BP2007/4042, Transcript of Proceedings [2007] AIRCTrans 636 (4 December 2007)

TRANSCRIPT OF PROCEEDINGS

---

Workplace Relations Act 1996 17702-1

COMMISSIONER BLAIR

BP2007/4042

s.451(1) - Application for order for protected action ballot to be held
Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union
and
Prixcar Services Pty Ltd
(BP2007/4042)

MELBOURNE

1.35PM, TUESDAY, 30 OCTOBER 2007

Continued from 22/10/2007

PN29

THE COMMISSIONER: Good afternoon. No change in appearances?

PN30

MS J LANE: No.

PN31

MR M GEORGIOU: There is with regard to the AFMEPKIU. I have with me MR D SMITH, the assistant federal secretary of the vehicle division and
MR D NUNNS who is the assistant state secretary of the Victorian branch of the union, Commissioner.

PN32

THE COMMISSIONER: Right, Mr Georgiou, thank you. All right.

PN33

MS LANE: Sorry, Commissioner?

PN34

THE COMMISSIONER: Yes, sorry Ms Lane.

PN35

MS LANE: With me today is MR J FORSYTH and MR K ROSS, general manager of Prixcar.

PN36

THE COMMISSIONER: Thank you. All right. As the parties are all aware this is an application under section 451(1) of the Workplace Relations Act for a protected action ballot. The matter was set down for mention and programming on the 22nd. Today is a day to either deal with an application in full or as the Commission indicated it would be available to try and assist the parties if they felt it was of some assistance. Now, in the meantime I understood that the parties were to have some discussions, further discussions about their enterprise agreement. Mr Georgiou, it’s your union’s application.

PN37

MR GEORGIOU: Commissioner, the parties have had further discussions and unfortunately they haven’t been able to reconcile their differences and therefore the union seeks to pursue its application.

PN38

THE COMMISSIONER: Okay. It’s your application, Mr Georgiou.

PN39

MR GEORGIOU: Commissioner, the union has applied for orders pursuant to section 451 and 455 of the Act. The application by the Commission is accompanied by a declaration by Mr Ian Jones, the federal sectary of the vehicle division of the union that the union has not and does not intend to bargain with regard to any matter that may be prohibited under the Act. Mr Jones has authorised pursuant to the rules of the union to make the application and then there are statements in support of the application of the union which is self evident.

PN40

As stated last time, Commissioner, the parties have met on about six occasions. The parties have bargained in good faith. We don’t think that it’s been acrimonious. There is an issue to do with wages applicable and the date and period of operation of the wage increases and on that basis the union wishes to pursue the orders as sought and we ask that the Commission take into consideration the attached reasons to the application and grant the application. If the Commission pleases.

PN41

THE COMMISSIONER: Right, thank you. Ms Lane.

PN42

MS LANE: Commissioner, we agree that there have been significant negotiations since the mentioning hearing a couple of weeks ago. We have a chronology of the various meetings and offers and counter offers that have been put if that would be of interest to you. However, we’d like to flag an issue with the application as it stands and rely on section 461(2) of the Act and request that you exercise your discretion in refusing the order as being contrary to the objectives of division 4. I’m happy to run through some arguments around that.

PN43

Specifically the AMWU’s bargaining period nominates the business to be covered by the proposed collective agreement as Prixcar Services, specifically the sites listed in its original BP application, Minto in New South Wales, Port of Brisbane Queensland, Kewdale in WA, Wingfield and Netley in South Australia and Altona North in Victoria. The AMWU’s amended application for the protected action ballot nominates various industrial actions and doesn’t expressly limit these particular actions to any particular site which nominates various types of action.

PN44

However, we are concerned that the protection action ballot seeks an order for ballots to be conducted in only three of the states: Queensland, New South Wales and Victoria. It omits completely the two sites in South Australia and the site in Western Australia. We think the effect of this application is to limit the ballot to AMWU members who work for Prixcar in Queensland, New South Wales and Victoria therefore potentially disenfranchising the members who work in WA and South Australia. We think this is inconsistent with section 449 of the Act which states that the object of division 4 is to establish a transparent process which allows employees directly concerned to choose by means of a fair and democratic secret ballot whether to authorise industrial action supporting or advancing claims by, in this case, the AMWU.

