to negotiate around these items.

PN179

There are two examples, Mr Jones' meeting of 11 July, F5 and my email to Mr Wandmaker that reflect that we are still negotiating with regard to that and I understand that there have also been meetings between Mr Jones, Mr de Felice and Mr Cummaudo and the company to try to advance the enterprise agreement.

PN180

The company has made spurious claims that the only issues that are in contention between the parties are the redundancy clauses and then, of course, he highlights that clause 10.3 is crucial and that's to do with the change clause, Commissioner, and the change clause has a lot more to do with anything other than redundancies, but to do with restructuring and organisational change. It's in F5 on the second page - sorry, it's 10.4 and it goes to the issue of outsourcing the viability of efficiency and profitability of the company and where significant change has any impact on employees. It also goes to the production, workplace location program, organisation structure, technology or outsourcing that will have effects on employees . When Mr Feldman says that both I and Mr Jones, Mr Jones in the letter to Mr Cain that's marked F6 says that this is critical, there can be no more critical clause in an agreement than that one that deals with the whole restructure of the organisation and the implications that that has for employees.

PN181

The false interpretation that Mr Feldman gives that clause is that the letter from Mr Jones implies that we want the clause as it is. All that F6 says, most of these clauses are viewed as critical, and as George Orwell wrote in 1984, some are more critical than others, in particular the introduction of change clause, but in no way can you extrapolate from that, Commissioner, that that means we want it as it is.

PN182

I think that the Commission must draw the conclusion that there have been genuine attempts because signatures are on documents and had the OEA or the Workplace Authority not sent what is F7, we would have had an agreement but we go now to the issue of Watson VP's decision in Blue Circle. In that decision the company relies on the decision of Acton SDP in AFMEPKIU v Kempe Engineering and you'll note, Commissioner, that that decision predated the decision of her Honour to grant the identical orders in PR977060.

PN183

What we draw to the Commission's attention is in the middle of the quote in his Honour Watson VP's decision is:

PN184

I do not think a union can be regarded as having genuinely tried to reach agreement with the employer and relevant employees during the bargaining period if during that period the union has made what is clear prohibited content.

PN185

Can I just circle the word "clear" and ask the Commission to do the same because it is clear prohibited content and then she reiterates this by saying in the next sentence:

PN186

The inclusion of what is clear prohibited content.

PN187

Then in the second-last paragraph:

PN188

If it makes what is clear prohibited content.

PN189

When the parties negotiated all of these clauses, they made it clear in their presentations that they would exclude anything that was prohibited, that when we rationalised all of the previous agreements and the awards that are applicable, we isolated what we believed to be prohibited content and we sought to eliminate any - and it's the same exercise, Commissioner, that was conducted at the Ford Motor Company. As the Commission would be aware, the agreement that was reached between the parties, save for a few clauses, was identical to that of the Ford Motor Company Enterprise Agreement, because as the Commission would be aware, this company has its origins in a spin-off from the Ford Motor Company. Indeed, the awards and the wage rates are almost identical to those that applied at the Ford Motor Company.

PN190

The document that the parties used was a document that the predecessor to the Workplace Authority, the Office of Employment Advocate, or whatever they were called, had approved so the parties never willingly or clearly negotiated around the issue of prohibited content. Her Honour goes in paragraph 21 to say:

PN191

It is clear in my view that the claims made by the union on 20 April 2006 included claims for prohibited content.

PN192

It is not clear in this matter and she says further in 22:

PN193

It cannot be doubted that a union which pursues claims which include prohibited content -

PN194

then she goes on -

PN195

- cannot be regarded as genuinely trying to reach agreement in a relevant sense under the Act.

PN196

Not us, not guilty, Commissioner. She says in 25:

PN197

While I am satisfied with the informal abandonment of claims which would amount to prohibited content removes an impediment to a finding that the applicant continually tried to reach agreement.

PN198

The document that - F5 shows that we had abandoned trying to pursue prohibited content. That's exactly the whole point of 5. If the Commission isn't satisfied with that the log of claims that was attached to the original bargaining period which her Honour saw and examined contains no prohibited content.

PN199

The decision I want to take the Commission to now is a decision of Commissioner Lewin very recently, on 16 July in PR977548 and it involves a union, the CFMEU and an organisation called Programmed Maintenance Services who are contractors to Yallourn Energy, Commissioner. Have you got a copy of that? I thought
Mr Feldman, as a lawyer, would know this one backwards. Commissioner, if I can take you to page 15 of that decision and the presence of prohibited content not determinative ipso facto and it's paragraph 51. Then he goes with regard to certain conclusions:

PN200

Even if I were wrong in any of these conclusions, I would not be satisfied that the CFMEU had not made genuine attempts to reach agreement and is not genuinely attempting to reach agreement. As Ms Gray -

PN201

and Ms Gray is the advocate for the CFMEU -

PN202

- rightly points out, the mere presence of some elements of claim or proposal which are or may be or be considered ...(reads)... Full Bench decision of Tyco that the company has relied on.

