BP2008/2989, Transcript of Proceedings [2008] AIRCTrans 194 (2 May 2008)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 18404-1

SENIOR DEPUTY PRESIDENT RICHARDS

BP2008/2989

s.451(1) - Application for order for protected action ballot to be held
Association of Professional Engineers, Scientists and Managers, Australia, The
and
Queensland Electricity Transmission Corporation
(BP2008/2989)

BRISBANE

10.02AM, FRIDAY, 18 APRIL 2008

PN1

THE SENIOR DEPUTY PRESIDENT: I have an application under section 415(1)(i) of the Act by APESMA in relation to the Queensland Electricity Corporation, trading as Powerlink. I understand the parties have a copy of what I loosely call my statutory checklist, if you like, my guide to proceedings. Does everyone have a copy of that?

PN2

MR M MOY: Yes, your Honour.

PN3

THE SENIOR DEPUTY PRESIDENT: I just make one amendment to it. I just noticed this morning that - if you could just delete question 5 there as it’s redundant because it’s essentially covered in question 4 which I will slightly modify as we proceed. That said, if we can work through the checklist, would be the most effective way to proceed unless there are any other preliminaries that the parties need to raise just at this point, Mr Henderson?

PN4

MR N HENDERSON: Yes, thank you, your Honour. Perhaps I should just confirm on the record that I communicated to both your Chambers and to Mr Moy yesterday afternoon that we were no longer seeking and attendance ballot. Following our discussions with Powerlink we had agreed that a postal ballot would be appropriate and we have provided your Honour with a list of the appropriate dates for the ballot to be carried as a postal ballot.

PN5

THE SENIOR DEPUTY PRESIDENT: Okay. We’ll - I have that correspondence and we’ll deal with that issue at the appropriate point, and also in relation to some elements of the orders that need just to be customised a little to accommodate some of the postal votes timetable issues. But we’ll deal with all of those in the ordinary course.

PN6

Mr Moy, anything from yourself?

PN7

MR MOY: Thank you, your Honour. I just want to put a couple of matters on record, probably at the latter end of this morning’s proceedings.

PN8

THE SENIOR DEPUTY PRESIDENT: There may be opportunities as we go through. The comments may be comments which I may have heard in other applications and there are points at which they naturally emerge out of the questions. You can put those at that time, if you like.

PN9

MR MOY: Thank you, your Honour.

PN10

THE SENIOR DEPUTY PRESIDENT: Otherwise just indicate to me or flag to me when you want to make that comment if you feel it’s appropriate. But that said, just working through the statutory checklist which, in effect, is no more than my own guide to ensuring that I deal with all the matters that I am required to deal with in the division, and particularly those matters which are matters of discretion including those matters which are of a factual nature and to commence just looking at my first issue, I need to be satisfied that an appropriate person has applied for purposes of section 451(3)(b) of the Act, or 451(3)(a) of the Act. In my view, the organisation of employees initiated the bargaining period, APESMA, is indeed also the organisation of employees who have made the application and the statutory provisions are satisfied in that regard.

PN11

In relation to section 454 of the Act I need to be also satisfied that the application provided the other party, that is, the employer, and the proposed ballot agent with a copy of the application within the 24 hours of lodging the same. Can I ask, Mr Moy, as the employer I can infer from the correspondence I have received from you in the directions conference that we have had that you did indeed receive the application within that timeframe?

PN12

MR MOY: The application was received ......

PN13

THE SENIOR DEPUTY PRESIDENT: Good. Thank you, Mr Moy. And Mr Henderson, the ballot agent was, I presume, provided a copy of the application also within the relevant time period?

PN14

MR HENDERSON: Yes, your Honour.

PN15

THE SENIOR DEPUTY PRESIDENT: Good. Thank you. For the purposes of section 458(1) of the Act I need to be satisfied as to whether or not the ballot hearing order issued by the Commission was received and complied with in respect of the notification of employees for the purposes of section 458(1) of the Act, particularly so in respect of the mandatory requirements of section 457(2)(b) of the Act.