PN45

Unfortunately the expression “employees directly concerned” is not defined in the Act. However, section 451(1) states that a person, in this case the AMWU, may during a bargaining period apply to the Commission for an order for a ballot to be held to determine whether the proposed industrial action has the support from relevant employees. Relevant employees is defined in section 450 to mean, amongst other things, any member of the organisation who is employed by the employer and whose employment will be subject to the agreement. In this case the proposed collective agreement with Prixcar covers AMWU member employees in New South Wales, Queensland, Victoria, WA and South Australia.

PN46

To the extent that the AMWU has members at Prixcar sites in each of those states the protected action ballot should be conducted in those states and the ballot application should be refused on the grounds that the AMWU seeks to restrict the ballot to only some of its members. The AMWU may have no members at the Prixcar sites in WA and South Australia. We don’t know about that. It’s not for us to make a call. But we note that attachment G of the application of their ballot application is a draft order for compilation of the role of voters and it requires both Prixcar and the union to provide a list of all employees/all members who would be bound by the proposed collective agreement referred to in the relevant bargaining period notice, not just those who happen to work in Queensland, New South Wales or Victoria.

PN47

Now, section 461(2) provides that even if the Commission is satisfied that the
pre-requisites in subsection (1) have been made out, and we don’t for a minute contest those, the Commission may at its discretion refuse to make the order if it is satisfied that granting the application would be inconsistent with the relevant objects of that division. Unfortunately there are no cases directly on point. Lacy SDP was asked to consider section 461(2) with respect to an application by the Media, Entertainment and Arts Alliance in a decision [2007] AIRC 139 and I have the case available here.

PN48

However, in that case the employer asked the Commission to refuse the application on the grounds that industrial action, if taken, would destroy the company’s economic viability and understandably Lacy SDP was not satisfied that that argument provided a basis for refusing the application. Lawler VP considered the validity of an application for a protected action ballot in respect of CSBP Limited, and I have the case citation and the case, where the LHMU application excluded two employees at the employer’s regional depots. However, the LHMU did not argue whether the Commission can make a protected action ballot in relation to some or only some only of the employees and Lawler VP did not consider the application of this particular section 461(2).

In Programmed Maintenance Services the Full Bench considered whether employees bound by a pre-reform AWA, the nominal expiry date of which it passed, could be eligible for the role of voters. Sections 449 and 461(2) were not at issue, but in deciding that employees, those pre-reform AWA employees, could be bound Giudice J, Hamilton DP and Commissioner Whelan said at paragraph 20:

PN49

We think it appropriate to point out that the context in which the term “bound” appears in 467(1) and in the definition of “relevant employee” in section 450 is that of a proposed agreement. Accordingly these references are to be construed as references to the employees that the organisation proposes should be bound by the proposed agreement. Such a construction is more harmonious with the other relevant statutory provisions and can be adopted without any violence to the language of the statute. Whether an agreement will be reached and if so the form of the agreement that the form the agreement will eventually take and which employees will bind are unknown.

PN50

And particularly most relevantly:

PN51

It is clearly consistent with the statutory provisions that the role of eligible voters should be as comprehensive as possible.

PN52

And it’s for this reason, Commissioner, that we ask you to exercise your discretion and refuse this application as being inconsistent with the objectives of division 4.

PN53

THE COMMISSIONER: Thanks, Ms Lane. Yes Mr Georgiou.

PN54

MR GEORGIOU: Commissioner, I’m indebted to Ms Lane for picking up the fault in attachment G and with the indulgence of the Commission we would ask that attachment G, being draft orders sought, be varied to apply to Prixcar Services Pty Ltd with regard to the sites in Minto in New South Wales, the Port of Brisbane in Queensland, the Altona North site in Victoria - sorry, I’ve got to take that back. It’s the sites that the company operates in Queensland, New South Wales and Victoria. I don’t have to specify which sites they are. So I am indebted and we ask that the Commission so vary attachment G to pertain only to those AMWU members and employed by Prixcar Services Pty Ltd in the states of Queensland, New South Wales and Victoria.

