BP2008/3848, Transcript of Proceedings [2008] AIRCTrans 673 (28 October 2008)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 17767-3

DEPUTY PRESIDENT MCCARTHY

BP2008/3848

s.451 (1) - Application for order for protected action ballot to be held

Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union
and
Amcor Beverage Cans, a Division of Amcor Packaging (Australia) Pty Ltd
(BP2008/3848)

PERTH

12.00PM, FRIDAY, 10 OCTOBER 2008

PN1
MR J WILSON: I appear on behalf of the applicant.
PN2
MR D PARKER: I seek leave to appear on behalf of the respondent.
PN3
THE DEPUTY PRESIDENT: Mr Wilson, do you have any issues with leave being granted?
PN4
MR WILSON: No, that's fine by us.
PN5
THE DEPUTY PRESIDENT: Leave is granted, Mr Parker. Mr Wilson, I don't know whether you've received it but I caused a preliminary assessment of the application to be sent to the parties.
PN6
MR WILSON: I have, sir, thank you.
PN7
THE DEPUTY PRESIDENT: There's a number of questions I would initially ask of you, unless you wish to make a submission to me and address some of those issues that are identified that need information to be provided or confirmation of compliance with the requirements of the Act and how you wish to go about it.
PN8
MR WILSON: I believe I have answers at hand to meet the rest of the requirements. Would you like me to address those eventually?
PN9
THE DEPUTY PRESIDENT: Perhaps if I go through them. There's an existing collective agreement, is there?
PN10
MR WILSON: That's correct. I have a copy of it here.
PN11
THE DEPUTY PRESIDENT: The application is made after the nominal expiry date of that agreement?
PN12
MR WILSON: Yes, that's correct. The nominal expiry date was 30 June this year.
PN13
THE DEPUTY PRESIDENT: A copy of the application was served on the respondent within 24 hours?
PN14
MR WILSON: It is and I have copies of the faxes and the fax transmissions to support that.
PN15
THE DEPUTY PRESIDENT: A copy was served on the ballot agent within 24 hours?
PN16
MR WILSON: It was, and we've received verbal communication from the Electoral Commission confirming that they have received it yesterday.
PN17
THE DEPUTY PRESIDENT: Have you any reason to believe that parties or persons who may have an interest in this matter have not been provided with the opportunity to make submissions?
PN18
MR WILSON: No. As I understand it the company has complied with its requirements to place a notice in the workplace.
PN19
THE DEPUTY PRESIDENT: Do you have any comment about having genuinely tried and genuinely trying to reach agreement with the employer?
PN20
MR WILSON: I have a list of dates and a brief summary of meetings that have occurred since the bargaining period became live, which I'm happy to go through, if you would like.
PN21
THE DEPUTY PRESIDENT: Yes, if you would.
PN22
MR WILSON: The notice to initiate bargaining period was served on 4 September and after the seven day period after which the bargaining period becomes live, there was a mass meeting held on 11 September 2008 and then a meeting between the joint consultative representatives and managers, including
D Rust and John Prentiss. Subsequent to that there was a further meeting on 18 September 2008 between the JCC and management to discuss the new collective agreement, and again on 23 September and then again on 2 October. Whilst we haven't yet reached agreement we believe we've made significant progress and there's only a few matters that are outstanding, those points of difference.
PN23
THE DEPUTY PRESIDENT: You're still attempting to reach agreement?
PN24
MR WILSON: Yes. Whilst the workers have rejected the offer that's currently on the table, we will consider any additional offers that the company might bring forward and are communicating to that effect.
PN25
THE DEPUTY PRESIDENT: Should this order issue, you'll be intending to further meet with the company.
PN26
MR WILSON: We're available at any time to genuinely reach agreement with the company.
PN27
THE DEPUTY PRESIDENT: Is there any other matter that you wish to bring to my attention?
PN28
MR WILSON: Not at this stage.
PN29
THE DEPUTY PRESIDENT: Mr Parker.
PN30
MR PARKER: Your Honour, I've also received this morning the document that you provided to the parties which helpfully sets out a summary of the requirements under the Act. I wouldn't intend to go to all of those requirements, nor even, sir, all of the requirements that you've mentioned need to be satisfied in the circumstances.
PN31
Sir, if I may I'd like to come back to the issue of genuinely trying to reach agreement. I would submit in that regard it's a matter for the applicant for the ballot order on the established authorities to demonstrate to the Commission to the Commission's satisfaction that that prerequisite is in fact met. Sir, I'll come back to that in a moment.
PN32
Looking at the matters that the Commission had identified to be determined, which I'd seek to address, there was one matter in relation to the timetable for the ballot which is at 2.4 of the table that you'd set out on page 7. Recorded against that is that a compliance is satisfied in that regard. I've received a copy of the draft order that had been prepared by the union that at that stage didn't include timetables, although I do understand that it may well be a matter more for the ballot - the person conducting the ballot than anybody else as to what the most convenient timing is but, sir, I would submit that the timing of those matters, when the roll closes, when the ballot opens and when the ballot closes or voting closes, are all matters that will need to be filled in, for want of a better term.
