BP2008/3779, Transcript of Proceedings [2008] AIRCTrans 575 (29 September 2008)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 19143-1

COMMISSIONER BLAIR

BP2008/3779

s.451(1) - Application for order for protected action ballot to be held
Construction, Forestry, Mining and Energy Union
and
Midway Limited
(BP2008/3779)

MELBOURNE

1:04PM, TUESDAY, 16 SEPTEMBER 2008

Continued from 5/9/2008

PN16

THE COMMISSIONER: No change in appearances?

PN17

MS R READ: No, sir.

PN18

THE COMMISSIONER: Last time we were together the Commission suggested to the parties that they have some further attempts to see whether or not they were able to reach an agreement and the Commission, I think at the time, said that when we relist the matter for today, if the parties were interested, the Commission would see whether or not it was desirable to chair a conference. How have the parties gone? Ms Read.

PN19

MS READ: If it please the Commission, sir, I can advise that the parties have met on one occasion since the last time the matter was before the Commission. It was difficult, given timing constraints, to meet an additional time. We approached that meeting in an open minded spirit and we put the company's offer to our members again. After that meeting our members have again voted to reject the offer and have directed the union to proceed to pursue the ballot application which is currently before the Commission.

PN20

THE COMMISSIONER: In terms of an attempt at conciliation today, what's the union's position there?

PN21

MS READ: Given that our members have directed us to pursue the ballot application, we would seek that the matter presently before the Commission , which is the ballot application, be heard and determined prior to any conciliation taking place. If there is a need for conciliation, it's certainly not the union's position at this moment to seek conciliation. Our members have directed to pursue the ballot option.

PN22

THE COMMISSIONER: What's the main issue where the parties are apart or are there several issues?

PN23

MS READ: There are several issues where we're apart and in fact, it's our view that perhaps we're becoming - as a result of the most recent meeting we may be drifting further apart. There are some issues which we had previously believed were agreed which now appear to have - the company appear to have changed their position in relation to those issues.

PN24

The significant issues are, from our members' perspective, the relationship between the proposed agreement and their award conditions; the way in which RDOs are dealt with in the agreement; the way in which sick leave is paid out under the agreement; the application of the grievance and dispute procedures or the content of that procedure and the ability to refer disputes to the Commission for arbitration under the grievance and disputes procedure. There are a number of other issues relating to drafting and things of that nature as well, sir.

THE COMMISSIONER: Mr Ryan.

PN25

MR RYAN: Commissioner, quite frankly we're a bit surprised by the report back that's just been given in relation to the number of areas that remain outstanding, but before I deal with those, Commissioner, I just confirm that there was a meeting that took place between the parties last Wednesday at which time the company put a revised position to the union and the employee representative. That was another major move on behalf of the company to seek to resolve the issue. The union indicated later that day that the position had been rejected and we haven't had the opportunity to convene another meeting prior to today.

PN26

From our perspective, Commissioner, we certainly believe it would assist if you were available to assist the parties in a conciliation conference because we believe, given the matters that have been outlined just now in terms of where the perceived areas of difference are and in fact are widening, we would seriously dispute that as being the case and believe a conference between the parties would very quickly content yourself, Commissioner, that in fact is not the case.

PN27

We're not seeking to not enable the ballot take place, Commissioner, we just believe that by your assistance it would clearly assist the parties reach an agreed settlement in relation to what we would consider not to be great variances between the parties.

PN28

THE COMMISSIONER: Mr Ryan, as you know, it takes two parties to want the Commission to conciliate. We can't impose conciliation upon the parties.
Ms Read has indicated, as you've heard, that their instructions are from their members to proceed with the application for the ballot.

PN29

MR RYAN: Commissioner, we're just surprised at this point that in fact is a direction that the members have given, given the situation between the parties.

THE COMMISSIONER: Ms Read, what do you say about what Mr Ryan says?

PN30

MS READ: Sir, I know that this is the union's application for the conduct of a ballot and that there's no associated power for the conduct of conciliation in conjunction with ballot applications. There is a power under the Act for conduct of conciliation in relation to bargaining for enterprise agreements and it's open to the company, if they choose to, to lodge an application under that relevant section. The union will consider any such application, should it be made, but at the moment there is no such application and we would press for the determination of our application for the conduct of the ballot which is presently before the Commission..

PN31

THE COMMISSIONER: Mr Ryan, you may have to lodge a separate application, if that's the case.

PN32

MR RYAN: Yes, that will most probably necessarily be the case, Commissioner, but we had thought, given the indications last time round that we would hope to achieve a conciliation process today. We just again repeat that we're disappointed that the union have elected not to accept that proposal.

PN33

THE COMMISSIONER: Ms Read, do you wish to press your application?

PN34

MS READ: Yes, sir. Relying on the instructions of our members, they've rejected the company's offer as it stands. They have now twice directed the union to seek that a protected action ballot take place, once prior to the initial making of the application and again subsequent to the company's amended offer which was made last week. We say that we've met all the statutory prerequisites for the making of a protected action ballot and I'm prepared to go to the detail of that should the Commission require information as to the processes which have taken place to meet the requirements of the making of a protected action ballot. We say that all of the requirements have been met and our application is consistent with the statute.