PN55

With regard to the submissions made by the company there is nothing in the Act that states that all members of the union who may be covered by the agreement must participate in industrial action or be subject of a ballot for protected industrial action. The union chooses to pursue industrial action with regard to the employer at sites where it believes that may have the most effect with regard to getting the employer to accede to its requests with regard to the claims by the union. There is a comment. It’s more than a comment because it quotes both the case and an academic authority. It’s the issue of Media, Entertainment and Arts Alliance re North Coast News Pty Ltd and others and it’s a decision of the Full Bench of the Commission in PR928033 and at paragraph 61, Commissioner, the Full Bench states:

PN56

Courts and tribunals are generally circumspect about applying the techniques of statutory construction and legal interpretation to add conditions, implications or glosses that are not articulated in the plain words of the statutory definition unless there is clear contrary and intention.

PN57

And that quote comes from Craies - C-r-a-i-e-s - on Statute Law 7th Edition at 92 citing Coxhead and Mullis, an 1878 3 CPD. And it’s with regard to statutory interpretations. The shorthand of all that is if the statute doesn’t say you can’t do it, you can’t impute into that, that that’s what the makers of the statute intended, if the parliament had intended that you had to have a ballot of all members of the union then it would have said so. There is no requirement to the contrary with regard to whether you can bargain for agreements and the company has been presumptive that there may not be. For example, five comparable enterprise agreements as a result of our bargaining and our protected industrial action.

PN58

The company is being presumptive as to the outcome of any further negotiations. But that’s not fatal to the union, Commissioner, because in the AFMEPKIU v Kemp Engineering Services PR973592 her Honour Acton SDP in refusing an application by the union for a protected action ballot, she refused it on the grounds of the genuineness of the negotiations. But there was no issue taken with the fact that the union agitated for ballot of employees at two separate sites and they were separate applications, Commissioner. One for Kemp Engineering Services site at Moon Street in Moolap and the other one was with regard to Kemp’s Operations and Sheds 6 Portarlington Road in Moolap.

PN59

And they were two separate applications but for the same company. So the Commission - and no one took issue with the fact that you could make applications for various sites of the same employer. So we say that there is nothing in the Act that prohibits the union from making the application as it has made it. The other issue is, Commissioner, that we are only obliged to disclose to the electoral office the members of the AMWU who we seek to have vote on the issue. I raised this issue with Ms Lane and with regard to, say, an employee like the Ford Motor Company where there are three divisions of the union and the Commission views the union as being one organisation, whether or not a division of the union would be prohibited from conducting a ballot of the divisions’ members given that the Commission recognises the union as one big happy family.

PN60

There have been occasions where the Commission has granted a ballot application for sections of the union and there is no reason why the Commission should exercise any discretion in this matter. The application is correctly before the Commission. We are entitled to pursue the ballot in accordance with the Act and we ask that the Commission so make. If the Commission pleases.

PN61

THE COMMISSIONER: Mr Georgiou, Ms Lane I think refers to two sites in South Australia and one site in Western Australia.

PN62

MR GEORGIOU: Yes, Commissioner.

PN63

THE COMMISSIONER: Are there members of the union at those three sites?

PN64

MR GEORGIOU: I am not prepared to disclose where the union has members, Commissioner.

PN65

THE COMMISSIONER: Is it intended that those employees at those three sites, one in Western Australia two in South Australia, to be covered by the agreement?

PN66

MR GEORGIOU: Yes, Commissioner.

PN67

THE COMMISSIONER: All right then. I would think if one looks at section 449 and then looks at the definition of relevant employee as proposed under section 451 I think you are bound to include those members in - and I assume there are members because you’re not prepared to disclose whether there are or aren’t - you are bound to include those in the ballot.

PN68

MR GEORGIOU: My submissions went to there is nothing that obliges - - -

PN69

THE COMMISSIONER: I’m saying to you, I’m saying to you I think you are bound to include those people in the ballot.

PN70

MR GEORGIOU: If there are members there.

