BP2008/3218, Transcript of Proceedings [2008] AIRCTrans 471 (28 August 2008)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 18973-1

COMMISSIONER WILLIAMS

BP2008/3218

s.451(1) - Application for order for protected action ballot to be held
National Union of Workers
and
Metso Minerals (Australia) Limited
(BP2008/3218)

PERTH

9.28AM, MONDAY, 18 AUGUST 2008

PN1

MR T POPE: I appear on behalf of the National Union of Workers.

PN2

MR D LANGRIDGE: I appear on behalf of Metso Minerals (Australia) Limited.

PN3

THE COMMISSIONER: Yes, Mr Pope, if you can take me through the application please.

PN4

MR POPE: Yes, thank you, sir. This is an application for an order for a protected action ballot to be held pursuant to section 451 of the Act. Division 4 of Part IX of the Act requires an order from the Commission for a protected action ballot and then a protected action ballot to authorise the industrial action.

PN5

The Act has a fairly elaborate procedure which we believe we have been through. Pursuant to section 451 paragraph 1, the National Union of Workers is a registered organisation of employees. At paragraph 2, there is an existing collective agreement applied to employees on the site, and entitled Metso Minerals Wear Protection Agreement 2005. That agreement is numbered AG20052369; the expiry date of that agreement is 31 May 2008.

PN6

Section 452 of the Act specifies the contents of the application that need to be made to the Commission. This application includes at sub-clause 1A the question of the ballot to be put to the employees, including the nature of the action. At 1B, details of the type of employee to be balloted. At 1C, the application is to be made on the correct form and it has been done so.

PN7

Section 452 requires certain material to accompany the application. That is a copy of the relevant bargaining period notice, which has been supplied; included particulars required by section 426 of the Act, and they have been supplied. There is appended a copy of the notice that the proposed collective agreement does not include any prohibited content, and the declaration is in the form prescribed by regulation.

PN8

The application is accompanied by a declaration that the application has been authorised by the committee of management. In terms of the notice of application itself, the application was served by receipted fax and it was sent to Metso Minerals (Australia) Limited at their West Perth office, which is where they requested it. That action was carried out within 24 hours of lodgement of the application at the Commission.

PN9

In terms of section 461, the applicant has met with the company on at least six occasions and two of those occasions have been during the period of the bargaining notice which accompanies this application. The applicant is genuinely trying to reach agreement and in that respect has modified its initial claims and dropped matters such as extra super, chemical allowance, attendance bonus and compaction of classifications. They have all been dropped from the applicant’s claim so we say we genuinely tried to reach agreement. The applicant is not engaged in pattern bargaining.

PN10

So we say, sir, that for our initial submission we believe the requirements of the Act have been met and the affidavits support what is required by the Act, and we would request there should be an order for a protected action ballot for the question of industrial action to be put to the relevant employees, and voted upon by them.

PN11

We would also request if possible that the ballot be conducted on site. I’m not sure whether the Commission can be involved in that matter, but the employees out there would prefer the ballot to be conducted on site if possible, sir.

PN12

THE COMMISSIONER: Whilst I appreciate the employees’ preference, the Act has a default, if you like, for a postal ballot unless I’m satisfied that an attendance ballot is more efficient or more expeditious. Is there anything that you want to put to me along those lines?

PN13

MR POPE: Yes, sir. There are 48 employees and they appear at the site in one group and it would be very expeditious, and I believe it would be easy for the ballot to be actually carried out if it could be done on site. That would also demonstrate to the employees that the matter was being carried out in a fair manner and that they could collectively vote. So appearances of fairness and an expedient method of carrying out the vote in the premises would be what we would submit, sir.

PN14

THE COMMISSIONER: Very well. Thank you Mr Pope.

PN15

MR POPE: Thank you, sir.

PN16

THE COMMISSIONER: Mr Langridge.

PN17

MR LANGRIDGE: Thank you, sir. At this stage the company does not go against the application. At this stage we are happy to support it; however we would like to propose that the ballot does get done by postal vote. We feel that with the 48 employees it might be time-consuming on the site, and also affect production as well as there are different shifts and not all employees work on the same days as well.

PN18

THE COMMISSIONER: Anything else Mr Langridge?

PN19

MR LANGRIDGE: No, that’s all, sir.

PN20

THE COMMISSIONER: Thank you.

PN21

Anything you need to respond to there, Mr Pope?

PN22

MR POPE: Given that I represent basically the employees on the site, if this matter could be carried out during the lunch hour, I believe that would be acceptable to the employees on the site, sir. There would not be any lost production, but I could check with the employees to see if they would be prepared to stay back after work to carry out that ballot. But I would need to get instructions from the employees and get back to the Commission this afternoon, or perhaps within an hour or so, if the Commission could bear with me on that matter. If the Commission feels it would be more appropriate to deal with the matter at this time, then a postal ballot would be acceptable to the union.

PN23

THE COMMISSIONER: Okay, thank you, Mr Pope.

PN24

MR POPE: Thank you, sir.

PN25

THE COMMISSIONER: All right. I can indicate to the parties that it is my view that we need to deal with the matter at this time. In terms of whether the ballot should be a postal ballot or an attendance ballot, whilst I understand the interests of the employees and how they may have a preference, unfortunately the Act does not turn its mind to that issue. It is simply a question of I need to be persuaded that an alternative to a postal ballot is more efficient and more expedient. On what I’ve been told this morning I’m not satisfied that that is the case.

PN26

As always with these issues, attendance ballots have one fundamental difficulty, and that is that not necessarily all employees are in attendance on that particular day; whether for reasons of sickness, Workers Compensation absence or annual leave or the like.

PN27

However, having said that, I am required under section 457(2) to be satisfied that the applicant has complied with section 454, and that the persons referred to in section 458(1) and (2) have had a reasonable opportunity to make submissions on this application. I am satisfied on those points as put by Mr Pope.

PN28

Having considered the submissions by Mr Pope, I am satisfied that the applicant is also, during the bargaining period, genuinely trying to reach agreement with the respondent and that the applicant is genuinely trying to reach agreement with the respondent as we sit here today. Further, as Mr Pope has assured me, that the applicant is not engaged in pattern bargaining, and I’ve no reason to believe otherwise.

PN29

In addition, I’m satisfied that the granting of this application would not be inconsistent with the objects of the division in section 449, and there is nothing to suggest that the applicant or a relevant employee has contravened any of the provisions mentioned in section 461(2)B.

PN30

Consequently, as required by section 461, I will therefore grant the application for a protected ballot, generally in the form of the order sought, although with some changes in line with what I think is now very much a standard order provided by the Commission in this jurisdiction. That order will issue later today and my associate will contact you later today when that ballot order is available. On that basis the Commission is adjourned and I thank you for your attendance and your submissions this morning.

<ADJOURNED INDEFINITELY [9.38AM]