PN35

THE COMMISSIONER: Mr Ryan, I understand your desire to want to go into conciliation but it's not going to happen, I'm afraid, unless you make a separate application. Is it the company's intention to oppose the application for the ballot and if so on what grounds would they oppose it?

PN36

MR RYAN: No, we're not going to oppose the application for the ballot, Commissioner.

PN37

THE COMMISSIONER: Do you concur with the remarks of Ms Read that the requirements under the Act have been met in order for the ballot order to be issued?

PN38

MR RYAN: It appears that the requirements have been met in relation to the application, Commissioner.

PN39

THE COMMISSIONER: Yes, Ms Read.

PN40

MS READ: Sorry, sir.

PN41

THE COMMISSIONER: The only issue goes to, as I understand it, the ballot is to be by attendance and we need to know the most appropriate times for the ballot to open. Is it just one shift or are there two shifts? Just one shift?

PN42

MR RYAN: Two shifts.

PN43

MS READ: If it please the Commission the union has prepared a draft order which includes our proposed timetable for an attendance ballot, which takes into account the needs of the two shifts. We've set a window of time which we consider would adequately allow for the people on all of the shifts to - it's not - perhaps if I start. My understanding, sir, is that there is an eight hour dayshift which runs from 9 am to 5 pm, a nine hour afternoon shift which runs from 2 pm till 11 pm, a 12 hour dayshift which runs from 6 am to 6 pm , a 12 hour nightshift which runs from 6 pm to 6 am.

PN44

Sir, you'll see from our proposed timetable, which is at point 8 of the draft order, that the ballot should open at five and finish at seven which would enable the people working on those various shifts to either vote during their lunchbreak, vote after the conclusion of their shift or vote prior to the commencement of their shift.

PN45

THE COMMISSIONER: It's 5 pm and 7 pm?

PN46

MS READ: Yes, sir. We understand that there is only one member usually employed on the nine hour afternoon shift, which runs from two till 11 and his lunchbreak is usually - it's not fixed but floats and so we indicate that we would ask the company's cooperation in that his lunchbreak on that day could be scheduled in that window between five and seven to enable him to vote in the ballot. The timing is approximately consistent with when the lunchbreak would normally occur.

PN47

THE COMMISSIONER: Mr Ryan.

PN48

MR RYAN: Commissioner, we'd seek to perhaps have an adjournment for half an hour or so to consider the terms of the ballot. There are already identified a couple of technical issues in relation to - firstly, the name of the company and the address has changed since the application has been filed and also just seek some time to confer with Mr Eyre in relation to the contents of the proposed order that's been submitted today. We haven't had an opportunity to consider this order in any way, shape or form.

PN49

Commissioner, the issues I'm talking about, and again Mr Page would be familiar that the company is Midway Limited, not Midway Pty Ltd. This was pointed out in our last meeting. There's been a restructure of the company in terms of company structure and also, the address is not 150 Corio Quay Road, it is 10 The Esplanade, Geelong is the address of the premises as well. So they're a couple of matters to do with the order.

PN50

More particularly, Commissioner, I'd seek the opportunity to confer with Mr Eyre in relation to some of the other matters that are contained within the proposed order because, as I said, we haven't had the opportunity to consider this order prior to today.

PN51

THE COMMISSIONER: Ms Read, the material that you put this morning in terms of the draft order, they were forwarded to the company?

PN52

MS READ: No, sir, however, the draft order is in standard form which reflects the Commission's usual orders - the order reflects the Commission's usual orders in these matters - - -

PN53

THE COMMISSIONER: But the documentation which you forwarded to the company would have included the questions proposed in the ballot.

PN54

MS READ: Yes, sir. The application included all of the questions proposed in the ballot and the draft order, those questions are identical to those included in the application. The only new information is the proposed timetable which is at
point 8. I understand also in relation to the change of address, the workplace is physically located in the same place. The entrance has moved to a different street or around the corner so while they may describe their location as on The Esplanade, The Esplanade intersects with Corio Quay road so it's not that the workplace is somewhere else.

PN55

THE COMMISSIONER: Mr Ryan.

PN56

MR RYAN: Commissioner, again we just want to have the opportunity to consider the terms of whether in fact the order is the same as all the questions that have been put in the original paperwork that was forwarded to the company. That's why I seek the opportunity to have a brief adjournment to consult with Mr Eyre. The other question, Commissioner, is in relation to actually how was the ballot - we understand that an attendance ballot is the preferred method but how that is to be conducted as well.

PN57

THE COMMISSIONER: It's very easy. An officer from the Australian Electoral Commission is available on site to ensure that the ballot papers are issued, people vote, there is no interference with the ballot box, the ballot paper. The ballot closes, he goes away with the ballot box, counts it and declares the ballot. It's conducted by the Australian Electoral Commission.

