BP2008/3115, Transcript of Proceedings [2008] AIRCTrans 258 (3 June 2008)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 18524-1

COMMISSIONER WHELAN

BP2008/3115

s.451(1) - Application for order for protected action ballot to be held
Australian Nursing Federation
and
Department of Education and Early Childhood Development
(BP2008/3115)

MELBOURNE

10.03AM, WEDNESDAY, 21 MAY 2008

Hearing continuing

PN1

MR A PRENDERGAST: I appear on behalf of the Australian Nursing Federation.

PN2

MR I HOLLINGWORTH: I appear on behalf of the Department of Education and Early Childhood Development with MS O ACIK.

PN3

THE COMMISSIONER: I've received the application in relation to this matter. I've listed it this morning for mention and programming, the purpose being to expedite the actual hearing of the application. The department haws obviously been served with a copy of the application.

PN4

MR HOLLINGWORTH: That's correct, Commissioner, yes.

PN5

THE COMMISSIONER: Mr Prendergast, what do you want to say at this stage in relation to it?

PN6

MR PRENDERGAST: Commissioner, we were hoping rather that the matter might proceed at the earliest opportunity and we're ready to do that at your convenience.

PN7

THE COMMISSIONER: I do have some questions that I will ask you shortly in relation to the application but at this stage you're ready to proceed with your application.

PN8

MR PRENDERGAST: That's correct. I'm happy to give you any background you require.

PN9

THE COMMISSIONER: Mr Hollingworth, what's the position of the department?

PN10

MR HOLLINGWORTH: If the Commission pleases, Commissioner, it's the ANF's application. We have no particular issue and we'd look to the Commission's directions on this matter.

PN11

THE COMMISSIONER: There's no objection as such to the application.

PN12

MR HOLLINGWORTH: There's no objection to the application.

PN13

THE COMMISSIONER: Mr Prendergast, I'm in a position to list this with all of the requirements for hearing tomorrow afternoon at 3.30. In doing that I have some questions that I need to ask in relation to the application. Firstly, you don't indicate in the application what type of ballot you have a preference for. Are you seeking that this be a secret ballot conducted by the Australian Electoral Commission?

PN14

MR PRENDERGAST: That's correct, Commissioner.

PN15

THE COMMISSIONER: I note that the employees are located in a number of different sites and that some of them are working shiftwork.

PN16

MR PRENDERGAST: Yes.

PN17

THE COMMISSIONER: Do you have any proposal at this stage as to the length of time you believe it would be necessary to have the ballot open?

PN18

MR PRENDERGAST: I have a draft order to that effect.

PN19

THE COMMISSIONER: You do have a draft order, okay, thank you.

PN20

MR PRENDERGAST: If that would be of assistance.

PN21

THE COMMISSIONER: Yes, that would be of assistance.

PN22

MR PRENDERGAST: Commissioner, this was drafted on the assumption that the matter would proceed today, however, the dates can easily be amended to that effect, suggesting in fact that - if I can go to the order itself, the draft order, the voting method is dealt with in item 4. The employer has suggested it might provide the list to the Australian Electoral Commission by tomorrow afternoon, the union the same day under item 6, the timetable for the ballot under item 7, that the roll of voters would close 5 pm on Friday and that the voting would commence the following Wednesday and conclude the following Monday. We're conscious of the provisions in the Act about it's desirable to get it done - - -

PN23

THE COMMISSIONER: Yes, it's desirable to but it's also desirable that everyone have the opportunity to vote.

PN24

MR PRENDERGAST: Absolutely.

PN25

THE COMMISSIONER: There are two things that are desirable, one is that it happen expeditiously but the other is that everyone has the opportunity to know what's going on and to vote.

PN26

MR PRENDERGAST: Indeed, and we're keen to ensure that that is the case. That's a suggested timeline but that was drafted having regard to the matter proceeding today. If it was to proceed tomorrow we - - -

PN27

THE COMMISSIONER: We would bump that out by - yes.

PN28

MR PRENDERGAST: By a day.

PN29

THE COMMISSIONER: The other question that I have for you, Mr Prendergast, is in terms of the question to be put. I don't have any difficulty with the characterisation of a stop work meeting of four hours or more duration and industrial action. I do have some difficulty with the concept of wearing campaign stickers, badges, hats or T-shirts as being industrial action.

PN30

MR PRENDERGAST: That's certainly a question on our mind as well, Commissioner, whether that could be categorised as industrial action but it was something the members were desirous of doing so we included that in the question. It is indeed a moot point as to whether that could be categorised as industrial action.

PN31

THE COMMISSIONER: Yes. I do have a difficulty because obviously if it's protected industrial action under the terms of an order, then conversely it may be unprotected industrial action in other circumstances which I would think I'd have a concern about.

