BP2008/3092, Transcript of Proceedings [2008] AIRCTrans 239 (26 May 2008)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 18489-1

COMMISSIONER EAMES

BP2008/3092

s.451(1) - Application for order for protected action ballot to be held
The Australian Workers’ Union
and
SDS Beverages Pty Ltd
(BP2008/3092)

MELBOURNE

9.58AM, WEDNESDAY, 14 MAY 2008

PN1

MR C WINTER: I appear on behalf of the Australian Workers Union and its members employed by SDS Beverages with MR P REILLY.

PN2

MR A DALTON: I'm from the Australian Industry Group representing SDS Beverages.

PN3

THE COMMISSIONER: Yes, Mr Winter.

PN4

MR WINTER: Commissioner, this is an application made under section 451 of the Workplace Relations Act where the AWU seeks an order from the Commission that will authorise a protected action ballot to be held. Section 451(3) of the Act allows for an organisation of employees to apply for an order if a bargaining period has been initiated. In this case, Commissioner, as you'll see from our material provided, we instigated a bargaining period late last year and that has occurred. The current certified agreement between the parties has passed its nominal expiry date, again from late last year, and since that time there's been a number of meetings held between the organiser concerned, based in Mildura, and the company.

PN5

On this site there's approximately 37 employees who would be covered by the protected action ballot. Since the bargaining period has been initiated there was a meeting on 14 November '07, there was a meeting of 6/12/07, 12/12/07, 20/2/08, 3/4/08, 17/4/08 and one as late as 2 May '08. The company prepared a draft agreement which they then circulated to the employees in an attempt to resolve the issues. We didn't have a lot of input into that draft and that draft was rejected at a mass meeting of the employees.

PN6

As you can see, the union has been bargaining clearly in good faith in relation to the matter. There's a significant time lapse between the expiry of the old agreement and this application so the organiser concerned has made every attempt to try and resolve the agreement, even to the point where the company prepared a document, put it to its employees and that was rejected by its employees.

PN7

Commissioner, in accordance with section 461 of the Act, the Commission must be satisfied in regard to a number of matters. They include that the parties have genuinely tried to reach agreement. We would argue clearly, by the number of meetings we've had, the mass meeting that rejected the company's offer, that that has occurred, and that the applicant has not engaged in pattern bargaining. There's no evidence of pattern bargaining. We haven't tried to flow anything on from another site or anything like that.

PN8

Commissioner, we would seek that the Australian Electoral Commission act as the authorised ballot agent in this matter. I understand a timetable has been produced and that the Australian Electoral Commission did contact me yesterday asking exactly where the site was located, the approximate number of employees that would be balloted and I have informed them that 37 employees would be balloted. I understand that you've issued an order that a notice be placed on the noticeboard onsite and that has thus occurred. I spoke to the organiser this morning and during the process she indicated to me that she would continue trying to reach agreement with the company, even whilst the ballot was going ahead.

PN9

Unless you have any further questions, Commissioner, I might hand over to Mr Dalton to see if he's going to support or oppose the application.

PN10

THE COMMISSIONER: Mr Dalton.

PN11

MR DALTON: Commissioner, in terms of this particular matter, there are a number of concerns that the company has on the instructions, and that I should at the initial stage apologise for the company not being able to attend the hearing. I received a copy of a letter via email that the company had advised that they'd sent the Commission advising them that I was representing in this matter and apologising for not being able to attend. I understand that you may not have received that. Unfortunately I haven't got a copy - - -

PN12

THE COMMISSIONER: I haven't got anything on the file, Mr Dalton.

PN13

MR DALTON: Unfortunately, I didn't bring a copy of that but I can email that to your office.

PN14

In terms of this particular matter, Commissioner, we think that there are a number of issues that may require a more substantial hearing of this matter. I note from the union's submissions, given that I've raised with them already this morning that I believe there are problems with the document, they're now distancing themselves from that document. My understanding is that that document has been prepared in conjunction with the organiser up there - - -

PN15

THE COMMISSIONER: Which document are we talking about?