PN33
THE DEPUTY PRESIDENT: You usually get provided with times from the ballot agent proposed and we usually slot those times into the order, should it issue, to ensure that those provisions are satisfied so that, yes, is on the presumption of the pilot.
PN34
MR PARKER: Yes. Sir, may I respectfully inquire - I take it then that no times have been provided as yet.
PN35
THE DEPUTY PRESIDENT: Yes, they have.
PN36
MR PARKER: That was one matter that I was unsure about in relation to the draft order. Other than that, sir, I wouldn't have any submissions to make concerning any of the other matters, although I would come back to the issue of genuinely trying to reach agreement. Sir, I think what we've just heard from the union is, in effect, some submissions that meetings have taken place.
PN37
THE DEPUTY PRESIDENT: There's been a series of meetings.
PN38
MR PARKER: That there is a preparedness, if I take the submission that was made at face value, a preparedness to consider matters put back to the union by the company. I would raise a question, without taking it any further than that. I have no positive submissions to make that the union is not genuinely trying to reach agreement, but I would submit that what has been provided so far is fairly scant in detail for the Commission to be in a position to be satisfied that that requirement is met.
PN39
THE DEPUTY PRESIDENT: What you're inferring is there is insufficient information in order for me to be satisfied and there should be something more expansive than that.
PN40
MR PARKER: Yes, sir, and I'm certainly not submitting that the union is not in a position to provide it. I guess, for my purposes, I'd simply like to hear more about why in substance the union says they are genuinely trying to reach agreement, not simply that procedurally there have been meetings. Sir, you may well be aware that some of the background to this matter is that there were previous notices and the like that were not valid because the incorrect employer was named. The bargaining period that has been served, on the submissions that have been made, is a relatively recent one, served on 4 September and indeed, the tests under the Act relate to genuinely trying to reach agreement in the bargaining period and indeed, that that is still currently occurring.
PN41
Sir, it may be, after hearing further from the union, that submission goes away, so to speak, but that would be my only observation in that regard. I'd reiterate, sir, I have no positive submission to make that the union is not genuinely trying to reach agreement. May it please the Commission
PN42
THE DEPUTY PRESIDENT: Mr Wilson, the point that Mr Parker essentially makes is that what you've provided me so far is simply an identification that there's been meetings. Something more than that is really required and further, that the attempts to reach agreement have been since the bargaining period that is the subject of this application was lodged. Can you provide me with any further material in support of this application regarding the genuinely trying to reach agreement?
PN43
MR WILSON: Certainly, I'd be happy to and I'm also happy to tender documents in support of oral submissions that I'd give. Recapping on my previous comments, the second most recent meeting on 23 September 2008 - - -
PN44
THE DEPUTY PRESIDENT: Can we go back a step so that I understand this properly. The bargaining period was lodged on 4 September. Can we take it from there, what's happened.
PN45
MR WILSON: I can even take it back further if you'd like me to.
PN46
THE DEPUTY PRESIDENT: No, 4 September is all I need.
PN47
MR WILSON: A draft EBA was sent to the AMWU by Amcor on 8 September. That draft EBA was considered by the union delegates, the union officials at meetings. After a mass meeting was held and a vote was held on the company's position at the time, the workers decided not to accept the company's position. That result was communicated then to the management of the company and a request for a further meeting was made by the union towards reaching agreement.
PN48
THE DEPUTY PRESIDENT: When was this?
PN49
MR WILSON: 11 September 2008. We were successful in securing a meeting a week later on 18 September 2008, that was the meeting between the joint consultative committee, including union delegates, officials and management. Management stated at that meeting that they were still very far away from being able to offer something that would be acceptable to the workforce based on the workers' representations at that meeting. The company informed people at that meeting that they would go away and consider further their position. The union waited some number of days, until 23 September another meeting was called.
PN50
At that meeting the employee representatives provided a two page document to the company summarising what the employees considered to be the outstanding points of difference and stating concisely what the employees' position was. I've got a copy of that document here if you'd like to see it.
PN51
THE DEPUTY PRESIDENT: Yes.

