BP2007/4201, Transcript of Proceedings [2007] AIRCTrans 637 (4 December 2007)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 17701-1

COMMISSIONER LEWIN

BP2007/4201

s.451(1) - Application for order for protected action ballot to be held
The Australian Workers’ Union
and
Schlumberger Oilfields Australia Pty Ltd
(BP2007/4201)

MELBOURNE

4.02PM, MONDAY, 29 OCTOBER 2007

THE FOLLOWING PROCEEDINGS WERE CONDUCTED VIA VIDEO CONFERENCE AND RECORDED IN MELBOURNE

Hearing continuing

PN1

MR C WINTER: I appear on behalf of the Australian Workers' Union, with me MR D HEALY and MR P FLOOD.

PN2

MR LILBURNE: I seek leave to appear on behalf of Schlumberger Oilfield Australia Pty Ltd.

PN3

THE COMMISSIONER: I take it, Mr Twigg, you're going to be an observer, is that right?

PN4

MR R TWIGG: Yes, Commissioner.

PN5

THE COMMISSIONER: Thank you. Is there any objection to the leave sought, Mr Winter?

PN6

MR WINTER: No, Commissioner.

PN7

THE COMMISSIONER: Very well. Leave is granted, Mr Lilburne.

PN8

MR LILBURNE: Thank you, sir.

PN9

THE COMMISSIONER: Yes, Mr Winter?

PN10

MR WINTER: Thank you, Commissioner. This is an application made under section 451 of the Workplace Relations Act. The AWU seeks an order from the Commission that will authorise a protected action ballot to be held for our members employed by Schlumberger Oilfield Australia Pty Ltd who work here in Victoria and also at various rigs in Bass Strait. I have noticed from the listing, Commissioner, that you have set this down for mention.

PN11

THE COMMISSIONER: Yes.

PN12

MR WINTER: And that today, I suppose, will be a procedural issue in regard to notices going out. Would that be a correct - - -

PN13

THE COMMISSIONER: That's correct. My intention would be, unless there's any opposition to issue an order for the posting of notices.

PN14

MR WINTER: The posting of notices in relation to this matter to make sure that employees are notified, the notices would have to go out to their operation in Sale, but also various offshore rigs and at this stage, to my knowledge, we have members employed at West Kingfish and also at Barracuda, but I'm unaware of any of Schlumberger's employees and our members are on other rigs in Bass Strait.

PN15

THE COMMISSIONER: It might be convenient to find out whether there is an opposition to the posting - an order for the posting of notices. Mr Lilburne, is there any?

PN16

MR LILBURNE: Sir, can I just clarify first the notice. There's a notice in the application which I've been sent a copy of this morning which is Notice to Employees. It appears to have been attached to the application itself and on mine it's page 12 of 20. Headed up Notice to Employees.

PN17

THE COMMISSIONER: Just bear with me for a moment. Which attachment is it, Mr Lilburne? It's not marked, is it?

PN18

MR LILBURNE: No, it's not.

PN19

THE COMMISSIONER: Yes. I think we're all looking at the same thing, Mr Lilburne.

PN20

MR LILBURNE: Yes, sir. I assume that's the notice that we're talking about
to - - -

PN21

THE COMMISSIONER: No, it's not.

PN22

MR LILBURNE: There's a new draft out, is there, Commissioner? I understand.

PN23

THE COMMISSIONER: I'm sorry. Let's assume that it is for the sake of this discussion.

PN24

MR LILBURNE: Yes, sir.

PN25

THE COMMISSIONER: Yes.

PN26

MR LILBURNE: My client has got no opposition to a notice going out to employees, sir. I just have some queries in relation to the order itself, or to the notice itself.

PN27

THE COMMISSIONER: What are they?

PN28

MR LILBURNE: Sir, just looking at the third paragraph of the draft that I have in front of me, "If you are a member of the AWU, an employee of the type specified in the application and not employed under an AWA" - I was just wondering whether there should be an "and" or an "or" after the "AWU" in the first line, and secondly whether there needs to be any clarification in explaining to the employees who is captured by the application because obviously it's just an employee of the type specified in the application may be uncertain to certain people.

PN29

THE COMMISSIONER: What do you have in mind?

PN30

MR LILBURNE: Well, I can't answer the first question, sir. Whether it's supposed to be an "and" or an "or" after the first dot point, "a member of the AWU and an employee specified in the application".

