BP2007/3639, Transcript of Proceedings [2007] AIRCTrans 531 (11 October 2007)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 17566-1

COMMISSIONER SIMMONDS

BP2007/3639

s.451(1) - Application for order for protected action ballot to be held
Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union
and
AMR Hewitts Print Packaging Pty Ltd
(BP2007/3639)

MELBOURNE

9.14AM, FRIDAY, 28 SEPTEMBER 2007

Hearing continuing

PN1

MR J WIELADEK: I appear on behalf of the AFMEPKIU.

PN2

MS C CLEARY: I appear on behalf of AMR Hewitts Print Packaging Pty Ltd with MR L MIMMO and MR M MIMMO.

PN3

THE COMMISSIONER: Mr Wieladek.

PN4

MR WIELADEK: This is an application by the union under section 451 of the Act for a protected action ballot to be ordered by the Commission. I've spoken to my friend before the Commission sat and there's consensus that the matter won't be opposed. I'll go through the union's submissions in relation to the Act and what we have to satisfy the Commission of, if the Commission is amenable to that course.

PN5

THE COMMISSIONER: Yes, certainly.

PN6

MR WIELADEK: An application was made to the Commission on
26 September 2007. The application had a series of attachments in it - in the communication that was sent over to the company and to the Australian Industrial Registry. Attachment A fulfils the requirements under section 426; B reflects the authority for the union for making the application, that's Mr Jim Reid, the printing division secretary; C is the company declaration and then there are some attachments regarding submissions for draft orders for reasonable opportunity for submissions which I understand the Commission has already made so I won't go through them. Then there's some details about draft protected action orders.

PN7

I'll just briefly speak about the questions, we say that the questions that propose this protected action ballot are in the proper form and of the requisite specificity to satisfy the Act. They are mattes regarding an unlimited number of bans on overtime, an unlimited number of four hour stoppages, an unlimited number of one day stoppages and an indefinite stoppage.

PN8

Moving on from that, the legislation requires under section 461 that three substantial matters be satisfied before the Commission can order such a ballot, firstly, that the parties have genuinely tried to reach agreement, are genuinely trying to reach agreement and they're not undertaking pattern bargaining. I'll just deal with the last point. Pattern bargaining I don't think is an issue at all in this matter so we can put that to one side. The other two matters, there's been a protracted negotiation period for the current - ought to replace the current collective agreement. There's, I think, been about 18 months of negotiations for it and there's been many, many meetings over that course. Just this year alone I consulted with Ms Bicknell about the number of meetings, this year it's
14 meetings, so it has been a process that's been in train for quite some while.

PN9

I think the union and the company are apart on a couple of things, one of which, principally, is whether the form of the document is a rollover of the other documents or some other document take its place and the parties are currently apart. We say that this course of conduct and the fact that we had requested a protected action ballot some weeks ago, and we withdrew that because we understood that there may be some progress to be made. All these matters are indicative of us genuinely trying to reach agreement with the company. We say that the statutory requisites for a protected action ballot have been fulfilled and we request that an order be made to that effect. If the Commission pleases.

PN10

THE COMMISSIONER: Ms Cleary.

PN11

MS CLEARY: Commissioner, as you're aware an application has been made by the AMWU for an order for a protected action ballot to be held. At the outset, Commissioner, we do confirm that the company will not oppose the application or the granting by the AMWU for a order for a secret ballot.

PN12

However, prior to dealing with the administration functions that you need to address today, we would like to put on record, though, that the company is somewhat disappointed by this application due to the fact that last week, on 21 September 2007, a meeting was scheduled between the AMWU and its representatives and the company and its representatives to discuss outstanding issues. Unfortunately, at that meeting, the AMWU representative, Mr Jim Reid conveyed to the company, "We're not interested in hearing what you have to say. Basically, we want a rollover of this agreement plus a guaranteed 4 per cent wage outcome."

PN13

In light of that, Commissioner, we would like to, in addition to this hearing before you this morning, seek the Commission's assistance in trying to attempt to resolve these outstanding matters that currently exist between the parties. Bearing that in mind, Commissioner, the company does confirm that it has complied with the initial orders and the directions issued by the Commission on 26 September 2007 in this matter, and that yesterday it posted a relevant copy of the directions issued, including notice to employees at its workplace and posted a copy of the application so all employees are aware of the matter this morning.

PN14

Commissioner, the respondent confirms that the applicant, AMWU, to first file an application in the Commission for an order, has to establish that the agreement has passed the expiry date, formal bargaining period has been notified to the Commission and the proposed industrial action in not in pursuit of prohibited content as defined in the regulations. We say that obviously that has all been met.