PN16

MR DALTON: We're talking about a draft agreement document. That's this document that's being prepared. The company advises me that that document is been prepared in conjunction with the union organiser and it was at this stage, while not - they don't have agreement. That document has not been, as I say, prepared by the company but prepared in conjunction with the union and it's my view that it's not a document which could form the basis of an agreement because it does contain matters that could be considered prohibited content so there's an issue around the document.

PN17

There's also another issue regarding genuinely trying to reach agreement in regard to the actions of the organiser. I know my colleague has emphasised the actions of the organiser in making every effort in an attempt to resolve this issue. I would have to raise objections to that because my understanding is that since this application has gone in, the company has tried to contact Ms Knight, who is the organiser up there, several times and left messages and the organiser has not made further contact back to the company.

PN18

There was a meeting scheduled for 11 am on 12 May. This was scheduled prior to the secret ballot application being lodged and the union organiser did not attend that meeting and didn't advise that she wasn't going to attend that meeting, so it would appear that the actions of the organiser, once the secret ballot application has come to the Commission, has decided to go to ground rather than make every attempt to try and resolve this particular matter.

PN19

From my discussions with the company and their instructions to me, is that they believe they are not actually very far apart on this matter. There had been numerous meetings, there had been quite a deal of discussion back and forth and they've made significant progress on the agreement. The union at the last meeting appears to have rejected the company's offer and come back with a higher offer in terms of what they were prepared to accept prior to the company's offer, so there's a bit of see-sawing going on.

PN20

THE COMMISSIONER: That's not unusual in terms of negotiations, I wouldn't have thought.

PN21

MR DALTON: No, I'm suggesting that in itself is a factor that's fatal to these particular applications but I would suggest that the company advises me that they believe that if they could actually sit down and have a couple more genuine meetings with the organiser that they think they could get this matter fairly close.

PN22

Actually, in terms of where we are at this point in time, we do believe that there are a number of issues that could scuttle this application in terms of the genuine bargaining issue and they would require a more substantial hearing, but we would actually prefer at this time that the actions of the Commission would be that we would place the notices on the board that are required to be placed, that the matter be adjourned for a little over a week because Mr Gobbo is not available for the rest of this week, but an opportunity for another couple of meetings to take place and I think there's a good chance this thing may actually go away. I would leave it there at this point, Commissioner, and see what the union has to say in response.

PN23

THE COMMISSIONER: All right.

PN24

MR WINTER: Maybe I can comment on a number of points, Commissioner, (1) the notices are on the board. The employees are aware that they could have - if they thought that they wanted to appear in this matter, they could have notified your associate or you directly, they could have turned up here today. Clearly, the company is aware of the matter because they've instructed Mr Dalton in relation to the matter. The company has placed the notices on the noticeboard so everyone is aware of today's hearing and today's hearing is the appropriate time to deal with any of these matters.

PN25

The draft agreement that was prepared was prepared by the company. Whether it contains prohibited content or whatever, it was rejected, so it's clearly not being pursued by the members. We understand what's prohibited and what's not. We're not seeking to obtain an agreement that contains prohibited content. The bargaining period that we put together does not contain prohibited content and Mr Dalton hasn't disputed that there's been seven meetings since the agreement expired on 14 November. It's not as if the agreement expired say two weeks ago and we're trying to rush this through. Clearly, the agreement expired, clearly, even Mr Dalton in his own submissions admitted that an offer was put to the employees formally by the company and rejected. They may be close but there's nothing within the legislation that says we can't take protected action even if we're close.

PN26

What I think might be the appropriate way of dealing with the matter is, the organiser has indicated to me that she's prepared to meet during the process and it's a lengthy process. For instance, the declaration of the ballot in accordance with the AEC's timetable is not until 30 May so nothing can start, in fact, until June anyway because if it was successful we'd have to put in additional notices, et cetera. My suggestion would be, allow the ballot to go ahead, (1) if the employees think they're close and they don't want to take industrial action, they'll reject the ballot anyway so nothing will occur. Whilst the ballot is going ahead, we're prepared to give a commitment that we will meet with the company to try and continue the resolution of it.