PN32

MR PRENDERGAST: Commissioner, if that was the Commission's view, we'd be happy to delete that part of the question.

PN33

THE COMMISSIONER: Thanks, Mr Prendergast, I think they're the questions that I had for you at this stage certainly. Thank you. Mr Hollingworth, in terms of the capacity of the employer to provide a list of the relevant employees, the order, obviously as proposed, would be affected by the fact that the hearing as such would be tomorrow afternoon in order for the directions to be given that are required to be given. Assuming, and I think that we can assume at this stage, that the hearing occurs tomorrow afternoon and the order is issued tomorrow afternoon, what is the timeframe that you believe you would require to provide the list of employees?

PN34

MR HOLLINGWORTH: Commissioner, probably in terms of the draft order that I've obviously just seen today, so I haven't been able to read it in detail, but in terms of this question of the department providing addresses of relevant employees, you may be aware, Commissioner, we've just recently under machinery of government changes, brought over Early Childhood Development from Department of Human Services so we have some issues in terms of our records. That's the first point. Our experience in other matters that have recently been before the Commission have indicated that the most reliable record in terms of home address relevant to members of the ANF is provided by the union itself. I think if you look to the Teachers matter recently that that is something that occurred there, where was a problem with the ballot. In fact it had to be done again.

PN35

I suppose I'm putting the proposal, Commissioner, today that, given where we don't know who's a member or not of the ANF, and given this is a very small cohort of employees - - -

PN36

THE COMMISSIONER: It is about 200 employees. Is that right?

PN37

MR HOLLINGWORTH: The application indicates that the ANF's membership is 200. That's fine. We would say our overall group is about 230. Given that that's a small group of employees and given that the ANF would have those records as members of the union, we would think in the interests of this proceeding smoothly, that the ANF provide the list to the Electoral Commission. If the Commission pleases.

PN38

THE COMMISSIONER: Yes, there would be certainly issues that the ANF may not be aware of in providing such a list, that is, those who are likely to be absent from work because they're on approved leave, which would be something in the knowledge of the employer but not necessarily in their knowledge and there may be none, but if there are employees who are bound by Australian Workplace Agreements.

PN39

MR HOLLINGWORTH: There won't be any.

PN40

THE COMMISSIONER: There won't be any of those?

PN41

MR HOLLINGWORTH: Won’t be any in our organisation.

PN42

THE COMMISSIONER: That's not an issue but they certainly won't be likely to know those who are absent from work due to approved leave.

PN43

MR HOLLINGWORTH: No, the ANF can't know that. That's correct.

PN44

THE COMMISSIONER: I'll hear what Mr Prendergast has to say about that.
Mr Prendergast.

PN45

MR PRENDERGAST: Commissioner, I suppose the issues that occur to me with respect to the suggestion that we alone provide the list of names, is that it's reliant upon our database being absolutely 100 per cent accurate. The problem with that, that I could perceive, is that it may well be the case that somebody who is a member of ours, currently on our database as employed somewhere else, has now taken a job with DEECD or has just moved there, or indeed, has not altered our records to indicate that they now work with DEECD.

PN46

THE COMMISSIONER: Now work there, yes.

PN47

MR PRENDERGAST: I'm not sure that we would necessarily capture everybody if that was the case. If only the ANF was to - - -

PN48

THE COMMISSIONER: If the difficulty that the department has is being assured that they have current addresses for people, then there shouldn't be a difficulty with the department providing a list of the employees that they believe fall into the category and indicate on that list those who may be absent from work on an approved absence at that point in time, and the union provides the list of members that they believe to be employed there with their address details. I mean, the important thing is that the Australian Electoral Commission gets a list that has the proper addresses. If you're having a postal ballot, that's what you really need. That's going to be the key thing. It's to ensure that everybody who is eligible actually gets to have a vote. I understand the problem that you have is that your list of members may not cover all actual members who are employed there because you may not necessarily have the correct place of employment even though you have the correct address.

PN49

MR PRENDERGAST: That's correct. That's a possibility, certainly. I would have thought that the machinery changes of government that Mr Hollingworth referred to occurred last year. Clearly the department would know, or would be able to ascertain who its employees are because indeed, they've got to pay them so somebody knows who they are.

PN50

THE COMMISSIONER: People are definitely being paid, but people may be being paid into bank accounts and you not necessarily have got their current address. It may be best if the department provides what information it has and the union provide what information it has and if the Electoral Commission has a difficulty in being able to ascertain the compatibility between those two lists, then the Electoral Commission can - - -

PN51

MR PRENDERGAST: Approach the other party.

PN52

THE COMMISSIONER: - - - approach the parties in relation to that, yes. We're quite happy to talk to the Electoral Commission about that and say there may be a difficulty here because we will be liaising with the Electoral Commission in relation to the ballot prior to the orders being issued.