PN15

The application to the Commission must include the questions to be put to the relevant employees, including the nature of the proposed industrial action. The application must also include details of the types of employees to be balloted, the person nominated by the applicant to conduct the ballot and other specified matters and we do not disagree that that information has been included.

PN16

We intend now, with the assistance of the Commission, to settle the draft orders and deal with the administrative details of the conduct of the protected ballot. However, what we would like to ask and seek from the Commission in relation to the order directing the Australian Electoral Commission to forward to the Commission a final list of the persons who are eligible to be included on the role of voters for the secret ballot and Commissioner, I can refer you to the relevant sections, if you'd like me to go to the relevant sections of the Act.

PN17

THE COMMISSIONER: No, that's fine.

PN18

MS CLEARY: On that basis, Commissioner, we would obviously seek that a copy of the eligible voters ..... by the AEC be forwarded to the Commission, which should be kept on a file on a confidential basis in case there's any dispute in the future.

PN19

THE COMMISSIONER: The Electoral Office will retain it and if there's a dispute we'll be able to get access to it. I don't think there's anything to be served by the list being put on file in the Commission particularly.

PN20

MS CLEARY: The only reason why we say that, Commissioner, is when you look at the initiation of the bargaining period, it's a quite broad definition currently, as it's phrased, and it refers to anybody who is eligible to be a member of the AMWU.

PN21

THE COMMISSIONER: Let's have a look.

PN22

MS CLEARY: If you look under the particulars of paragraph - - -

PN23

THE COMMISSIONER: No, I was just going to the draft order rather than the - no, it's only members. If you go to the draft order that's being proposed, and that's all it can be - so what happens? The process is that the union has to prepare a list of its members, the company prepares a list of its employees and the Electoral Office then takes the appropriate action to compile a list of voters that excludes the non-members.

PN24

MS CLEARY: Obviously, in relation to the initiation bargaining period, just to get confirmation obviously from the other side, Commissioner, because their definition of employees is extremely broad - - -

PN25

THE COMMISSIONER: Yes, but the employees to be balloted are only the members of the AMWU.

PN26

MS CLEARY: Obviously, the company in preparing its list would have to include everybody at the site.

PN27

THE COMMISSIONER: Yes, that's right, and the Electoral Office then - - -

PN28

MS CLEARY: Does the comparison.

PN29

THE COMMISSIONER: - - - does the comparison. If you look at the draft order you'll see attachment G. I think that describes the process that the employer provides a list and then the AMWU provides a list - - -

PN30

MS CLEARY: I just wanted to confirm whether - - -

PN31

THE COMMISSIONER: The Electoral Office will retain the list of members, that is voters from their point of view. I don't think there's any virtue in the list being provided to the Commission. It just clogs up our files.

PN32

MS CLEARY: Okay. Obviously, our concern was because there's a partialised union workforce at this site, that there is clarity as to who actually is a union member and who can engage in the industrial action if it were to occur. That's our only concern, Commissioner.

PN33

THE COMMISSIONER: Yes, that's fine. I propose to go into conference. There's a couple of things that I need to talk about.

<SHORT ADJOURNMENT [9.25AM]
<RESUMED [9.33AM]

PN34

THE COMMISSIONER: The Commission is satisfied that the requirements for the granting of an order for a protected action ballot to be held are satisfied and I propose to make an order. The persons to be balloted will be those that are specified in the draft order by the AMWU. The sort of requirements that the order will include are those that are contained in that draft order at attachment G. The questions to be put to the relevant employees are those contained at point 8 of attachment F of the application. I think the rest of the order will be largely machinery, requiring cooperation by both sides with the ballot agent and requiring cooperation with any directions that the ballot agent might give.

PN35

In terms of the conduct of the ballot the timetable will be that on Monday next, 1 October by 4 pm the employer and the applicants are to provide lists and covering declarations regarding membership and the employer will be required to place the ballot agent's notice in prominent locations at the workplace by 4 pm. The role of voters will close at 5 pm on Tuesday, 2 October. There will then be three working days in this case until the ballot is conducted on Monday, the 8th. It will be an attendance ballot to commence onsite at 6.30 am and to conclude at
5 pm. The actual voting times must be outside working hours. That means that the available times are between 6.30 and 7.10 am, 12.30 and 1 pm and 4 to 5 pm. The ballot will close at a time to be specified which will be at 5 pm on Monday,
8 October. There will be a formal declaration of the result on Tuesday, the 9th. The ballot count, the parties will be informed of the result on Monday, the 8th.

PN36

If there's nothing further, these proceedings are adjourned. They'll be resumed at 12 noon on Monday next in conference. That conference will not go ahead if the AMWU advises it won't be attending. If there's nothing further, these proceedings are so adjourned.

<ADJOURNED UNTIL MONDAY 1 OCTOBER 2007 [9.36AM]