PN71

THE COMMISSIONER: If there are members there and you won’t tell me whether there are, so I assume that there are.

PN72

MR GEORGIOU: You shouldn’t make that assumption, Commissioner. I would be disclosing - - -

PN73

THE COMMISSIONER: Well then you need to debunk whatever assumption I’m prepared to make.

PN74

MR GEORGIOU: I’m prepared to disclose to the Commission privately so that the Commission can be satisfied. I am not prepared to disclose it in front of the employer that information.

PN75

THE COMMISSIONER: Well, if you have, and you’re not prepared to disclose that in front of the employer, at some point the employer will find out because there will be a ballot.

PN76

MR GEORGIOU: Only if the employer monitors the attendance for that ballot.

PN77

THE COMMISSIONER: Well there’s to be a list provided.

PN78

MR GEORGIOU: Not to the employer, Commissioner.

PN79

THE COMMISSIONER: No, but the union will provide a list.

PN80

MR GEORGIOU: To the electoral office.

PN81

THE COMMISSIONER: To the electoral office and your order that you seek to have, is that by attendance?

PN82

MR GEORGIOU: Yes, Commissioner.

PN83

THE COMMISSIONER: Right. So unless you decide that it won’t be by attendance, it will be by a postal vote - - -

PN84

MR GEORGIOU: No. How would the employer know if there are 50 - - -

PN85

THE COMMISSIONER: Well, I’m saying if your order says by attendance then they will know whether there are union members there or not because they will have to attend the vote.

PN86

MR GEORGIOU: Yes.

PN87

THE COMMISSIONER: Unless you amend your application to say it will be by postal vote then they won’t know.

PN88

MR GEORGIOU: No, I don’t want to amend the application.

PN89

THE COMMISSIONER: Well then they will know.

PN90

MR GEORGIOU: Yes.

PN91

THE COMMISSIONER: So I’m not sure what the point is.

PN92

MR GEORGIOU: I’m not prepared to disclose to the employer - - -

PN93

THE COMMISSIONER: Well Mr Georgiou, I don’t play games. You know I don’t play games. So I suggest your union go away and think about its application because at this point I am not prepared to grant it until these games are put aside and you be up front with me and you tell me (a) what sites are to be included and if there are union members and if there are union members and you don’t want the company to know there are union members then you make an amendment to your application to include a postal ballot, not an attendance ballot, if that is your concern. But until you do that, until you clarify exactly what you’re after - - -

PN94

MR GEORGIOU: Would you countenance, Commissioner, that we amend the application to have a postal ballot for the other states? And the reason for that is that the employees have not disclosed to the employer that they are members of the union, they don’t pay their union dues in the same manner and therefore they don’t want for the employer to be aware that they are members of the AMWU. And therefore with regard to the South Australian and Western Australian operations we are prepared to amend our application for there to be a postal ballot for those two states and an attendance ballot with regard to Queensland, New South Wales and Victoria?

PN95

THE COMMISSIONER: Well, no. I’m not prepared to do that. I’m not prepared to do that. If you want a postal ballot, fine. Amend your application and include a postal ballot across all the sites that are going to be covered by this agreement, proposed agreement.

PN96

MR GEORGIOU: Can I seek an adjournment to seek instructions from
Mr Smith and Mr Nunns, Commissioner?

PN97

THE COMMISSIONER: Sure. How long would you like?

PN98

MR GEORGIOU: Ten minutes.

PN99

THE COMMISSIONER: Okay. We’ll stand adjourned for 10 minutes. Thanks.

<SHORT ADJOURNMENT [1.58PM]
<RESUMED [2.17PM]

PN100

THE COMMISSIONER: Mr Georgiou.

PN101

MR GEORGIOU: Commissioner, thank you for the adjournment and thank you for your wise counsel. The AMWU seeks to amend its application given the views of the Commission and it’s with the indulgence of the Commission. With regard to page 1 of its application the employer, we seek to delete the words “employed in the states of Queensland, New South Wales and Victoria” which would make the application to apply to all members of the AFMEPKIU vehicle division employed by Prixcar services regardless of state. There would then be a subsequent variation on page 2 of the application, types of employees to be balloted section 452(1)(b) and we would ask that the Commission allow us to delete the words “in the states of Queensland, New South Wales and Victoria”.