PN16

Mr Moy, can you tell me whether the notice to employees and the notice of listing was posted so as to give the employees a reasonable chance - a reasonable opportunity to make submissions, if they wish?

PN17

MR MOY: Both notices were so placed, your Honour, yes.

PN18

THE SENIOR DEPUTY PRESIDENT: Good. Thank you. I understand also that, if I recall from the directions, it wasn’t simply an issue of posting. I understand that given the class of employees that are prospectively subject to this ballot and prospective collective agreement that they utilise systematically, if I can put it like that, an intranet and the application and the notice to employees was also provided on that intranet?

PN19

MR MOY: That’s correct, your Honour.

PN20

THE SENIOR DEPUTY PRESIDENT: Good. Thank you. Looking at question 4:

PN21

For the purpose of section 453(1) of the Act, was a bargaining period notified and did that notification of that bargaining period include the relevant particulars for the purpose of section 423 and 426 of the Act.

PN22

Looking at - in regard to this matter, I’m satisfied, unless advised otherwise that attachments A and B to the application - sorry. Yes, attachment A and attachment B to the application, provide me with evidence that the bargaining period was notified and that the relevant particulars were attached for the purpose of section 423 and 426 of the Act. Mr Moy, do you contest that matter at all?

PN23

MR MOY: No contest, your Honour.

PN24

THE SENIOR DEPUTY PRESIDENT: Good. Thank you. I can rely on attachments A and Bin that regard. Looking now at question 6:

PN25

For purposes of section 451(2)(a) or (b) of the Act, depending on whether the issue is singular or plural, has the nominal expiry date of the current certified agreement or the current certified agreements passed?

PN26

MR HENDERSON: Your Honour, the nominal expiry date was 4 March 2008. This is a preserved collective agreement and consequently that - under item 14 of schedule 8, that’s the nominal expiry date for the purposes of these proceedings.

PN27

THE SENIOR DEPUTY PRESIDENT: Good, thank you. Mr Moy, is that contested?

PN28

MR MOY: No. No, your Honour.

PN29

THE SENIOR DEPUTY PRESIDENT: Thank you. Was a declaration that prohibited content is not an element of the claims provided? I look in this regard at attachment D of the application and there I find a declaration to the effect that no prohibited content is sought. I don’t discern any either, in effect, to my view, in the claims as attached to the bargaining period notification unless, Mr Moy, there’s anything you wish to take me to that I have omitted to identify.

PN30

MR MOY: There’s no contest on that issue, your Honour.

PN31

THE SENIOR DEPUTY PRESIDENT: Good. Thank you. I need also to be satisfied for the purposes of section 453(5) that the declaration is in an appropriate form and I do so indicate.

PN32

For the purpose of sections 451(1) and (3), I need to be satisfied as to whether or not an appropriate person as defined has made the application as being duly authorised to make the application. I see in this regard that I am provided with a notice of authorisation for an application for a protected action ballot by way of attachment C to the application that’s before me. I need to be satisfied as to appropriate authorisation in this regard. I notice that the authorisation in this regard is given by Mr Michael Butler of APESMA. Mr Henderson, perhaps you can just explain for the record that Mr Butler, who at least my past understanding is was an industrial officer, is a person who is vested under the rules with the relevant authorisation.

PN33

MR HENDERSON: Yes, your Honour. Mr Butler has been elevated twice perhaps since you last saw his name. He is the acting executive director of industrial relations and also now the acting chief executive of the association and has been authorised under both titles by the national board and the national assembly to make these applications.

PN34

THE SENIOR DEPUTY PRESIDENT: Okay. So his titles - I just notice that it might just be helpful for future occasions if attachment C and D perhaps could not utilise his new titles because I don’t think he’s given the title.

PN35

MR HENDERSON: It doesn’t indicate it.

PN36

THE SENIOR DEPUTY PRESIDENT: He’s not given any titles in attachments C and D and that’s the only reason that it arose in my mind as I was uncertain as to his identity.

PN37

MR HENDERSON: He is the acting chief executive at the moment.

