BP2008/3164, Transcript of Proceedings [2008] AIRCTrans 326 (2 July 2008)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 18669-1

DEPUTY PRESIDENT MCCARTHY

BP2008/3164

s.451(1) - Application for order for protected action ballot to be held
Association of Professional Engineers, Scientists and Managers, Australia, The
and
Water Corporation Australian Electoral Commission(SECRET BALLOTS)
(BP2008/3164)

PERTH

10.03AM, FRIDAY, 20 JUNE 2008

PN1

MR D MOSS: I appear on behalf of the Association of Professional Engineers, Scientists and Managers and I appear with MS R SINTON.

PN2

MR P MOSS: I appear as agent on behalf of Water Corporation and with me today is MR D GAUCI from the Water Corporation.

PN3

THE DEPUTY PRESIDENT: Thank you. Mr Don Moss, I have read through your application and there are a number of questions I would put to you. I don't require you at this stage, depending on what Mr Paul Moss says for you to make any submissions, so perhaps if you can just respond to a few questions I have of you. Firstly, is there an existing collective agreement that covers these employees?

PN4

MR D MOSS: Yes, sir, but it has expired.

PN5

THE DEPUTY PRESIDENT: The nominal expiry date has passed?

PN6

MR D MOSS: It's 31 March this year.

PN7

THE DEPUTY PRESIDENT: Thank you, and was a copy of the application, this application served on the employer within 24 hours of it having been lodged?

PN8

MR D MOSS: Yes, sir.

PN9

THE DEPUTY PRESIDENT: And also on the AEC?

PN10

MR D MOSS: Yes, sir.

PN11

THE DEPUTY PRESIDENT: In the notice of bargaining period you identify the matters that you intend to bargain over as the matters that are contained in the existing agreement, is that right?

PN12

MR D MOSS: That was an issue of coverage, sir. The real issue and the only issue is the issue of a separate salary scale for engineers and scientists.

PN13

THE DEPUTY PRESIDENT: The reason I ask the question is to be assured that there's nothing in the existing collective agreement or an intention by you to bargain over matters that are prohibited.

PN14

MR D MOSS: No, sir. In fact, one of the applications from the CEO, one of the forms I think made that point.

PN15

THE DEPUTY PRESIDENT: Yes, and you've provided me with details of some of the issues or some of the time lines and events that have taken place during the bargaining, so you're asserting that you have been genuinely trying to reach agreement and are genuinely trying to reach agreement.

PN16

MR D MOSS: Sir, I would mention there is one error. In the chronology involved in the EBA negotiations, paragraph 23 - - -

PN17

THE DEPUTY PRESIDENT: Just a moment, I will locate that. Yes.

PN18

MR D MOSS: It says:

PN19

On 17 April APESMA wrote to Dr Gill -

PN20

et cetera. That should be on 1 May.

PN21

THE DEPUTY PRESIDENT: All right, they were the only questions I had of you, unless there is anything further you want to particularly bring to my attention, Mr Moss.

PN22

MR D MOSS: No, sir. I will wait until Mr Moss, the other Mr Moss, has made his submissions and I will respond to that. Thank you, sir.

PN23

THE DEPUTY PRESIDENT: Thank you. Mr Paul Moss.

PN24

MR P MOSS: Thank you, sir. As far as the application per se, we're not objecting to the application itself. We did have some points that we would like to raise with respect to who is seeking to be included as part of the ballot and also to make some comments with respect to the draft timetable, but earlier on, sir, you mentioned whether or not the pre-reform certified agreement did or did not include any prohibited content. As far as the pre-reform certified agreement is concerned, there are some matters in there which we would say would be prohibited content. In particular, there is a provision with respect to trade union training leave. Having said that, though, the negotiations that APESMA has had with the Water Corp hasn't focused on any prohibited content.

PN25

THE DEPUTY PRESIDENT: You're prepared to accept the declaration by the CEO of APESMA that there is no claims that deal with prohibited content?