PN203

Then there's a reference to the decision in National Union of Workers v Blue Circle and there is an analysis of that by Commissioner Lewin and he says:

PN204

In this case there is evidence that the CFMEU has been mindful of the need to ensure that the subject-matter ...(reads)... addressed as part of its bargaining behaviour.

PN205

That is exactly what F5 does, Commissioner. Further on, and this is the bit that becomes a bit more interesting, in paragraph 54 in the middle of that Commissioner Lewin says:

PN206

Even if the claims constituted prohibited content I have no reason to believe that the CFMEU would be absolutely determined ...(reads)... established that the content is prohibited by the legislation accordingly.

PN207

Then in 55 he delivers the killer blow to the company's submissions:

PN208

Unfortunately, from the Commission's general experience and knowledge, it appears that much agreement making ...(reads)... offered by the employees of the Workplace Authority -

PN209

the employees who have provided F7, Commissioner, previously the Office of the Employment Advocate -

PN210

that are seemingly questionable and lack legal foundation in decisions of the courts while no doubt those concerned ...(reads)... Full Bench directs, the facts will have to speak for themselves.

PN211

You can't get any stronger words as to what the Commission should do with prohibited content and allegations that they have been used to stop a union from seeking orders as the AFMEPKIU seeks today.

PN212

Commissioner, two very brief other decisions that I take the Commission to, a decision of Commissioner Harrison, AFMEU v Amcor Packaging, PR974835, and again it involves whether the parties were calling up provisions of an award that may have contained prohibited content. Commissioner Harrison has a similar view to Commissioner Lewin and finds that:

PN213

It is not fatal to an application of the kind currently before the Commission that inadvertently a party may have bargained around prohibited content provided it doesn't sneak into the final agreement.

PN214

The other, Commissioner, is Lawler VP in CFMEU v Thiess Pty Ltd, PR974390. where his Honour in paragraph 25:

PN215

It is undoubtedly the case, as Ms Docking submits, that seeking to include a term for prohibited content in a workplace ...(reads)... pointing with a wavering finger to an affirmative conclusion.

PN216

I think he might have described the submissions of the company in this matter there.

PN217

Commissioner, we have genuinely tried to reach agreement. We are within our rights under the Act to pursue the ballot that we seek and for the members to say whether we are following their wishes or not. Commissioner, in the transcript that was quoted, and I made certain references to the document, you correctly said that the agreement wasn't an agreement because it hadn't been submitted to the Workplace Authority in accordance with the Act, that the time had expired and we now seek to agitate for a decent change clause and other clauses so that we can have an agreement that sees us into the future.

PN218

If the Commission pleases, we ask that the Commission grant the orders as sought by the union. If the Commission pleases.

PN219

THE COMMISSIONER: This is an application under section 451(1) of the Workplace Relations Act. The application is for an order for a protected action ballot. The Commission has heard from the parties involved, Mr Georgiou representing the AMWU, the abbreviation, and Mr Feldman representing Venture Industries.

PN220

Mr Feldman representing Venture Industries asserts that the union is not genuinely trying to reach an agreement, that the union is pursuing prohibited content by way of clauses that have been already rejected by the Workplace Authority in correspondence of 28 June 2007 addressed to Mr Andrew Myle of Gavins Lawyers.

PN221

It is unfortunate that the parties have got to this stage given that an in-principle agreement was reached and was submitted to the Office of Workplace Authority for the purposes of lodgement and to seek their opinion as to whether or not the agreement contains prohibited content,.

PN222

There are a number of clauses that the Office of Workplace Authority has identified as being prohibited content. It would appear that the important clause is clause 10.4 entitled Introduction of Change. This clause is referred to as clause 10.3 in a document dated 25 May 2007 signed by Mr Ian Jones, federal secretary of the union, and Mr Michael Cain, director of Venture Industries, but the Commission understands it to be the same clause.

PN223

Mr Feldman says that the union is trying to pursue prohibited content by way of correspondence identified by Mr Jones dated 12 July 2007 that does refer to clause 10.4. Mr Jones in the correspondence says:

PN224

Most of these clauses are viewed as critical to the effective operation of the agreement and the union believes it is appropriate that negotiations recommence. In particular the introduction of change clause is viewed by the union as being critical to the agreement.