PN53

In that context, we're still talking about the timeframe, I suppose, for actually closing the ballot and it seems to me that - not in terms of closing the ballot but in closing the list of eligible voters - so we might need a little bit more time to do that. That seems to me that might be the case if we need to clarify who's actually an employee of the department and a member of the union eligible to be balloted in this process.

PN54

I'll go back to you again, Mr Hollingworth, and say, in terms of the information that you do have, what sort of a timeframe do you say you would be able to put that information together?

PN55

MR HOLLINGWORTH: Commissioner, I'll just make, in terms of the conversation we've just had, a couple of comments in anticipation and I'm just reflecting perhaps my not good understanding of this process, being my first
time - - -

PN56

THE COMMISSIONER: Everybody has got different ways of doing this so don't assume that my methods are the same as everyone else's, although most members do try and have an initial discussion to sort out any problems before the time starts to tick, as it were.

PN57

MR HOLLINGWORTH: Certainly. In anticipation of communication, if you like, with people affected by this ballot, we've done some work. In terms of Mr Prendergast's comment about the machinery of government changes last year, that's a fair comment but there are practicalities in implementation, including these people not actually coming over to our payroll at some point, so we've done some work in bringing together the cohort in terms of email addresses through their work locations. I don't know, and I'm just throwing that in, whether email is an option here or whether a postal ballot - - -

PN58

THE COMMISSIONER: We have explored it once before with the Australian Electoral Commission and they said that they'd never done it and they did have some concerns about privacy in terms of using email as the method for the ballot, although in theory, they didn't think that it was impossible to do a ballot by email and ballots have been done by email I am aware of.

PN59

MR HOLLINGWORTH: I'm sure I'm not the first to raise it.

PN60

THE COMMISSIONER: No. What you're saying is, you can put together a list of names and email addresses, you're just not sure that you can put together a list of names and postal addresses. Is that the submission you're putting?

PN61

MR HOLLINGWORTH: We anticipate that there'll be a problem there. You'll probably appreciate in the modern world now we rely so much on email, we sometimes forget about postal addresses. Another question, Commissioner. I have in respect to this is in terms of determining the list of employees and if I understood your conversation with Mr Prendergast, was that you anticipate that we provide a list of the employees and then Mr Prendergast advises us which of those employees are to - - -

PN62

THE COMMISSIONER: No, that both lists be provided to the Australian Electoral Commission and then if the Australian Electoral Commission has a difficulty in finalising the list because there's contradictions between the lists that they've got, that they then are in a position to approach the parties and say, "We have a difficulty with some of these, for example, there are people on the union's list that aren't on your list." If there are people on your list that aren't on the union's list, that's easy to deal with. One may assume that they may not be eligible but if the union has names that they believe are employees eligible and they're not on your list, then the Electoral Commission does have a difficulty in sorting it out.

PN63

MR HOLLINGWORTH: My question was in the context, Commissioner, of the department meeting its obligations under privacy legislation, that's all, and I'm not qualified to talk about that.

PN64

THE COMMISSIONER: The information you provide you provide to the Australian Electoral Commission. You don't provide it to the union, you provide it to the Australian Electoral Commission.

PN65

MR HOLLINGWORTH: That was my understanding, yes. Turning back to, I think, the question of the timeframe, if the question being put to us is what time we would need to provide the list of employees with postal addresses, I mean, I would - in anticipation that we can do it and I expect we should be able to, I take
Mr Prendergast's point, they are our employees so I assume we have a record. Whether it's an up-to-date one, that's another question, but I would think we would need at least a week, Commissioner, to deal with that.

PN66

THE COMMISSIONER: A week, okay. Mr Prendergast, do you want to put anything in response to that?

PN67

MR PRENDERGAST: A couple of things, Commissioner. the question of the potential of using email addresses, I think, has some jeopardy attached to it. Firstly, people might be on leave. That's the first issue. The second issue is the nature of the work of the people involved is that they are on the move all the time.

PN68

THE COMMISSIONER: Yes, that's right, so you've got people who are out and about. They're not necessarily in their offices.

PN69

MR PRENDERGAST: That's correct.

PN70

THE COMMISSIONER: You've got one group who are answering phones and they presumably are in an office, but the school nurses are obviously out visiting schools.

PN71

MR PRENDERGAST: Yes, and my understanding is they access that sort of administrative work on maybe a fortnightly basis or something of that nature, so the nature of the work might prevent the use of email addresses as a preferred means of accessing these people, I suggest.

PN72

THE COMMISSIONER: I understand. The email addresses may assist in terms of identifying them as being employees of the department and then you may have postal addresses for people for whom the department has a current email address but not necessarily a current postal address.