PN38

THE SENIOR DEPUTY PRESIDENT: He is the acting chief executive at the moment. He’s also the acting - - -

PN39

MR HENDERSON: Executive director industrial relations.

PN40

THE SENIOR DEPUTY PRESIDENT: Okay. And those acting positions under your rules attract the relevant powers of authorisation and delegation?

PN41

MR HENDERSON: Yes, he has been authorised by a national assembly to pick up all of the statutory authorisations required.

PN42

THE SENIOR DEPUTY PRESIDENT: Good. Thank you. Did the - looking at question 10, I need to be satisfied for the purpose of section 452(1)(b) and (c) as to whether or not the application made by APESMA that is before me detailed the types of employees to be balloted and otherwise conforms with the rules of the Commission. Page 3 of the application indicates the types of employees to be balloted. I notice however in page 3 that there is a reference in page 3 of the application to Australian workplace agreements and you’ll see approximately half way down page 3 of the application under the heading, “Types of Employees to be Balloted” in about the second clause, second sentence it reads:

PN43

Where relevant an employee who is bound by an Australian workplace agreement -

PN44

As a consequence of the transitional Act, that is now referenced to an individual transitional employment agreement.

PN45

MR HENDERSON: Yes, your Honour, perhaps I could seek leave to amend that.

PN46

THE SENIOR DEPUTY PRESIDENT: Yes, that’s fine. Mr Moy, you don’t contest that matter is to be amended?

PN47

MR MOY: I don’t, your Honour, other than to say that there may be people who are on - would they be pre-transition Australian workplace agreements?

PN48

THE SENIOR DEPUTY PRESIDENT: No. I’ll come to this - this matter arises shortly because of the impact of the Workplace Relations Amendment (Transition to Forward with Fairness) Act 2008. I will explain - - -

PN49

MR MOY: No contest.

PN50

THE SENIOR DEPUTY PRESIDENT: We’ll come to it and we’ll work through just some of the transitional amendments shortly and how it affects the application and future applications as well and identification of the various matters for purposes of the compilation of the role as well; but all in due course.

PN51

But let’s just move on for the current purposes to question 11. Did the application for the purpose of section 452(1)(a) - did the application include the question to be put, that is in relation to the nature of the proposed industrial action. Well, the questions certainly do - have been provided. There is one issue, and I have raised this in the past in relation to - sorry.

PN52

There’s a formatting issue in relation to the questions that - you would have noticed or perhaps identified in the draft orders that I sent out that my previous dealings with the AEC have indicated a desire to compact the questions where possible in a slightly amended format to reduce the amount of paper required to be utilised in a vote by ballot or attendance and it just simply means reconstructing the questions so that any repetition at the start of the questions is placed as a subheading and or the questions follows thereafter. You can see that in the draft orders that are before you. If you have any difficulties with that approach, which is the approach desired by the AEC, we can discuss that off the record as to the structure or format of the draft orders shortly.

PN53

There is just one issue that I have raised in previous applications as well. Where a ban is proposed - let’s take, for example, question 3, but it also arises in question 4 and question 5, perhaps thereafter. Where the ban is proposed would the applicant have any difficulty if we inserted into those questions that the bans were of variable duration?

PN54

MR HENDERSON: No, your Honour.

PN55

THE SENIOR DEPUTY PRESIDENT: The point being to ensure the employees have a clear indication that the nature of the proposed industrial action proposes bans that may be of short duration but equally so may be of long duration, so they can attest to the economic circumstances that their balloting in relation to. Is that all right?

PN56

MR HENDERSON: Yes, thanks, your Honour.

PN57

THE SENIOR DEPUTY PRESIDENT: I’ll insert that slight amendment into those questions. Mr Moy, do you have anything to say in relation to those questions at all - the nature of the proposed industrial action?

PN58

MR MOY: Your Honour, other than just on that point which you raised, just about the duration of the industrial action, I just wanted to put on record that my client will be seeking - if and when a notice of industrial action occurs as a result of a successful ballot if that occur, a notice of industrial action which is quite detailed as to the duration of any intended bans so that it can make some reasonable accommodation itself. I’m sure that may have been what APESMA were thinking of doing anyway with the notices of intended industrial action but I just wanted to put that matter on record.