PN225

What is linked to the introduction of change clause, of course, is voluntary redundancy. It would appear in the correspondence dated 25 May 2007 that an agreement had been reached in principle regarding the application of voluntary redundancy. That particular dot point says:

PN226

The company can call for volunteers' expressions of interest based upon defined criteria (eg years of service) taking into account skills retention and some exceptions on a case-by-case basis, eg. compassionate grounds. All applications are at the discretion of the company.

PN227

The company decided to seek expressions of interest with employees with 10 years' service or less for voluntary redundancies. The union has objected to that approach, hence an application was made under section 709 of the Workplace Relations Act 1996 and the Commission as currently constituted still has that file on foot.

PN228

The Commission has to determine whether or not the parties are genuinely trying to reach an agreement, in this instance the union, given that it is the union's application for a ballot. The mere fact that the union seeks to pursue clause 10.4, despite the fact that it has been deemed to be prohibited content, does not necessarily mean that the union is pursuing clause 10.4 in this instance in the form that has been rejected by the Workplace Authority.

PN229

It is the Commission's view that the union can still pursue an introduction of change clause, provided that it does not seek it in the same terms, that the terms, if they do reach agreement, are terms that do comply with the Act and are not prohibited content.

PN230

The Commission notes attachment C of the documentation presented by the union which is a declaration by applicant for a secret ballot order. That declaration is signed by Mr Ian Jones, federal secretary of the AFMEPKIU vehicle division. In that Mr Jones says:

PN231

Pursuant to section 453(1) of the Workplace Relations Act 1996 declare that the industrial action to which the application relates does not involve claims for prohibited content.

PN232

The Commission has had its attention drawn to a decision of Commissioner Lewin in print PR977548 at point 56 where the Commissioner says:

PN233

With respect to my colleagues, in my view the industrial jurisprudence developed by members of the Commission that have been required to deal with similar situations in proceedings such as these, provide sound and appropriate recognition that genuine attempts to reach agreement may be made in situations where some actual or perceived prohibited content forms part of a contingent or provisional negotiating position during the bargaining process. In each case as the Full Bench directs, the facts will have to speak for themselves.

PN234

The Commission is satisfied that the requirements of the Act in section 461 have been met and that the parties, in particular the union, the applicant, has genuinely tried to reach an agreement, however, on one crucial point the parties cannot reach that agreement.

PN235

The Commission is satisfied that it is able to issue the order and it will issue the order in the terms sought by the union. A program has been provided by the Australian Electoral Commission that provides that for Thursday, 16 August an attendance ballot shall occur. The Commission would ask that the parties at least have some discussions about the appropriate timeframe in which the attendance ballot should occur so it doesn't create any disruption to the enterprise and the Commission will now get its instruction from its associate, and if the parties could provide the Commission with the addresses in which the ballots are to be conducted at.

PN236

All in the draft?

PN237

MR GEORGIOU: Commissioner, the times are on the draft and the addresses.

PN238

THE COMMISSIONER: Are those times agreed to?

PN239

MR GEORGIOU: Not at this stage, Commissioner.

PN240

THE COMMISSIONER: You may need to have discussions to make sure they're agreed to so they don't impose unnecessary disruptions to the company's enterprise.

PN241

MR GEORGIOU: Those times were agreed last time in the order - - -

PN242

THE COMMISSIONER: Can you just make sure that they are agreed this time.

PN243

MR GEORGIOU: Yes, I will, Commissioner. I'm just saying that they were agreed last time.

PN244

THE COMMISSIONER: Yes, I understand that. Thank you. The Commission will issue the order accordingly. No further business. The Commission will stand adjourned.

<ADJOURNED INDEFINITELY [6.35PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #G1 DRAFT ORDER PN78
EXHIBIT #F1 LETTER OF UNDERSTANDING DATED 21/05/2007 PN95
EXHIBIT #F2 LETTER OF UNDERSTANDING DATED 25/05/2007 PN104
EXHIBIT #F3 IN-PRINCIPLE AGREEMENT PN106
EXHIBIT #F4 COPY OF EMPLOYEE NOTICE PN107
EXHIBIT #F5 AMWU SUGGESTED CHANGES TO VENTURE EBA TO COMPLY WITH WORKPLACE AUTHORITY PN136
EXHIBIT #F6 LETTER ADDRESSED TO MR CAIN DATED 12/07/2007 PN146
EXHIBIT #F7 LETTER FROM AUSTRALIAN GOVERNMENT WORKPLACE AUTHORITY PN146