PN31

THE COMMISSIONER: I just assume that you have to be all of those.

PN32

MR LILBURNE: Yes. That was my original submission.

PN33

THE COMMISSIONER: Yes.

PN34

MR LILBURNE: Or assessment of it.

PN35

THE COMMISSIONER: So that's what you're concerned about?

PN36

MR LILBURNE: That's it and just whether the employees seeing that notice would know whether they're covered by it or not, whether there could be any more detail applied to the employees of the type specified in the application.

PN37

THE COMMISSIONER: Right. I think the notice could be more explanatory.

PN38

MR LILBURNE: I think so, sir, so that people can tell whether they're covered by it or not.

PN39

THE COMMISSIONER: All right. Now, Mr Winter has said that due to the locations at which the work is performed by the employees to whom the notices would be directed are remote and diverse, that in order to comply with any order the Commission might make as to the posting of such notices, some time might be required for that purpose. That's what I understand you to say, isn't that right?

PN40

MR LILBURNE: Yes, Commissioner. They - - -

PN41

THE COMMISSIONER: You couldn't be expected to do this in a short period of time. Would that be correct?

PN42

MR LILBURNE: Sir, my understanding is that's correct, sir, but I'm not as au fait with those operations as perhaps I should be if I had more time, sir, so I can't really take it that much further. Mr Twigg might be able to assist us in that, sir.

PN43

THE COMMISSIONER: All right.

PN44

MR TWIGG: Yes, that would be correct.

PN45

THE COMMISSIONER: All right. What sort of time frame do you think it would take for the employer to reasonably comply with a requirement to post a notice such as that contained in the application which Mr Winter can show you if you need to look at it in a prominent location at the work site where all of the relevant employees are performing work? That would be the term of the draft order that I have in front of me, which is standard form of order known as Protected Action Ballot Order No 1, in accordance with the Commission's practice, would require Schlumberger to post the notice of the order with the notice to the employees that Mr Lilburne has been discussing immediately in prominent locations at the work site or, where relevant, work sites, so that there are multiple work sites, before this matter can be heard, that notice has to go up in those work sites and the matter would be listed within a time frame to allow the employees to seek to make any representations they might choose to do to the Commission.

PN46

MR TWIGG: Yes. The first point, posting the notice, should not take very long. We have fax machines on all the work sites, it could be distributed.

PN47

THE COMMISSIONER: So that you could do that within 48 hours, could you?

PN48

MR TWIGG: Yes.

PN49

THE COMMISSIONER: Of the order being issued?

PN50

MR TWIGG: Yes.

PN51

MR LILBURNE: Commissioner, if I may?

PN52

THE COMMISSIONER: Yes, Mr Lilburne?

PN53

MR LILBURNE: Sorry, sir. The only other question of course is rosters and who's on board and who's not on board is another question which may need to be addressed.

PN54

THE COMMISSIONER: Yes. Well, that's the next stage, what's a reasonable amount of time for the employees who were working at the locations to site the notices, and that would be taken into account in fixing any date for hearing of the application, the substantive application.

PN55

MR WINTER: Thank you, sir.

PN56

THE COMMISSIONER: Mr Lilburne, would it be possible for you to actually reduce to writing what you propose? Is there more explanatory form of words that might be included to advantage in the notice to employees which has been filed by the applicant?

PN57

MR LILBURNE: Yes, sir. I can endeavour to do that.

PN58

THE COMMISSIONER: Could you do that this afternoon?

PN59

MR LILBURNE: Absolutely.

PN60

THE COMMISSIONER: All right. I gather the time where you are, it must be about 1 o'clock or 1.30, is that right?

PN61

MR LILBURNE: Here?

PN62

THE COMMISSIONER: Yes?

PN63

MR LILBURNE: Sir, we're two hours behind now. So 2 o'clock.

PN64

THE COMMISSIONER: 2 o'clock, right. The steps that I think should be taken is that if there's no objection to the issuance of an order for the posting of notices, that a time frame be suggested by Schlumberger for the hearing of the application and you file with the Commission and serve on the AWU this afternoon any proposed explanatory additions to the Notice to Employees which would be attached to any order. Mr Lilburne?

PN65

MR LILBURNE: Yes, sir.

PN66

THE COMMISSIONER: What I propose, Mr Winter, is to issue an order tomorrow.

PN67

MR WINTER: Yes, fine.