PN59

THE SENIOR DEPUTY PRESIDENT: Okay. That’s not relevant for the purposes of the application but you’re really just taking the opportunity to let Mr Henderson know that that would be your expectation, is it?

PN60

MR MOY: Correct, your Honour.

PN61

THE SENIOR DEPUTY PRESIDENT: Okay. Let’s move on to question 12: for the purpose of section 461 of the Act there are, in effect, three elements of the application about which I need to be satisfied. The first two of those are related. I need to be satisfied that during the bargaining period, that is, from its commencement onwards, the applicant has genuinely tried to reach agreement with the employer of the relevant employees. I also need to be satisfied that the applicant is continuing, in effect, to genuinely try to reach agreement with the employer in respect of the relevant employees. That is for the purpose of section 461(a) and section 461(b) of the Act.

PN62

Mr Henderson, could you just tell me again, what date did the bargaining period commence?

PN63

MR HENDERSON: The bargaining period commenced on 1 April 2008, your Honour. Discussions were taking place between the negotiating parties and other organisations which have already been before the Commission, from 2007 really. But in some quite significant detail from 10 December until April there were some 15 meetings between the parties at which the APESMA was represented by an employee of Powerlink who is a representative and also by an organiser of APESMA, Ms Wegner, who is here in the Commission, and most recently by myself.

PN64

Your Honour, there was a substantial list of matters to be negotiated between the parties and that list comprehended the matters raised by both the APESMA and the other unions who are negotiating but also included a number of specific - or matters which were specific to the APESMA, namely issues connected with overtime, career paths for employees in the PM - classifications of PM3 and PM4.

PN65

THE SENIOR DEPUTY PRESIDENT: Are these discussions and negotiations that have taken place after 1 April 2008?

PN66

MR HENDERSON: Yes, they have, your Honour.

PN67

THE SENIOR DEPUTY PRESIDENT: What was the most recent discussion negotiation that you had?

PN68

MR HENDERSON: Most recently, your Honour, the parties met on 21 April, 14 April and 7 April.

PN69

THE SENIOR DEPUTY PRESIDENT: Sorry, you propose to meet on 21 April.

PN70

MR HENDERSON: Yes, we haven’t had the 21st, yes.

PN71

THE SENIOR DEPUTY PRESIDENT: That’s all right.

PN72

MR HENDERSON: 7th and the 14th.

PN73

THE SENIOR DEPUTY PRESIDENT: That’s helpful for me to know because if that’s a designated further negotiation date that helps me to be satisfied that you’re continuing to genuinely - that APESMA is continuing to try to reach agreement.

PN74

MR HENDERSON: Yes, your Honour.

PN75

THE SENIOR DEPUTY PRESIDENT: So it is evidence of that. Can I ask, Mr Moy, is there any contest that section 461 - the requirements of section 461(a) and section 461(b) of the Act have not been met on the basis of the claims made by Mr Henderson?

PN76

MR MOY: For the purposes of this application, your Honour, no, there is no contest on that issue.

PN77

THE SENIOR DEPUTY PRESIDENT: Is this an appropriate time for you to make your ..... statement?

PN78

MR MOY: It may be, your Honour. Thank you. My client simply wanted to put on record that for the purposes of taking a ballot of its employees it did not wish to contest that any of the matters in the application - but it did need to put on record that its position in relation to the secret ballot is, without in any way limiting its rights to challenge any industrial action on the basis of compliance by the union with the requirements of the Act, including the genuinely trying to reach agreement point.

PN79

THE SENIOR DEPUTY PRESIDENT: Similarly so, I have nothing before me that contests that gives me any reason to think the applicant is engaged in pattern bargaining. Do you bring any evidence of that?

PN80

MR MOY: There is no evidence being provided by Powerlink in this application, your Honour.