PN26

MR P MOSS: Yes, we do accept that, sir.

PN27

THE DEPUTY PRESIDENT: Thank you, so the description that is in the notice of bargaining period, I am safe to take it as a description of existing items exclusive of in the existing agreement excluding any that may be prohibited?

PN28

MR P MOSS: Quite correct, sir.

PN29

THE DEPUTY PRESIDENT: Thank you, so you're concerned about the timetable and those to be included in the ballot?

PN30

MR P MOSS: Some aspects with respect to the timetable, also some aspects and who they are seeking to have balloted as well. If I may digress just slightly, sir, just a little bit of background with respect to the negotiations with this, the agreement which is being replaced is an agreement with six other unions. The negotiations to date have actually been seeking to have a variation of that agreement under schedule 7 of the Workplace Relations Act, the new section 2A, which allows for a variation of a pre-reform agreement by consent from the parties. Those negotiations have progressed, although not with agreement from all the unions as of yet. We have raised this and three of the other unions have also raised this with APESMA that in seeking the application for a ballot - sorry, seeking the secret ballot for industrial action, it is now no longer possible for the parties to progress down the path of seeking to vary the agreement from the certified agreement. As I said, I digress slightly there, sir.

PN31

THE DEPUTY PRESIDENT: There's no influence over the - - -

PN32

MR P MOSS: No, it doesn't affect the application at all. We have been trying to convince APESMA to change its mind as has some of the other unions, but that's to no avail. As far as who the union is seeking to have as far as the ballot is concerned, the bargaining period or the intention to bargain established that the union wanted to cover those employees who they describe as technical professionals, in particular engineers and scientists. It is only engineers and scientists who Water Corp actually employ who would be eligible to be members of APESMA. What we would seek is that the draft orders where it says types of employees to be balloted that those employees who are - - -

PN33

THE DEPUTY PRESIDENT: Just a moment.

PN34

MR P MOSS: Those employees who are performing work as engineers and scientists within Western Australia pursuant to Water Corp Enterprise Agreement 2006, specifically those employees engaged in salary scales up to and including level 8.

PN35

THE DEPUTY PRESIDENT: So you would have those employees who are performing work - - -

PN36

MR P MOSS: So really inserting there as professional engineers and scientists, the rest of that remaining as is.

PN37

THE DEPUTY PRESIDENT: Yes, okay, and are members of APESMA.

PN38

MR P MOSS: Yes.

PN39

THE DEPUTY PRESIDENT: All right, I'll see what Mr Moss has to say about that. The timetable?

PN40

MR P MOSS: The timetable, two issues with respect to the timetable. The first is the ability for Water Corporation to provide the relevant details of those employees who would be covered by the ballot. Water Corp has advised me that the earliest it would be able to provide that information to the Commission would be by close of business on Wednesday, 25 June, that being next Wednesday. Their payroll system is such that in order to get the relevant information, they need to look at the person's job title as well as then cross reference that with the person's job description in order to obtain those employees who will be covered by that and that's not easily interrogated by the system. It would actually require a manual cross check with that. There's also unfortunately the end of year payroll session which is being run out at the same time.

PN41

THE DEPUTY PRESIDENT: Yes.

PN42

MR P MOSS: The second point was as far as postage. A number of the employees in question are located in regional areas of Western Australia. We would say in order to allow the employee to receive the information and to return it, we would probably need to allow a two or three day postage time frame. Having said that, sir, that concludes what we have to say with respect to this application.

PN43

THE DEPUTY PRESIDENT: Mr Don Moss, any reaction to that?

PN44

MR D MOSS: Sir, amending the types of employees to be balloted, inserting the words as professional engineers and scientists, we don't have a problem with the words engineers and scientists. The reason we have some reservation about the word professional is what we say who we cover, industrially cover in the Water Corp EBA is anyone whose position description says this job requires an engineer or professional engineer, tertiary qualified engineer or equivalent and therefore our coverage doesn't - and the word professional engineer to a lot of people means a tertiary qualified engineer and what we say is that it could also go to a person who is a TAFE qualified engineer who has been 20 years doing the job and can do the job and is accepted by the Water Corporation as being equivalent to the tertiary qualified engineer, therefore they are occupying that position as an engineer.