PN58

MR RYAN: I thought that would have been the case but I wasn't sure whether reference was supposed to be included within the - had to be included within the order or not for that to occur.

PN59

THE COMMISSIONER: For what to occur?

PN60

MR RYAN: For the ballot to have been conducted by the Australian Electoral Office. Again, I'm sorry, Commissioner, it is there at clause 5 of the order.

PN61

THE COMMISSIONER: Clause 5.1, yes.

PN62

MR RYAN: I haven't had a chance to have a look at the terms of the order prior to now, Commissioner. That's why I raised the question. Otherwise, if the union are satisfied in relation to those matters, as I said, I just indicated to you that there were two immediate issues that jumped out in relation to the company.

PN63

THE COMMISSIONER: As I understand it, the site is the same, it's just that Ms Read has indicated that the change of the address is from one street to around the corner so fundamentally there is no change in the premises. The order will reflect the appropriate address if you say the address has been changed. That's not a problem as long as the electoral officer knows where to turn up.

PN64

MR RYAN: Where to turn up, that's fine.

PN65

THE COMMISSIONER: That's it. In fact the timeframe proposed, as I understand it, by the union in the ballot order is actually a bit more liberal, I think. It says the roll of voters is to close by 5 pm on Friday, the 19th. The Australian Electoral Commission's timeframe proposes the roll of voters closes on Thursday, the 18th so there's an additional 24 hours in terms of the ballot, the roll of voters and so forth.

PN66

If you want to look at the questions, I mean - - -

PN67

MR RYAN: No, Commissioner, on the basis of having had the opportunity there to - I don't think I need to line up the questions and to equate the same as what was contained in the initial documentation that was forwarded to the company which is structured in a different way. On that basis we won't make any further formal submissions, Commissioner.

PN68

THE COMMISSIONER: That having been said, the Commission is satisfied that the requirements of the Act have been met in order for a ballot order to be issued, just with a couple of minor amendments in terms of the correct address of the employer. It doesn't affect the premises itself, as I understand, it's the operations at 10 Esplanade Road. Is that correct?

PN69

MR RYAN: The Esplanade..

PN70

THE COMMISSIONER: The Esplanade, sorry, 10 The Esplanade. The timeframe proposed by the Australian Electoral Commission has just been varied slightly by the order proposed by the union. The questions are the same as identified in the original application and the ballot shall take place between 5 pm onsite and 7 pm onsite on Wednesday, 24 September at which time, once the ballot closes, the AEC formally declares the results anyway.

PN71

Ms Read, what we'll do in regard to your draft order, we'll actually pick up the timeframe identified by the Australian Electoral Commission where the roll of voters will close on the 18th. Otherwise, that throws the election out by a day because there has to be two clear days, et cetera so we'll go by the timeframe identified by the electoral officer. That still says the ballot will take place on the 24th but the roll of voters will close on Thursday, the 18th, not Friday, the 19th.

PN72

MS READ: Sir, just if I might ask a question. It's been our experience recently with ballot applications that the union and the employer are directed to provide their lists of members and employees by a date usually approximately two days after the hearing of the matter and then there is a day after that in which employees are able to contact the Electoral Commission to raise any queries and the roll closes in fact 24 hours after the date on which the union and the company provide their lists.

PN73

THE COMMISSIONER: I'll give you the timeframe by the AEC, the hearing today making the ballot orders; tomorrow by 4 pm both the employer and the applicant will provide a list covering declarations to the AEC; Thursday, the 18th at 5 pm the roll of voters is to close; Friday, the 19th, section 463 allows
two working days from roll close to ballot opening; Monday, the 22nd again
two working days from the roll closure to the ballot opening; Tuesday, the 23rd attendance ballot commencing on - this just doesn't make sense, does it? Yes, it does, the 23rd the ballot shall be, sorry, not the 24th, the 23rd and the ballot is declared on the 24th.

PN74

MS READ: Whereas our proposal, sir, was that the ballot take place on the 24th and be declared whenever the Electoral Commission chooses to declare it but obviously, taking into account the obligations under the Act.

PN75

THE COMMISSIONER: Yes. they would then need to declare it on the 25th.

PN76

MS READ: Yes. We've no problem, sir, with the Electoral Commission's timetable if that is more convenient.

PN77

THE COMMISSIONER: I think it is, given they would have everything in place to make sure it runs as smoothly as possible. We'll stick with the AEC's timeframe. My apologies for that. The ballot will actually be by attendance on Tuesday, the 23rd between 5 pm and 7 pm and then the 24th the ballot will be declared and the results provided to the AIRC. Sorry about that.

PN78

Accordingly, the orders will be issued. Mr Ryan, if your client wishes to make an application in terms of conciliation under the Act, they're free to do so.

PN79

MR RYAN: I foreshadow that will certainly be the case, I'd imagine, Commissioner.

PN80

THE COMMISSIONER: Sure, and when you make the application, if you do, just indicate that the ballot order was before myself and that way, hopefully, I'd get the file and we can sit down and work our way through it. The Commission will stand adjourned.

<ADJOURNED INDEFINITELY [1.27PM]