PN81

THE SENIOR DEPUTY PRESIDENT: Well, for my purposes then, section 461 of the Act satisfies in all three respects. Looking at my question 13: for purposes of section 461(2)(a) of the Act, is there any reason the Commission should exercise its discretion to refuse the application on grounds that the granting of the application be consistent with the object of this division’s 449 of the Act or there is no evidence before me. Mr Moy, do you propose to bring any evidence?

PN82

MR MOY: No, your Honour.

PN83

THE SENIOR DEPUTY PRESIDENT: There is nothing before me that would cause me to exercise my discretion adversely in relation to the application in that regard.

PN84

I am also provided with the discretion to refuse the application if there has been any conduct or contravention of any orders made under the Act. Well, there have been - apart from the hearing order which has been complied with, there have been no other orders and there is nothing before me that would suggest that there has been any contravention of any orders of the Commission so I don’t wish to - in relation to this application and I see no need to consider whether or not I should exercise my discretion because there is no evidence that I should.

PN85

Looking at question 14: does the ..... need to be satisfied with section 452(2) of the Act that the application identifies a person by name as the nominated ballot agent. The AEC is the nominated ballot agent. In any event, however, the nomination of the ballot agent is a matter that is preserved for the Commission to nominate and I’ll deal with that shortly.

PN86

For the purposes of section 463(5) of the Act, are there any exceptional circumstances that would satisfy the Commission that it should extend the period of written notice of industrial action as required under section 441(2)(b) of the Act from the conventional or statutorily prescribed three days to the exceptional seven day extension provided for? Is there any case in that regard?

PN87

MR HENDERSON: Your Honour, I think all I would say is this: that in terms of stoppages of work, given the nature of the industry this is probably a relevant question - in terms of the stoppages of work the maximum duration that has been sought to be authorised is 24 hours. In my submission, the intent of that provision of the Act would probably be more relevant if there had been approval sought for a stoppage of indefinite duration in this particular industry so, in our submission, given that the stoppages are limited to 24 hours the three days remains an appropriate period of notice - three working days remains an appropriate period of notice.

PN88

THE SENIOR DEPUTY PRESIDENT: So your intended or your prospective - the prospective nature of your proposed industrial action does not extend to any wide scale shutdown or large scale effect of the capacity of the employer and therefore doesn’t warrant any extended notice period?

PN89

MR HENDERSON: In our submission, limiting the stoppages to 24 hours means that it’s highly unlikely that any stoppage would have any impact of the sort that your Honour just described.

PN90

THE SENIOR DEPUTY PRESIDENT: Mr Moy, is there any - - -

PN91

MR MOY: Your Honour, Powerlink doesn’t seek an extension of the time period, no.

PN92

THE SENIOR DEPUTY PRESIDENT: Good. Thank you. Question 16: given this is an application of the kind described in section 467(1)(a) of the Act, for the purposes of section 467(2) of the Act, can the parties confirm the draft orders give effect to the requirement that no person will be included in the roll of eligible voters who is bound by an ITEA, that is an individual transitional employment agreement, whose nominal expiry date is not passed.

PN93

This is probably the appropriate time to just divert briefly to - and this is just to assist in future applications as well. The Act has been amended by way of the Workplace Relations Amendment (Transition to Forward with Fairness) Act 2008. The effect of the amending Act is in several guards in relation to section 451, and I’ll just work through those just very briefly, and they affect the compilation of the roll of voters slightly as it does also the nature of the application.

PN94

The first amendment that is made is at section 450 of the Act in the definition of “relevant employee”. What has happened in that regard is that the Act as requires the omission of the reference to AWA and its substitution with the reference to ITEA. So the definition of relevant employee therefore now incorporates only the reference to an individual transitional employment agreement, and no longer to an AWA.

PN95

Subsequently, and this is what is important in registered to the provision we are currently looking at - for the purposes of section 467(1)(a)(iii) and 467(b)(ii), if you’re looking at that you will notice that there is a change here in that after the word “will”, in looking at section 467(1)(a)(iii), there is the insertion of the words:

PN96

- or would but for the operation of an ITEA that has passed its nominal expiry date.

