BP2008/2324, Transcript of Proceedings [2008] AIRCTrans 77 (26 February 2008)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 18110-1

COMMISSIONER WHELAN

BP2008/2324

s.451(1) - Application for order for protected action ballot to be held
National Union of Workers
and
Drivetrain Australia Pty Ltd
(BP2008/2324)

MELBOURNE

9.52AM, TUESDAY, 12 FEBRUARY 2008

THE FOLLOWING PROCEEDINGS WERE CONDUCTED VIA VIDEO CONFERENCE AND RECORDED IN MELBOURNE

Hearing continuing

PN1

MS S ALLISON: I appear with MR J GLOVER and MR C KALORMIRIS on behalf of the National Union of Workers. Commissioner, I'll just indicate today with us in the court room we also have MR D MAILING from the National Union of Workers.

PN2

THE COMMISSIONER: Thank you, Ms Allison.

PN3

MR A BAUNGARTNER: I appear for the Motor Traders Association of New South Wales on behalf of Drivetrain Australia Pty Ltd. With me is MR P SASSE who is for the company and we also have MS E MIMMS representing the MTA.

PN4

THE COMMISSIONER: Thank you, Mr Baungartner. Ms Allison?

PN5

MS ALLISON: Thank you, Commissioner. The National Union of Workers has lodged an application for an order for a protected action ballot to be held in relation to Drivetrain Australia. Commissioner, we submit that all the requirements of the Act and the technical pre requisites have been met in order for a secret ballot application to be held. And on that basis we submit that the Commission is required to order a protected action ballot.

PN6

Commissioner, I will note as you aware, the Act provides for a very tight time frame in relation to the making of such orders. In particular section 457(1) indicates that the Commission must act as quick as practicable in relation to these applications and as far as reasonably possible determine an application within two days after an application is made. However, Commissioner, prior to putting formal submissions regarding a time frame and requirements I will indicate that the NUW remains ready and willing to negotiate with the company and it may be worth while going into conference to see whether there is any opportunity to resolve the matter today.

PN7

THE COMMISSIONER: Thank you, Ms Allison. Mr Baungartner?

PN8

MR BAUNGARTNER: Yes, Commissioner, there are some issues with the application. I should indicate that we've had very limited time to review the application and there is an issue of representation. Obviously the company's premises are in Victoria and I understand that Drivetrain will be seeking or obtaining representation in Victoria for this matter if the matter has to go for hearing. There is an issue of eligibility that we have a problem within the application.

PN9

The union in its notice of initiation of a bargaining period at page 8 of the application indicates that on the second page of the initiations at page 3 of the document, but page 8 of the document we received, indicates that they are seeking a collective agreement in respect to warehouse workers. However the order they seek in the draft ballot and the voting order in types of employee at item 5, which is page 17, suddenly includes production line workers. Similarly on item 8, in that area of the ballot order they include production line as well.

PN10

Now, that's an extension and it seems to be improper in relation to the initiation of the bargaining period that on the one hand they're saying warehouse workers and now they're seeking orders extending that. We would argue also that jurisdictionally the NUW doesn't have any right to cover production line workers. Section 450 of the definitions under this section of the legislation talks about relevant employee and it has to be any member of an organisation.

PN11

The reality is that the rules of the organisation are relevant with respect to this matter and we would argue that that's a threshold matter that will have to be determined first. So the issue of who is relevant for the ballot seems to be a fairly light issue and we have to be limited to only those members of the union that are eligible to be covered by the union. The application - the orders also refer to the company has being in the storage service industry that's also in accurate. It is an industry and you see that in the draft orders which I think are attachment F and G on the application.

PN12

THE COMMISSIONER: Yes.

PN13

MR BAUNGARTNER: So the reference to storage service industry is completely inaccurate. Drivetrain is in the vehicle industry. It is covered by Vehicle Industry, Repair, Services and Retail Award 2002. The company made the point of advising the union regarding that position in a letter of 17 January 2007 but for some bizarre reason the union has persisted with saying that the base award in the Storage Service General Award 1999. The company is not a respondent to that award, a respondent to the Vehicle Industry Award. So the claims seem to us to be ill considered.

