BP2008/2536, Transcript of Proceedings [2008] AIRCTrans 153 (4 April 2008)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 18301-1

COMMISSIONER BLAIR

BP2008/2536

s.451(1) - Application for order for protected action ballot to be held
Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union
and
Golden Circle Limited t/a The Original Juice Company
(BP2008/2536)

MELBOURNE

9.05AM, THURSDAY, 20 MARCH 2008

PN1

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

PN2

MS C CLEARY : I appear on behalf of the Original Juice Company with
MR G CLIFFORD, general manager of the Mill Park site.

PN3

THE COMMISSIONER: This is an application under section 451(1) for a protected action ballot. The matter has been listed for mentioning and programming. Mr Wieladek, the documentation that has been provided, how many conferences have occurred between the parties?

PN4

MR WIELADEK: I understand there's been quite an amount of negotiation. If I could briefly give the history about the negotiations between the parties. There was a series of negotiations, then a protected action ballot was applied for by the union before her Honour Acton SDP on 29 January. That ballot was then had, some industrial action was taken, then what appeared to be a deal between the parties was put forward. What happened then was, when a written document was provided it seemed to not fulfil the expectations that we thought were understood between the parties on a number of issues.

PN5

They were that the provisions around meal breaks were different from the award provision around meal breaks. We were working on the assumption that the award meal break provisions were still applying. There was to be a morning shift allowance introduced, whereas we see that if it is introduced in the terms the company desires, it would undermine the nightshift allowances and penalties under the award. Finally, there's some issue about the way our shifts would be implemented. I think when it was reduced to writing, the parties were then apart again.

PN6

THE COMMISSIONER: Have the parties met to try and resolve those differences around those issues?

PN7

MR WIELADEK: I understand there has been some discussions between our organiser, Mr Mavromatis and the company.

PN8

THE COMMISSIONER: Ms Cleary.

PN9

MS CLEARY: Commissioner, Mr Wieladek is correct in his submission to you that there was a prior secret ballot application made to her Honour on 29 January 2008 but no industrial action actually occurred subsequent to that order actually being issued due to the fact that the company representative and the AMWU representatives were meeting to reach an agreement. In fact, on 20 February 2008 myself, along with the company representative and the union representatives met until 11 pm at night to resolve the differences and on that date we were of the belief that all issues had been resolved and that Mr Mavromatis was present when I was actually typing the agreement up on a power point sort of projector.

PN10

We say that we're disappointed that we've got to this stage now, Commissioner, because the company genuinely on that day met the offer, the wage outcomes the union said that they would agree to and therefore, we would argue that section 461 of the Workplace Relations Act has not been met, that the applicant is not genuinely trying to reach agreement with the employer and that we oppose the making of this order. Just for your information, Commissioner - - -

PN11

THE COMMISSIONER: I suppose you kept your stamina up during those long negotiations by drinking orange juice, did you?

PN12

MS CLEARY: Yes. Just so you're aware, Commissioner, due to the fact that the company has become quite frustrated with the process, an agreement is currently out for consideration before the employees as a non-union collective agreement and the voting will occur on Wednesday next week. Therefore, the secret ballot order application has been made during that seven day period. If the Commission pleases.

PN13

THE COMMISSIONER: Mr Wieladek.

PN14

MR WIELADEK: Sir, I just might deal with what I heard my friend speak about industrial action. She may be correct that there was no industrial action taken. I just saw a notice for industrial action was in the file. I didn't know whether that had actually been actioned.

PN15

Sir, we seek to get the appropriate notices to go to the employees about the ballot hearing date, once set down by the Commission.

PN16

THE COMMISSIONER: Ms Cleary, though, says there's a ballot to take place on Wednesday and it's within seven days - the notification here is within the
seven days of the notification to conduct a ballot for a non-union agreement. What section are we looking at, Ms Cleary?

PN17

MS CLEARY: It's just gone out for the seven day consideration, Commissioner, so they will be holding the ballot for the endorsement of the agreement on the Wednesday and the document was issued to all employees on Tuesday.

PN18

THE COMMISSIONER: What do we do, Mr Wieladek?

PN19

MR WIELADEK: Sir, if I could just have a minute, if I could just see what section my friend is reading from in the Act.

PN20

MS CLEARY: Sir, I'll just clarify, we would say that if you were to hear this matter, Commissioner, that we would be seeking to obviously argue our case that the secret ballot order not be issued. However, I just wanted to make you aware of the fact that there is an employee collective agreement out at the moment for consideration and the ballot will take place on Wednesday. Obviously we believe that the company should be able to proceed with that ballot seeing it's a confidential voting process, and then we'll see what the outcome is.

PN21

THE COMMISSIONER: What section are you relying on, Mr Wieladek's question is?

PN22

MS CLEARY: I'm just relying on the fact that it's actually out for - - -

PN23

THE COMMISSIONER: For the vote of the employees.

PN24

MS CLEARY: Yes. I can bring that section up for you, though, if you need it,
Mr Wieladek. Obviously we rely on the fact it's a section 3(7) agreement and that section 333 talks about when the workplace agreement is made and we have complied with the terms of Workplace Relations Act that all employees have been issued with the information statement for employees and they have all been provided with access to a copy of the proposed agreement, together with the two attachments which are the relevant awards, the Fruit Preservers Award and the Metals Award.

PN25

THE COMMISSIONER: That identifies when the agreement was made. Are you saying that in regard to the union's application, because the agreement is out there, it went out last Tuesday and a vote is to occur next Wednesday, that nothing can occur within the seven day period?

PN26

MS CLEARY: No, that's for you information, Commissioner, so you're aware of that.

PN27

THE COMMISSIONER: It seems to be a bit of a futile exercise at this point. Mr Wieladek, I doubt very much whether, even if - I just wonder what the point would be even if the Commission were to grant the order which - it can't today because the Act hasn't been complied with in terms of notification going out to employees who may wish to make submissions about the orders has not been complied with. That hasn't been put on the noticeboard.

PN28

MR WIELADEK: The union is across that. I was just a little confused at my friend's submission of whether the fact that an employee collective agreement went out, whether that prohibited our application.

PN29

MS CLEARY: I just trying to make sure - - -

PN30

THE COMMISSIONER: That's why I was asking which section were you relying on because you slapped me around the left chop at the same time you slapped Mr Wieladek around the right one.

PN31

MS CLEARY: I'm sorry, Commissioner, I've got accustomed to that lately, haven't I.

PN32

THE COMMISSIONER: I think what we'll do is, we'll set - the ballot occurs Wednesday, you say?

PN33

MS CLEARY: That's right, Commissioner.

PN34

THE COMMISSIONER: What we'll do - the earliest I can do it is 1.30 Thursday, the 27th - is, I'll relist this matter, have a report back, see what the outcome of the ballot is. Send out the notices to comply with the Act anyway. If the ballot goes down, then we'll deal with the application for the order.

PN35

MR WIELADEK: Sir, that would be listing for report back, then hearing - - -

PN36

THE COMMISSIONER: If need be.

PN37

MR WIELADEK: Yes.

PN38

MS CLEARY: When you talk about report back, then you'll proceed into a hearing in the afternoon, Commissioner?

PN39

THE COMMISSIONER: The 1.30 will start as a report back. You'll tell me whether the ballot has got up and if it has got up well then, the application falls. If the ballot hasn't got up, then we'll proceed to the next step in terms of hearing the full argument about whether an order should be granted. It will be 1.30 Thursday, 27 March.

<ADJOURNED UNTIL THURSDAY 27 MARCH 2008 [9.16AM]