PN73

MR PRENDERGAST: I would have thought that somewhere within the department's archives there is somewhere a list of addresses of the people.

PN74

THE COMMISSIONER: There will be addresses. I think the concern was as to whether they were current.

PN75

MR PRENDERGAST: I wouldn't have thought it would take a week to find those particular addresses. Somebody must have them and they must be there. There would also be appropriate personnel sheets so the addresses will be there, I'm sure. Whether they're held in a particular location easily accessible by Mr Hollingworth and his people or within the old department, I don't know, but I'm absolutely certain they would be there. I just think a week is an inordinately long time.

PN76

THE COMMISSIONER: I must say, Mr Hollingworth, it did seem like a long time to me to be able to - because, as you said, we're talking about a group of people who - 200, maybe 230 people. It's not thousands. It's a fairly small group really.

PN77

MR HOLLINGWORTH: I'm probably reflecting, Commissioner, my uncertainty of the task and I'll be honest about that. I think all I could suggest is that - as I say, I've taken advice on this, given the difficult situation we've been in with this changeover so I probably don't have as much information as I wish I had now about what was there. What I could suggest is that obviously we're able to identify the employees. If we're able to identify the employees there must be a database there, that you would hope has a postal address and your second hope would be that it's accurate. If there are gaps there, as I say, Commissioner, we are relying on another department's processes and I'm sure they're impeccable but if we can identify the people maybe what we can provide to the Electoral Commission is the people and the addresses we have and putting it bluntly, if that record is missing, then - - -

PN78

THE COMMISSIONER: We just have to leave it blank.

PN79

MR HOLLINGWORTH: - - - we indicate it's missing. If they are not a member of the ANF, then they're probably not an issue.

PN80

THE COMMISSIONER: If they are a member of the ANF then the ANF should have an address for them that the Electoral Commission can use if that's then provided.

PN81

MR HOLLINGWORTH: Commissioner, say for the sake of the exercise, there's 10 people there, we can go and do some very quick work about identifying where these people are and how we communicate with them.

PN82

THE COMMISSIONER: I'm just thinking that perhaps what we really need is a little bit more time between when the material is to be provided and the roll closes to give the Electoral Commission any time that they need to follow up on these things, rather than the other way around. It might be that if we deal with this and the order is issued tomorrow afternoon, that perhaps if the roll was to close the following Friday, that is the 30th, then the material could be provided to the Electoral Commission by both parties by the 27th, which would then give the Electoral Commission a couple of days to sort of try and iron out any problems that might be in terms of the - and that would give the department three working days to pull these together, basically. Mr Prendergast, does that seem feasible to you?

PN83

MR PRENDERGAST: You're suggesting that, assuming the orders were issued tomorrow, the 22nd - - -

PN84

THE COMMISSIONER: Yes, that the material be provided by the 27th and that the roll close on the 30th. If the materials were provided on the 27th and the Electoral Commission has some difficulty, it gives them a couple of days to then sort that out with the parties so that they have an up-to-date a roll as possible.

PN85

MR PRENDERGAST: Yes, I don't take objection to that. The time then for voting would be?

PN86

THE COMMISSIONER: On your timeframe the ballot would open the following Wednesday, which would be 4 June and close on 9 June.

PN87

MR PRENDERGAST: I suppose the time delay between the roll closing and the ballot opening, on my understanding, is to enable the Electoral Commission to get the ballots to the people.

PN88

THE COMMISSIONER: Yes, out to people.

PN89

MR PRENDERGAST: In which case, yes, I suppose either the Tuesday or the Thursday opening and closing - - -

PN90

THE COMMISSIONER: We can have it open for a week if that's - I mean, I'm just thinking, if you've got people who are out on the road and things like that, a week might be reasonable for them to get their ballot in. If it was to open on 4 June and close on 11 June?

PN91

MR PRENDERGAST: Yes, Commissioner.

PN92

THE COMMISSIONER: Thank you very much for all of that. We'll go off and draft things in preparation for a hearing tomorrow afternoon. We'll be issuing those directions in relation to notifying employees that their matter will be heard and I'll also work on an order for the Commission to issue following the hearing tomorrow afternoon, taking into account the discussions that we've had. Mr Prendergast, in terms of the question, I think I need to know from you before tomorrow afternoon whether you wish to have that second part of the question included or not.

PN93

MR PRENDERGAST: I can answer that now, Commissioner. I'm happy to exclude that part.

PN94

THE COMMISSIONER: Happy to exclude it.

PN95

MR PRENDERGAST: Yes.

PN96

THE COMMISSIONER: We'll list the matter formally for hearing at 3.30 tomorrow afternoon on the basis that it will be a short hearing and the orders will be issued following that hearing. Thank you.

<ADJOURNED UNTIL THURSDAY 22 MAY 2008 [10.30AM]