PN97

Now, the effect of this is important because it modifies the compilation of the roll of voters and who’s on it and who’s not on it and it has the effect of making clear at least - making expressly clear that those employees who are employed on individual transitional employment agreements, whose nominal expiry date has passed or expired, may be subject to the ballot.

PN98

Section 467(2) which follows specifics that:

PN99

A person is not eligible to be on the roll of voters if that person is bound by -

PN100

It used to be an AWA but it’s now, because of the amendment:

PN101

- an ITEA whose nominal expiry date has not passed.

PN102

So if you’re on an ITEA and the nominal expiry date has not passed, you’re not allowed to be balloted but if you’re on an ITEA whose nominal expiry date has passed, you are permitted to be balloted. That appears to be the statutory amendments affecting Part XI, Division 4, and it’s important that the parties just understand that that change has taken place to the extent that it will affect in the pool of employees who has now bought into a ballot. And there is some difference to the pre-amending provisions. Does that assist the parties understand how that operates?

PN103

MR MOY: Thank you, your Honour.

PN104

THE SENIOR DEPUTY PRESIDENT: And it therefore also affects the reference in the compilation of ballot orders. There are no longer any references to AWAs. There are references only to ITEAs. It affects applications as well and it affects that pool of employees who go on to the - who can prospectively be balloted. Mr Henderson?

PN105

MR HENDERSON: Yes, I think - yes, I agree with your Honour’s interpretation of the legislation to the extent that the application needs it then we simply seek leave to remove any reference to AWA and insert the reference to an ITEA.

PN106

THE SENIOR DEPUTY PRESIDENT: Okay. And just for the purpose if you want some further assistance in this regard, I’m just looking at the explanatory memorandum and the relevant amendment for purposes of what we’re currently dealing with is sections 467(1)(a)(iii) and 467(1)(b)(ii) but for our purposes it’s just (1)(a)(iii). That’s amendment item number 103. If you go to the explanatory memorandum and look at item 103 it refers to those particular paragraphs that are amended and it says at paragraph 192:

PN107

This item would allow an employee on an ITEA that has passed its nominal expiry date to be included on the roll of voters for secret ballots on proposed industrial action in relation to a collective agreement.

PN108

For the purpose of completion, that’s what the explanatory memorandum states.

PN109

Those amendments will be or have been made in the draft orders from what has been received.

PN110

Now, looking at question 17: for the purpose of section 463(2) of the Act, does the applicant organisation seek a personal ballot? This brings us to Mr Henderson’s opening remarks: the original request was for an attendance ballot. That has subsequently been amended. I accept the amendment to the agreement. That follows discussions we have had through directions conferences and the request now is for an amended application seeking a postal ballot.

PN111

As a consequence now that the APESMA is seeking a postal ballot, question 18 is no longer relevant because there’s no requirement for me to look at whether an attendance ballot is more expeditious or efficient.

PN112

That said, that disposes of all of the statutory provisions that I need to deal with. Unless there’s something that parties want to bring to my attention we might just turn to the orders. Mr Moy, anything more you want - - -

PN113

MR MOY: Your Honour, I just wanted to put one more matter on record, if I could.

PN114

THE SENIOR DEPUTY PRESIDENT: Yes.

PN115

MR MOY: Just in case this occurred, which may be unlikely to as a result of any industrial action from this application, but I wanted to put on record that Powerlink wanted to fully reserve its rights in relation to any industrial action - to challenge any industrial action which had in any way jeopardised the supply of electricity to the community. I just wanted to place that on record that it would reserves its rights to challenge that industrial action if that occurred.

PN116

THE SENIOR DEPUTY PRESIDENT: Good. Thank you, Mr Moy. Mr Henderson, anything from you before we go off the record to settle orders?

PN117

MR HENDERSON: No, thank you, your Honour.

PN118

THE SENIOR DEPUTY PRESIDENT: Good. Thank you. We’re adjourned and we’ll now settle orders.

<ADJOURNED ACCORDINGLY [10.33AM]