PN102

Then on page 8 of the submissions, Commissioner, in paragraph 4 all members of the AFMEPKIU vehicle division we would delete “in the states of Queensland, New South Wales and Victoria”. And then on page 10 with regard to the submissions in paragraph 5 we would ask that the words “in the states of Queensland, New South Wales and Victoria” be deleted so that it would apply to all employees of Prixcar Services Pty Ltd. Then on page 13 which is the draft order, Commissioner, in 5.1 subject to clause 5.2 the types of employees to be balloted, those employees of Prixcar Services Pty Ltd, delete “in the states of Queensland, New South Wales and Victoria who are members of the AFMEPKIU”.

PN103

I retract my submission earlier that attachment G be amended to only apply to AFMEPKIU members in Victoria, New South Wales and Queensland. So that was the only bit that doesn’t need to be changed. I thank the Commission for its direction in this matter and we ask that the - it should be noted that it’s ironic that an employer wants us to take protected industrial action at all of its sites rather than at some of its sites, but that’s very generous of them.

PN104

THE COMMISSIONER: I’m not sure that that was their intention, but anyway.

PN105

MR GEORGIOU: It may be the application of it all. But be that as it may, Commissioner, we ask now that the Commission accept the amendments as proposed by the union and grant the orders as sought by the union in amended form.

PN106

THE COMMISSIONER: Is the ballot still proposed to be by attendance?

PN107

MR GEORGIOU: Yes, Commissioner.

PN108

THE COMMISSIONER: What happened to the issue of people being identified who may not want to be identified in those states that you had a concern about?

PN109

MR GEORGIOU: They will have to make a decision based on the Commission’s determination if they wish to participate or not participate. That’s for their own conscience. There’s nothing we can do about it. It’s the same at any site. If an employee believes that he or she may be identified, that’s the risk you take. If the Commission pleases.

PN110

THE COMMISSIONER: Mr Georgiou, what I'll get you to do is to provide to the Commission, with a copy of course to Ms Lane, an amended application.

PN111

MR GEORGIOU: That will be about Thursday, I think.

PN112

THE COMMISSIONER: That’s fine.

PN113

MR GEORGIOU: Or do you want it this afternoon? I can arrange for it to be done this afternoon.

PN114

THE COMMISSIONER: No. Because what I intend to do is to not grant the order in the terms sought in regards to attendance ballot. The ballot will be by post. Ms Lane? Sorry Ms Lane. Mr Georgiou, I would need them by no later than tomorrow because we’re in Warrnambool Thursday and Friday, then I’m away for a week.

PN115

MR GEORGIOU: I will do that, Commissioner. I'll make sure that you’ve got them by close of business tomorrow.

PN116

THE COMMISSIONER: Right, thank you. Now Ms Lane, you touched on the issue in opposing the application of economic impact upon the employer. That’s my term, you used some other term. Yes.

PN117

MS LANE: We are happy with the Commission’s suggested orders and have no further submissions to make.

PN118

THE COMMISSIONER: Okay, all right. Thank you. All right Mr Georgiou, if you provide the Commission with amended orders by tomorrow if you could.

PN119

MR GEORGIOU: Yes.

PN120

THE COMMISSIONER: And sorry to put that on you, but it’s the time constraints that the Commission has personally. Hang on, I'll get my instructions. My associate, Mr Georgiou, is prepared when we adjourn to sit down with you to just go through what the amendments are to save time so that we can get the orders out as quickly as possible and notify the Australian Electoral Commission. And of course the time frame proposed by the Electoral Commission will be altered in order to accommodate a postal ballot rather than an attendance ballot.

PN121

MR GEORGIOU: Yes, Commissioner.

PN122

THE COMMISSIONER: Okay. All right, thanks for that. The Commission will stand adjourned. We’ll issue the orders accordingly.

<ADJOURNED ACCORDINGLY [2.24PM]