BP2008/3735, Transcript of Proceedings [2008] AIRCTrans 539 (15 September 2008)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 19068-1

COMMISSIONER RAFFAELLI

BP2008/3735

s.451(1) - Application for order for protected action ballot to be held
National Union of Workers
and
Post Logistics Australasia Pty Ltd
(BP2008/3735)

SYDNEY

10.09AM, TUESDAY, 02 SEPTEMBER 2008

PN1

MR R RICHARDSON: I appear for the National Union of Workers with MR S CAIN.

PN2

MS A MCKENZIE: I appear on behalf of Post Logistics Australasia Pty Ltd with me I have MR A ANDERSON.

PN3

THE COMMISSIONER: Yes, thank you. Yes, Mr Richardson.

PN4

MR RICHARDSON: Commissioner this is an application for an order for a protected action ballot to be held at four premises of the company Post Logistics Australasia Pty Ltd. As we understand matters the application is consented to so our submissions will in that context be brief. Firstly I just need to draw the Commission’s attention to an amendment not an amendment, an error that appears on the bargaining period and it is possible that there may be correspondence on the file in relation to this matter.

PN5

By means of correspondence dated 29 August Ms McKenzie of the company advised the union that four locations named in the bargaining period, namely the location in Brisbane, two locations at Burwood Highway in Knoxfield Victoria, and one location at Harcourt Road, in Altona are actually not companies that are owned or operated by Post Logistics Australasia. I say that there may be correspondence on the file, because Ms McKenzie had informed me that when the bargaining period was initially filed by the union she caused correspondence to be forwarded to the Commission. I must confess some ignorance in this respect I’m assuming that the same file that you have is the file that would have originally have been created by the registry in Melbourne where the bargaining period may have - - -

PN6

THE COMMISSIONER: No not necessarily.

PN7

MR RICHARDSON: In any event Ms McKenzie has advised that those locations are not locations or businesses that are owned or operated by Post Logistics Australasia. In that respect the bargaining period should not apply to those. Now in our submission that doesn’t impede the proceedings today nor cause any fatality to the union’s application because the union’s application is limited to four sites located here in the state of New South Wales. Perhaps what I could so sir - - -

PN8

THE COMMISSIONER: In your application there are the four sites that is the Brisbane Airport, Altona and the two Knoxfield sites.

PN9

MR RICHARDSON: That is correct.

PN10

THE COMMISSIONER: But there is also Coopers Plains in Queensland, Greenfields in South Australia and Greenfields in South Australia what’s that? What are they?

PN11

MR RICHARDSON: They are locations that are owned and operated by Post Logistics Australasia.

PN12

THE COMMISSIONER: I see but you don’t seek to have protected action in respect of those sites?

PN13

MR RICHARDSON: No.

PN14

THE COMMISSIONER: Okay.

PN15

MR RICHARDSON: That is as is set out in my affidavit which forms the last attachment to our application. There are certain statements made that I can summarise as follows. That with the exception of those sites that were covered by the agreement of the New South Wales State Commission the remaining sites employ persons as the union understands it that are either bound by Australian Workplace Agreements as they then were, or common law contracts. More importantly, within my affidavit I’ve sworn that or certainly swore at the time that the affidavit was made, that to the best of the union’s knowledge most if not all of the union’s members are employed in New South Wales.

PN16

Since swearing the affidavit on 26 August, certainly are now in a position to confirm that the union’s membership is restricted to New South Wales and in particular the four locations that are the subject of this immediate application. If I could – what I was going to indicate sir is perhaps at the end of the proceedings I can – because I don’t have a copy, but I can provide your associate with a copy of that letter to which I’ve referred.

PN17

THE COMMISSIONER: That’s the letter of 29 August.

PN18

MR RICHARDSON: Yes.

PN19

THE COMMISSIONER: No, we have that, a copy of that.

PN20

MR RICHARDSON: You do have that, thank you. If I could turn to the application itself, the union submits that the application is consistent with the Act and in particular consistent with section 452. The application contains the question that is proposed by the union consistent with subsection (1) of 452, clearly describes the types of employees being store workers who are members of the applicant consistent with subsection (2) of 452 and contains the proposed details as per – sorry contains the details as required under the rules consistent with section 452(3).