EXHIBIT #A1 UCA PACKAGE FOR EMPLOYEES

PN52
THE DEPUTY PRESIDENT: Do you have a copy, Mr Parker?
PN53
MR PARKER: Sir, I don't.
PN54
THE DEPUTY PRESIDENT: I'll arrange for my associate to provide you with a copy.
PN55
MR WILSON: Nevertheless, a copy has been provided to the company. It was provided at the meeting of 23 September.
PN56
THE DEPUTY PRESIDENT: This is headed UCA Package for Employees?
PN57
MR WILSON: Yes, and that was the document that was developed by the employee representatives.
PN58
THE DEPUTY PRESIDENT: What does UCA stand for?
PN59
MR WILSON: Union collective agreement. That letter was done in response to a request by the company. The company put forward a position to say that they could no longer work on any packages to put forward and that the onus was now on the workers to put forward a log of claims, if you like, in addition to all the other previous log of claims clarifying the position at that point in time and at their request that document was produced.
PN60
I think it's fair to say that if the company came to a position where they agreed with the dot points there, then we would have agreement but we have not received correspondence from the company.
PN61
THE DEPUTY PRESIDENT: This was 23 September, was it?
PN62
MR WILSON: That's correct.
PN63
THE DEPUTY PRESIDENT: What's happened since then? You provided this to the company, what has happened since then?
PN64
MR WILSON: There was a further meeting on 2 October between the joint consultative committee and management where that document was discussed and the company informed the workers that at that point in time they were not able to agree to those terms or provide an improvement in the position that the workers had rejected earlier. That was also clarified in a email from the company which I believe I have on file if you would like to look at it. Our position is and remains that we are open to any offers and to consider any offers that are better than the one that has been voted down at a mass meeting.
PN65
THE DEPUTY PRESIDENT: Let me understand this properly. There's been meetings prior to 23 September that didn't result in agreement. The company requested that you provide your position in writing to them. That was provided to them on 23 September. That wasn't agreed to by the company. A further meeting was held on 2 October and again agreement was not reached and what's happened since then?
PN66
MR WILSON: There was a further meeting, I understand, on 7 October with management where there was no shift in the position from either side, despite our attempts to convince management of the merits of our claims. After that point a decision was made by the workforce to instruct us to make application for a ballot for protected action.
PN67
THE DEPUTY PRESIDENT: Is there anything further you want to add at the moment?
PN68
MR WILSON: Not at this stage, thank you, sir.
PN69
THE DEPUTY PRESIDENT: Mr Parker, do you have anything you want to add?
PN70
MR PARKER: I have nothing to add, sir, thank you.
PN71
THE DEPUTY PRESIDENT: I'm satisfied that the requirements of the Act have been met and that the applicant has sought to and is seeking to genuinely reach agreement. Hopefully that occurs before any call for industrial action is made, should the ballot be successful. It's my practice to issue the order for a ballot in draft form with the times in it and provide it to the parties before I formally issue it. That will be done immediately if you can wait in the vicinity of the Commission for the time being. That will be provided to you and I'd expect that you'd be able to comment back to me sometime today so that the order can issue today. Thank you.

<ADJOURNED INDEFINITELY [12.16PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #A1 UCA PACKAGE FOR EMPLOYEES PN51