PN45

To avoid confusion, we would like to see the words inserted as just as engineers and scientists, so we avoid that possible confusion over whether a person is tertiary qualified or not. We have a number of para-professionals, if you like, who are recognised as engineers and they are occupying the position of engineers and we say they should be included in the ballot, so with the removal of the word professional, we're quite happy to insert the words as engineer and scientists.

PN46

THE DEPUTY PRESIDENT: Your coverage is not conditional on qualification?

PN47

MR D MOSS: No, it's whatever the employer recognises, not only the qualification or as equivalent.

PN48

THE DEPUTY PRESIDENT: So if someone is performing the work of a professional engineer, it's not necessarily reliant on the qualification, but rather the recognition by the employer that they're performing that work?

PN49

MR D MOSS: Yes, sir.

PN50

THE DEPUTY PRESIDENT: And that's the way it works, is it?

PN51

MR D MOSS: Yes.

PN52

THE DEPUTY PRESIDENT: And your rules, you have constitutional coverage of those persons?

PN53

MR D MOSS: I haven't looked at that, sir, but we have coverage. Our constitutional rules are very, very broad and we cover para-professionals doing the job of engineers.

PN54

THE DEPUTY PRESIDENT: Well, they would. Just on that issue, is there any issue with that, Mr Moss?

PN55

MR P MOSS: No, sir, there isn't.

PN56

THE DEPUTY PRESIDENT: Okay, we will make that - you have no objection to the insertion, though, other than for the deletion of the word professional?

PN57

MR P MOSS: That's correct, sir.

PN58

THE DEPUTY PRESIDENT: That is accommodated, then.

PN59

MR D MOSS: We would also be seeking architects, if they employed architects and we had an architect as a member. The reality is we haven't, so the words engineers and scientists are fine.

PN60

THE DEPUTY PRESIDENT: The other issue is the timetable.

PN61

MR D MOSS: Deputy President, we would be happy to co-operate with the Water Corporation in trying to identify all the engineers and scientists who we say are covered by this. The reason is a lot of positions don't have the title engineer. It might be project manager, it could be asset manager, but when you go to the PD, the position description, it requires an engineer or equivalent and obviously they are our members and they come within our coverage and we say they should be covered, so we would be happy to co-operate with the Water Corporation. If it's going to take a few days, well, it's going to have to take a few days. We would hope that with our co-operation, we could cut that back by a day or two.

PN62

THE DEPUTY PRESIDENT: It just pushes the ballot result out a bit, I think, on both issues and given the history of this, the time that's been requested I don't think is inordinate or shouldn't cause I don't think any consternation by you, unless there's something I am not alert to.

PN63

MR D MOSS: No, sir.

PN64

THE DEPUTY PRESIDENT: What quite often happens, Mr Moss, is that I before issuing the order have the parties and my associate and the Australian Electoral Commission involved in the informal communication to try and ensure that the order I do issue is able to be achieved, the timetables are able to be achieved and people are comfortable with, so I am happy to do that unless you have some vehement objection to that.

PN65

MR D MOSS: No, I don't object to it, sir. I think that's the right way to go. Informally we might have our own consultations with the Water Corp in drawing up the list and that can be finalised with the Australian Electoral Commission and your associate.

PN66

THE DEPUTY PRESIDENT: Yes.

PN67

MR D MOSS: Thank you, sir.

PN68

THE DEPUTY PRESIDENT: What I will do is I will issue an order substantially in the terms sought That order will issue when it's clearer what timetables will be appropriate for the order and I will make the adjustment agreed upon between the parties as to who will be participating in that order. I will issue that order as soon as those informalities have taken place. I will adjourn on that basis.

<ADJOURNED INDEFINITELY [10.20AM]