PN14

THE COMMISSIONER: Sorry, can I just interrupt you for one minute,
Mr Baungartner. Do you say that the company is a direct respondent to the Repair, Services and Retail Award?

PN15

MR BAUNGARTNER: They're respondent through membership of the - - -

PN16

THE COMMISSIONER: Through membership. Okay. Thank you, I just wanted to clarify that, yes. That's okay.

PN17

MR BAUNGARTNER: I mean the company made the point of saying that the union used the wrong base in its claims, but it any event, and because of that naturally the claim had to be rejected, the company would also question whether the union is genuinely trying to reach an agreement because throughout the discussions to date there has been no concessions from the claims that have been made by the union. Those claims in the company's view are somewhat outrageous because one of them is that the company should act illegally and place all super entitlements into the LUCRF Fund.

PN18

Obviously it's illegal because, you know, we have to give choice of fund. So they are trying to push the company to do something that is illegal. The claims are imprecise. It talks about redundancy packages having to be negotiated. It doesn't indicate what they are claiming. The claims themselves are fanciful in some respects, in our view, claiming we should provide income protection for employees. I mean the problem for the company is that much of this will set a precedent across its business which is difficult for the company to at all consider.

PN19

So in one sense we would say that there is no genuine effort to negotiate by the union. Actually the company would reject the claims that have been made and obviously it has a right to reject those claims. From the company's point of view it would oppose the directions and orders that are sought. They haven't met all the requirements. There is coverage issues with respect to the bargaining notice period and arguably the NUW is breaching its rules by seeking to cover production line workers. We would argue that they are not genuinely trying to reach agreement on the section 461 and, I mean, obviously with the circumstances we're in only having received this application and the need for representation there are going to be problems with us being able to fully make submissions so obviously need an opportunity to do so.

PN20

THE COMMISSIONER: The purpose of these proceedings this morning is to deal with the programming of such a hearing, Mr Baungartner. I did not expect that people would be in a position to deal with those issues this morning. This is simply to get the ball rolling so to speak.

PN21

MR BAUNGARTNER: Yes.

PN22

THE COMMISSIONER: Yes.

PN23

MR BAUNGARTNER: No worries.

PN24

THE COMMISSIONER: Ms Allison?

PN25

MS ALLISON: Commissioner, I will make a few comments in response to those initial submissions, firstly, in regard to the respondent seeking further time in relation to representation and submissions. Now, Drivetrain is a large national company. That it is representing by the Motor Trades Association. They are well aware and the Motor Trades Association is well aware of the legal requirements under the Act and the tight time frame that the Commission is obliged to hear and determine such an application as this around.

PN26

So they have been given the appropriate notice in accordance with the Act and we would submit that any delay on the basis of the company requiring further time to seek representation should be denied. I want to address the issue of the work performed by the employees at Drivetrain. The work performed by employees at Drivetrain at the Hallam site is warehouse work. They pick, pack, invoice and despatch specialist motor components. There is an element where they assemble motor components on a production line. It is my understanding and you will find that in Mr Glover's affidavit is assembling component, I think, it's via hose is it.

PN27

They attach a hose. It is basic assembly which as, Commissioner, you would be aware is covered by warehouse work and is covered by the Storage Services Award and there is no question the National Union of Workers has coverage of that work. Why there is a different wording in relation to the question to be put to employees has opposed to on the bargaining period is because the employees themselves call themselves warehouse workers and production line workers.

PN28

So the people who are involved in assembling call themselves production line workers even though that is covered by the storage service industry and the Storage Services Award. However, the question to be put to employees in a secret ballot application as per a number of decisions and going back to the David's decision must be in plain English that the employees understand so they are clear on what work is covered in that question.

