BP2007/117, Transcript of Proceedings [2007] AIRCTrans 604 (5 November 2007)

TRANSCRIPT OF PROCEEDINGS

---

Workplace Relations Act 1996 17691-1

COMMISSIONER WILLIAMS

BP2007/117

s.451(1) - Application for order for protected action ballot to be held
Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union
and
Fielders Australia Pty Ltd
(BP2007/117)

PERTH

9.37AM, THURSDAY, 25 OCTOBER 2007

PN1

MR A TALBERT: I appear for the applicant.

PN2

MR B BRADFORD: I appear for the company.

PN3

THE COMMISSIONER: Thank you. Mr Talbert, this is your application, if you'd like to take us through it, please.

PN4

MR TALBERT: Yes, thank you, sir. This is an application for an order for a protected action ballot to take place. The application is made pursuant to section 451 of the Workplace Relations Act and it seeks an order from the Commission that a postal ballot of relevant employees be held to determine whether a proposed industrial action has the support of those employees. The AMWU has standing to bring the application under section 451 having initiated a bargaining period under section 423 of the Act for the purpose of negotiating a collective agreement with the employer. A copy of a notice to initiate a bargaining period is attachment A of the application.

PN5

The notice was served on 3 September 2007 in accordance with section 427 of the Act and the bargaining period commenced on 10 September 2007. I've just spoken to Mr Bradford of the company briefly before the hearing. He confirmed that the company will not be opposing this application today, sir.

PN6

THE COMMISSIONER: Thank you.

PN7

MR TALBERT: And I'm happy to point out matters to you, unless you have sought more specific questions.

PN8

THE COMMISSIONER: No. Perhaps if I can just ask Mr Bradford to confirm what you've just said and then we can move on from there.

PN9

MR BRADFORD: Yes. We're in the middle of negotiations presently and we will not be opposing the application.

PN10

THE COMMISSIONER: Thank you, Mr Bradford. Mr Talbert, if you would like to continue, there's obviously the rest of the statutory matters I need to be satisfied about before I can issue the order.

PN11

MR TALBERT: Yes, sir. One of the requirements, sir, is the current EBA has expired and that is the case. It expired on 31 August 2007. To be able to meet the requirement - - -

PN12

THE COMMISSIONER: Sorry, what's the name of that agreement?

PN13

MR TALBERT: I'll just have a look. I believe, sir, it's called the Fielders Australia Pty Ltd Western Australian Operations and AMWU Union Collective Agreement 2004 to 2007.

PN14

THE COMMISSIONER: Thank you.

PN15

MR TALBERT: Sir, one of the requirements under the statute is that the union has genuinely tried to reach agreement in regard to the EBA and we submit that the union has. There has been several negotiating meetings between the company and the delegates on the EBA committee. These were held on 11 September, 3 October and 15 October. At these meetings the union presented its log of claims and my instructions are that the only outstanding matter now is the matter of a percentage annual increase. All of the other matters have been agreed between the parties.

PN16

So we say that an important part of genuinely trying to reach agreement is that the union has seriously considered all offers made by the company and we would say that there has. The EBA committee considered each of the offers on behalf of the members and it also took an offer made by the company to a mass meeting where all members voted on it in a secret ballot and this offer was rejected. This took place on 19 October, sir, where the company's offer was 6 per cent, 4 per cent and 4 per cent.

PN17

As Mr Bradford stated, both parties continue to genuinely try to reach agreement and negotiations are ongoing. The union remains committed to generally trying to reach agreement and we hope that a resolution can be reached. A further requirement of the Act, sir, is that the union has not been involved in patent bargaining. We would say that this is not the case and to my understanding there's no suggestion that there has been any patent bargaining either.

PN18

I'm happy to take any questions you may have, sir, in regard to this. Failing that, I say that the union has satisfied the requirements under the Act and would request that that application be granted. We would say, sir, that a draft order was attached with the application in regards to how the ballot is to be conducted.

PN19

THE COMMISSIONER: Mr Talbert, the Australian Electoral Commission has provided a draft timetable for the conduct of a postal ballot. Have you had the opportunity to see that?

PN20

MR TALBERT: No, I have not.

PN21

THE COMMISSIONER: You may not have. It's in their standard form. Perhaps if you take an opportunity to have a look at that now and if you have any comments about it.

PN22

MR TALBERT: Sir, I've had a chance to have a look at the draft timetable and that's acceptable to us.

PN23

THE COMMISSIONER: Thank you. Mr Bradford, I'll give you the opportunity to make any comments if you wish to say anything at this stage, but if you've got nothing further to add, that's fine.

PN24

MR BRADFORD: I think as Mr Talbert has mentioned, it's been an accurate situation. We're in the middle of negotiations as he mentioned and I guess we would open to the original agreement without any industrial action. Nothing further to add, Commissioner.

PN25

THE COMMISSIONER: Thank you for that, Mr Bradford. Very well, it's my intention on the basis of the submissions that have been made this morning and the materials that have been provided in the application to give my decision now. The circumstances in terms of the legislation are such that I'm required under section 457(2) to be satisfied that the applicant has complied with section 454 and that the persons referred to in sections 458(1) and (2) have had a reasonable opportunity to make submissions on this application and given the notifications that have been provided by the Commission and Mr Bradford's attendance here today, I am satisfied that's the case.

PN26

Having further considered the submissions made by Mr Talbert, I accept that the applicant has during the bargaining period genuinely tried to reach agreement with Fielders Australia and further that the applicant is genuinely trying to reach agreement with the company t the moment and that the applicant is not engaged in patent bargaining. Separately I'm also satisfied that granting this application is not inconsistent with the objects of the division in section 449 and there is nothing to suggest that the applicant or a relevant employee has contravened any of the provisions mentioned in section 461(2)(b).

PN27

Consequently as required by section 461 I therefore grant the application for a protected action ballot in the form of the draft order provided by the applicant with some minor changes to the wording. The timetable for that ballot will be as has been provided to the parties this morning and as was proposed by the Australian Electoral Commission. That order will issue later today and my associate will contact both parties and provide a copy of that to you when it is available.

PN28

Finally, written reasons for my decision will be provided to the parties in due course. Can I thank you for your attendance and your submissions here this morning. The Commission stands adjourned, thank you.

<ADJOURNED INDEFINITELY [9.47AM]