PN68

THE COMMISSIONER: And to then fix a date having regard to what each of you say is a reasonable time frame which can be communicated by email or fax. Is that suitable to the applicant?

PN69

MR WINTER: That's true. The expected time frame, when we talk about this week - - -

PN70

THE COMMISSIONER: Well, can you give us an indication, Mr Lilburne, or Mr Twigg, what you think would be a reasonable time to get the notices up and allow employees who are subject to the application, or working in an area subject to the application, to have a chance to sight it?

PN71

MR LILBURNE: Sir, I'll leave that to Mr Twigg. I'm uninformed as to that. I suppose the only issue that we should think about is what the roster schedule is for employees to be able to be notified by way of the notice.

PN72

THE COMMISSIONER: All right. What's the nature of the rosters? Are they fortnightly or - - -

PN73

MR TWIGG: Sir, yes, they work two weeks on and one week off - - -

PN74

THE COMMISSIONER: All right. What do you think, Mr Winter? I beg your pardon?

PN75

MR WINTER: There's 23 employees who are governed by the - who are members of ours and who we believe are entitled to vote. I couldn't see any problem having the matter re-listed Thursday afternoon.

PN76

THE COMMISSIONER: On the basis that they would have all sighted the notice by then?

PN77

MR WINTER: And if they wish to come, those who are offshore could
then - they would see the notice Tuesday. They could fly, and I don't presume we could do this, but they could get a chopper back on Wednesday or Thursday morning and appear in the Commission Thursday afternoon.

PN78

THE COMMISSIONER: That is, Thursday this week?

PN79

MR WINTER: Yes.

PN80

MR TWIGG: So their cycle's a month. They could change Mondays. So they would be one third of those employees who are off and who may not be - - -

PN81

THE COMMISSIONER: Right. If the matter was listed on the 7th - well, preferably the 8th, I should say, would that cause you any great - - -

PN82

MR WINTER: I won't be here next week, I've got exams. But someone could do it from the AMWU office, I presume.

PN83

THE COMMISSIONER: Well, the reason I suggest that date is from what Mr Twigg says and my knowledge of the industry, that means that everybody will have had the opportunity to sight this notice by then. Is that correct?

PN84

MR WINTER: That's correct.

PN85

THE COMMISSIONER: Do you agree, Mr Twigg?

PN86

MR TWIGG: Yes.

PN87

THE COMMISSIONER: All right. I'll list this matter for 2.30 pm on 8 November.

PN88

MR WINTER: Could I just, whilst before we do adjourn, just ask whether at this stage the company will be opposing the application?

PN89

MR LILBURNE: Well, I think we'll review it more, but my preliminary view is, and I'll take further instructions on it, I don't see an objection to it, but I'm not going to be held to that. I'll need further instructions on that.

PN90

MR WINTER: The other question I'd ask people to float their heads around is the difficulty in regard to the opening and closing of the ballot, because we're suggesting a postal ballot and there's two weeks on and two weeks off. The length of the ballot, or the time the ballot is open may have to be taken into consideration in regard to people having access to - - -

PN91

THE COMMISSIONER: Does that affect the choice of the 8th as - - -

PN92

MR WINTER: No, it doesn't.

PN93

THE COMMISSIONER: Very well. I understand what you say, Mr Winter, particularly having regard to the nature of the industry and the necessity for employees to be provided with an opportunity to vote. That's a matter that arises in the event that an order is made. At the present time there's no apparent objection to an order as sought. However, it's been made clear and it's recorded that there are no instructions at this time to oppose the application. That does not bind Mr Lilburne's client in relation to the substantive hearing of the application as opposed to the order of the posting of notices. Very well. As I say, the matter will be listed on the 8th at 2.30 pm. I'll issue the order tomorrow. As for the posting of notices, I will have regard to what you forward to me, Mr Lilburne, in terms of any additional explanatory words which might be incorporated in to the notice to employees. Could you be kind enough to serve that on me and also, Mr Winter, of the AWU, and, Mr Winter, if you want to respond or you object to the inclusion of any of the words, I'll deal with that directly with the parties without the necessity for a hearing.

PN94

THE WINTER: That's fine, Commissioner.

PN95

THE COMMISSIONER: The matter is adjourned until 8 November at 2.30 pm.

<ADJOURNED UNTIL THURSDAY 8 NOVEMBER 2007 [4.17PM]