PN29

Mr Baungartner referred to the company's belief that it is covered by the Vehicle Industry Award and it may well be in regards to some of its operations. We say that the work at Hallam is more accurately covered by the Storage Service Award however for the purpose of today's application this is irrelevant. I will note that the NUW is also a party to the Vehicle Industry Award so there is no issue with coverage in that regard. However this application isn't about appropriate award coverage. This application is about negotiations for an enterprise agreement.

PN30

Now, the union seeks that the terms in the enterprise agreement reflect the Storage Services Award, however we are happy to discuss that issue with the company. It is a matter for negotiations. In relation to the claim that we have not tried to genuinely negotiate, we say that that this a farcical claim. We have approached the company on a number of occasions and the response we have from the company is that they are not prepared to enter negotiations with the union for a union collective agreement.

PN31

So we are quite happy to sit down with them and talk about the claims in our bargaining period. Mr Glover, as indicated in his affidavit, when he spoke with human resources manager, Ms Beecroft, on 1 February 2008 indicated - sorry, Commissioner, that's paragraph 14 of his affidavit, indicated that the NUW was prepared to be flexible in relation to the claims. However, we never even got to sitting down to discuss those claims because the company wouldn't enter negotiations with the union.

PN32

They throughout our contact with them have confirmed by way of letter and by way of discussion that they do not want to negotiate with the union for a union collective agreement. So prerequisite substantive issue for negotiations has continually been rejected by the company and they have not wanted to enter into any negotiations with us. In relation to the claims in our bargaining period none of the claims are prohibited or illegal. Commissioner, as you would be aware it is not illegal to seek that an agreement specifies a fund for which employees super entitlements are paid into. Indeed it is in thousands of agreements that would have passed through any pre Work Choices test and the employees have sought that LUCRF Is their superannuation fund of choice that they wish to be reflected in the agreement.

PN33

None of the other claims are prohibited or illegal. We are quite happy to discuss the claims further with the company if they lack any clarity on any of the claims, but we say that the claims in and of themselves do not stop any application for a secret ballot. Thank you, Commissioner.

PN34

THE COMMISSIONER: Thank you, Ms Allison. Well, it's obvious from the submissions that have been made that there are issues in dispute between the parties in relation to this application. I therefore think that its appropriate that I proceed to the next part of this morning's hearing is about which is to program the hearing of the application and to issue any directions necessary in order to facilitate that hearing.

PN35

I note that the union has lodged with the application the affidavit of Mr Glover. Would the union require additional evidence or is that the evidence which the union is intending rely upon?

PN36

MS ALLISON: Commissioner, I just note the respondent is obviously raised issues regarding coverage.

PN37

THE COMMISSIONER: Yes.

PN38

MS ALLISON: It may be that we require the delegate here to give evidence in relation to work performed.

PN39

THE COMMISSIONER: Yes. Okay. Mr Baungartner, in relation to the hearing of these proceedings obviously you've outlined some of the submissions which the company would be intending to make in opposition to the order for a ballot being made. In relation to that have you any instructions at this stage as to what witness evidence, if any, the company would be intending to call?

PN40

MR BAUNGARTNER: It's probably a little difficult for me to say. I have not had an opportunity to speak to the company but more to the point if the matter is to be heard in Victoria then more than likely the company will have to seek alternative representation.

PN41

THE COMMISSIONER: Yes.

PN42

MR BAUNGARTNER: So, in the light I would imagine there will be witnesses, possibly one or two, but it is hard for me to say at this stage.

PN43

THE COMMISSIONER: Right. Okay. All right. It's very difficult,
Mr Baungartner, when you're not going to be the person doing this for me to discuss when we can set this down for hearing and what other requirements there might be. I don't wish to delay in the matter and as the union has pointed out the Commission is required to act expeditiously in relation to such applications. I'll also obviously need to notify the Australian Electoral Office which the union has nominated as being the returning officer in order to discuss with them any potential orders that might be made arising out of these proceedings.