PN21

The union also included with its application the accompanying material as is required by subsection 453(1). In particular a copy of the bargaining period that was initiated on 4 July 2008 and importantly both a notice of authorisation signed by Mr Donnelly, the general secretary, indicating that the authorisation was given by the National Committee of Management of the union and a declaration by Mr Donnelly indicating that the application does not relate to – or is not related to the purpose of supporting or advancing claims that constitute prohibited content.

PN22

Whilst the application is one that is consented to, we also direct the Commission’s attention to the affidavit sworn by myself, which appears as appendix – sorry attachment H to the application sworn on 26 August which sets out some of the background to the negotiations between the union and employer. The two dates the meetings were held and we say that the affidavit stands as evidence to the fact that the union has endeavoured to genuinely try and reach agreement and remains committed to genuinely trying to reach agreement, and has not engaged in pattern bargaining as defined in the Act.

PN23

In those circumstances we would seek the Commission make an order instructing a ballot to be held. We received on Friday afternoon a draft order from your chambers and there were discussions both on Friday and yesterday between Ms McKenzie and myself and the union seeks three amendments to the draft order as issued from chambers and in addition seeks to adjourn briefly into conference to discuss the timetable for the ballot. In respect of the amendments we seek the first is within paragraph 3.1 at page 1 of the draft order and that would appear at the end of the second line after the words the date of this order and we would propose should go on to read:

PN24

Normally employed at the work sites identified in schedule A.

PN25

The effect of such a change to the draft order would be to then insert a schedule A which would contain the addresses of the four sites, three of which are located in Wetherill Park and the fourth in Eastern Creek, just to make absolutely clear which employees who are members of the union who are entitled to participate in the ballot. The second and third amendment which are the same relate to paragraphs 5.1 and 6.1 which are the requirements under the order at issue for both the employer and the union to provide lists to the Electoral Commission by tomorrow afternoon. The change sought there is simply after the words “date of birth” in paragraphs 5.1 and 6.1 to include in brackets the words “if available”.

PN26

It’s my understanding that in most cases, the union’s membership system does contain the date of birth but not in all cases. In fact in some cases it may be that we have dates of birth but do not have phone numbers, or at least current phone numbers. So they are the amendments which we would seek to the draft order as issued and those amendments are consistent with the discussions I’ve had with Ms McKenzie since Friday. Other than that we say that the application is consistent with the Act and that the order should issue and that subject to the submissions of Ms McKenzie we would seek to adjourn into conference just to discuss the timetable for the ballot from the point of view of logistics. If the Commission pleases.

PN27

THE COMMISSIONER: Yes, thank you. Yes Ms McKenzie.

PN28

MS MCKENZIE: Thank you Commissioner, in relation to Post Logistics Australasia Pty Ltd as indicated by Mr Richardson, that we’re not opposing the application for the protected action. Also as indicated by Mr Richardson there were some drafting matters which we deem to be minor which he has addressed in his submissions which we consent to. We are seeking to negotiate a commercially defensible agreement that we say allows us to remain competitive in the logistics industry. We continue to be available which I’d like to place on record to meet and continue discussions with the National Union of Workers. Understanding requirements of the Act and the opportunities that are provided within the Act, we are disappointed with the action sought, however we understand that that is allowable in relation to the provisions of the Act and I concur with Mr Richardson that if we can go into conference to look at the scheduling of the matters.

PN29

THE COMMISSIONER: Yes, thank you. Well we’ll adjourn briefly into conference.

OFF THE RECORD

PN30

THE COMMISSIONER: Yes, well the parties have conferred with the Commission and the Commission on the basis of what is before it is satisfied that the Act - the provisions of the Act associated with such an application and ballot have been complied with and consequently the Commission must issue orders. The first order that it will issue will be appointing the Australian Electoral Commission as the authorised ballot agent and then the second order the more substantive one, will be similar to that already communicated with the parties in draft form subject to some additional words to identify that the ballot is to be at four locations in western Sydney.

PN31

And furthermore that the ballot is to open at 12 noon on Tuesday 9 September and it will close at 3 pm on that date and the location of the ballot will also be identified in clause 7 for the assistance of the parties. Those orders will issue later this morning, on that basis these proceedings are adjourned.

<ADJOURNED ACCORDINGLY [10.33AM]