PN27

If you feel fit, Commissioner, you could even issue a recommendation that the parties meet and confer to try and reach resolution whilst the process is going. Further delays in the matter I think would be unfair. There's provisions within the Act that state when the ballot has to be brought on for hearing and it's accepted from the legislation that it has to be done in a speedy manner.

PN28

We've done everything to try and get this process finished. The agreement has expired last year. It's now getting close to the middle of the year. Six months has now transpired since the agreement expired. There would be no disadvantage whatsoever to the company if you issued an order that the ballot go ahead and then let the parties continue to confer whilst that ballot is going ahead. If the Commission pleases.

PN29

THE COMMISSIONER: Mr Dalton, have you got anything further to put?

PN30

MR DALTON: I don't wish to sort of cavil with my colleague's submissions but in terms of this particular matter I do think there is significant disadvantage in terms of my particular client and the union has timed this particular action to coincide - - -

PN31

THE COMMISSIONER: What's the disadvantage?

PN32

MR DALTON: My understanding is, and I don't know this company well at all, I've not dealt with them before I spoke to them yesterday - - -

PN33

THE COMMISSIONER: Then they probably should be here in those circumstances but anyway, what's the objection?

PN34

MR DALTON: The issue was that they're coming up to harvest time. They produce carrot juice extracts, I believe, and they believe that this could cause them significant problems in supplying their customers so in terms of that they do believe that there is a significant disadvantage in the timing of this particular matter.

PN35

I also note that Ms Knight is not here today as well and given that I've got issues in terms of her particular actions, I think that it would be appropriate that she have an opportunity to answer those particular issues because, as I say, I've made assertions here from the bar table. It's easy enough to make assertions from either side so in terms of that, my view is that the company and the organiser should have an opportunity to answer those particular issues.

PN36

We are not of the view that the union has done everything to try and resolve this particular matter. There have been a number of meetings and the company and the union have had strong positions on things but I think this matter is premature at this point in time. If the Commission pleases.

PN37

THE COMMISSIONER: Anything further, Mr Winter?

PN38

MR WINTER: No, Commissioner.

PN39

THE COMMISSIONER: In relation to applications that are made pursuant to section 451 of the Act, the Act is clear that applications should not be granted unless certain conditions are met. The Commission has to be satisfied that during the bargaining period the applicant genuinely tried to reach agreement with the employer of the relevant employees.

PN40

On the basis of the submissions that have been put by Mr Winter, it would appear that there have been at least seven conferences between the parties trying to get to a point where a replacement enterprise agreement might be put in place following the expiration of the previous agreement. That seems to me to be an indicator of a genuine attempt to try and get such an agreement.

PN41

The fact that an agreement has not been reached or that a proposed EBA has been rejected does not cut across that requirement. I'm satisfied in this case, again based on the submissions of Mr Winter, that this is a one-off set of negotiations and is not part of pattern bargaining. They're the criteria that need to be met. There is a bargaining period in place and has been since late last year.

PN42

On my examination of the material that's attached to the Commission's file, all the necessary requirements in relation to applications such as this have been met. In those circumstances I think it is appropriate to agree with the application that's been made by the AWU and issue an order in the terms sought by the union. There is nothing to stop negotiations going ahead and in fact I would encourage those negotiations to go ahead and if at the end of the day a resolution was made, particularly before the ballot was to open, and I see in the schedule that's been prepared that 21 May is the scheduled date for the ballot. The ballot won't close until 29 May and so any potential industrial action is not likely to occur and I would trust will not occur between now and that date.

PN43

In all of the circumstances I'm satisfied that the criteria has been met under the Act. All of the proper forms have been filed with the Commission and I propose to issue an order in the terms sought by the union and with the timetable that is attached to the file which has been prepared with the assistance of the Australian Electoral Commission.

PN44

Unless there is anything further, I will adjourn on that basis.

<ADJOURNED INDEFINITELY [10.16AM]