PN44

I do have some time this Thursday to set the matter down otherwise I would not be able to set it down until Wednesday of the following week.

PN45

MR BAUNGARTNER: Commissioner, I think there are difficulties from the company's point of view.

PN46

THE COMMISSIONER: Yes.

PN47

MR BAUNGARTNER: It has its office in New South Wales. It will need to consult with its Victorian branch and needs of representation so I think Thursday from our point of view will be difficult.

PN48

MS ALLISON: Commissioner, we are available to proceed on Thursday and again I would indicate we believe that this particular matter needs to be dealt with expeditiously and the requirements of the Act indicate that as well.

PN49

THE COMMISSIONER: Yes. I have some difficulty, Ms Allison, with the company's position given that it's still a little unclear to me as to who is going to actually be representing the company in those proceedings and who they might need to call. I've got an affidavit from Mr Glover and I am sure that the union is prepared to proceed but the company also has to be given an opportunity to put their case as well. That is a matter which is concerning me in relation to this.

PN50

My preference would be issue directions for a hearing on the afternoon of Wednesday, 20 February and to include in that directions that any other witness evidence would be lodged with the Commission by Monday 18 February so that we can deal with the witness evidence fairly expeditiously and that outlines of submissions would also be lodged by that date. I think that gives everybody a chance, a fair chance, to be heard in relation to this.

PN51

There is also obviously the direction that is sought by the union in their material in relation to the notification of employees that such a hearing will be held and providing them with the opportunity also to appear and be heard if they so wish to do so. So those directions would also be issued in relation to a hearing on Wednesday 20th.

PN52

MS ALLISON: Commissioner, just in relation to directions, we've obviously heard an outline of what the company may raise.

PN53

THE COMMISSIONER: Yes.

PN54

MS ALLISON: But depending on what they do raise in written submissions will depend on what evidence we collect and we need from the site. So it would certainly be preferable from our point of view if the company were to lodge their arguments and witness statements prior to us having to collect witness evidence and put our response in writing.

PN55

MR BAUNGARTNER: We wouldn't agree with that. I mean we can't do it earlier than the 18th.

PN56

THE COMMISSIONER: I am prepared to give some latitude in relation to the material, if there is additional material that needs to be lodged, but I think that at the moment if all the material is lodged with the Commission and served on the other side by 12 noon on Monday 18th. If either party needs to call addition witness having received that addition material having received that is outlines of submissions and witness statements then they will have until - they will have another 24 hours to do that and the matter will then proceed at 2 o'clock on the Wednesday afternoon.

PN57

MS ALLISON: Commissioner, can I just indicate, the company does have management here in Victoria and it seems - - -

PN58

THE COMMISSIONER: Well, your notification, Ms Allison, gave the Sydney address which is why this matter was listed as it was listed. Now, if Victoria should have been notified to be here today then we should have been told that and we weren't so we notified who you asked us to notify. So if that has raised problems that's not a problem that I can address. I can only address that in terms of what directions are now issued and if you are asking that directions are issued to the company at his Melbourne address I am happy to do that.

PN59

MS ALLISON: I think that would be a wise step considering no one from Victoria has been notified it appears by the company.

PN60

THE COMMISSIONER: Yes, all right. Well, the matter will be adjourned for hearing of the application at 2 pm on Wednesday 20 February. There will be directions issued today in relation to that hearing. Those directions will include the directions sought by the union in relation to the notification of employees of the hearing. They will also include directions as to lodging of outlines of submission and witness statements by 12 noon on Monday February 18th with liberty for either party to adduce additional witness evidence which must be lodged by close of business on Tuesday 19th in response to that material they deem that necessary to do so.

PN61

Otherwise the matter is now adjourned for hearing at 2 pm on Wednesday
20 February. Thank you.

<ADJOURNED UNTIL WEDNESDAY 20 FEBRUARY 2008 [10.19AM]