BP2008/347, Transcript of Proceedings [2008] AIRCTrans 795 (8 December 2008)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 19455-1

COMMISSIONER GAY

BP2008/347

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

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
and
Silcar a partnership of Thiess Pty Ltd and Siemens Ltd
(BP2008/347)





Melbourne

9.33AM, TUESDAY, 25 NOVEMBER 2008

Continued from 20/11/2008

PN1

MR G BORENSTEIN: I appear for the CEPU.

PN2

MR F PARRY: I seek leave to appear for Silcar. With me is MS D OBERDAN. If the Commission pleases.

PN3

THE COMMISSIONER: Yes, Mr Parry. What do you say about Mr Parry's application, Mr Borenstein?

PN4

MR BORENSTEIN: We won't object against the upgrade of the other party. No offence to Mr Parry, of course.

PN5

THE COMMISSIONER: Yes. Leave is granted, Mr Parry.

PN6

MR PARRY: Commission pleases.

PN7

MR BORENSTEIN: Commissioner, as advised I think on Friday the Commission would have received correspondence as well that the employer was seeking to make objections to the ballot order on the basis of genuinely trying to reach agreement. I have had some conversations with my friends and as I understand it there is no objection to the ballot order on the preconditions set out in the Act. There is an application for an adjournment which I will let Mr Parry detail to the Commission. Save to say that we are pressing our ballot order and on the basis that all the statutory preconditions have been met and I might address those once we've dealt with Mr Parry's application for adjournment.

PN8

THE COMMISSIONER: Yes, all right. Thanks, Mr Borenstein. Yes, Mr Parry.

PN9

MR PARRY: Commission pleases. The primary application we make today is for an adjournment of the application for the secret ballot and we seek that adjournment until either the afternoon of 12 September or Monday, 15 September. Now, subject to what happens with that application there are applications and submissions we would make about any ballot order and the form and the contents of it in any event.

PN10

THE COMMISSIONER: Yes.

PN11

MR PARRY: To give a background to why we say firstly there is merit in the granting of an application and secondly the powers and discretions of the Commission, we have prepared a statement of a Lawrence Wondmaker with some attachments and if I could hand that up to the Commission. And I'd indicate that Mr Wondmaker will be called.

PN12

THE COMMISSIONER: He is in?

PN13

MR PARRY: Yes.

PN14

THE COMMISSIONER: Yes. I'll mark this, all these materials?
Mr Wondmaker's statement and attachments to it?

PN15

MR PARRY: Yes, there's a number of attachments.

PN16

THE COMMISSIONER: Yes.

EXHIBIT #S1 WITNESS STATEMENT OF LAWRENCE WONDMAKER AND ATTACHMENTS

PN17

MR PARRY: Now, I'm not sure whether any of this is contentious or not. We would assume not, but anyway. The particular relevant parts, Commissioner, are that this concerns Silcar which is an entity performing work at BlueScope Steel down in Hastings. The later parts of the second or the third paragraph refers to the existence of other industrial agreements down there that have been the subject of extensions. The Commission would be aware that where there are pre reform certified agreements the extension of them under schedule 7 clause 2(a) they can be extended subject to certain conditions. We'll get to that in a bit more detail shortly, Commissioner. So there have been other extensions of certified agreements down there.

PN18

Paragraph 4 deals specifically with the electrical employees and there are 80 odd electrical employees working a couple of shifts and also some apprentices. The current electrical trades agreement referred to in paragraph 6 is attachment number 2. Now, that agreement the Commission might note was an agreement made under section 170LK of the preceding or the Act as it was prior to the amendments in March 2006. That is it is an agreement between Silcar and the employees. And that agreement was made and the Commission will see from paragraph 10 in the context of a fairly major industrial dispute at the site.

PN19

THE COMMISSIONER: I seem to remember that. I think I might have sat on a Full Bench that dealt with some aspect.

PN20

MR PARRY: Yes. There were a number of Commission proceedings that I call.

PN21

THE COMMISSIONER: Yes, I'm sure, yes.

PN22

MR PARRY: I think there was a picket and various other. It was a fairly solid dispute as one might say. But out of all that mix came an LK agreement, an agreement between Silcar and the employees and the Commission might note then over the last few months there have been a number of discussions. The Commission will see that that agreement expired just under a month ago, on 28 October. There have been a number of discussions over the last few months between Silcar and the employees about trying to discussing the option of extending the existing agreement and there's been some additions made and
Mr Wondmaker has the view that the feedback has been generally favourable and the existing agreement is well understood and has worked well.

PN23

That agreement draws in large part on the BlueScope Site Award. Now, the Commission will also note in paragraph 9 that there is a mixture of union and non union members amongst Silcar's electrical employees. And whilst it's speculative, that's likely to have been a bit of a consequence of the dispute that did occur down there. And the Commission might note that the history on site has been agitated a little bit by more recent events and that's set out in paragraph 10. Now,
Mr Wondmaker expresses the view that Silcar would like to give the electrical trades employees an opportunity to vote by secret ballot on extending the existing pre reform agreement as well as providing an opportunity for minimal changes that is serving, he says, the parties well. He wants the secret ballot because, as he describes it, that would accommodate industrial tensions and he says they want to undertake this process before the opportunity so is barred by the exclusions set out in schedule 7.

PN24

What Silcar has then done is then set out in paragraph 12, that is they have engaged the Australian Electoral Commission to ask employees to vote on whether they wish to extend and vary the existing agreement on the basis of an offer and the Commission might see the proposed timetable for that. And LW3, Commissioner, that's about five or six pages from the end.

PN25

THE COMMISSIONER: Yes, I've got that.

PN26

MR PARRY: And the Commission will see that there has been a quote provided and the preceding part of that deals with a letter from the AEC. That's W3 providing the quote setting out the mechanism by which there is to be a vote. The creation of a role of voters and then the process for the voting to take place. The Commission will see it's to be a postal ballot to commence on 1 December, just under a week's time, and to close on 12 December and the results to be counted and cleared that day. Now, Commissioner, that is where the date that we propose the adjournment comes from, that is either late on the day of the announcement of the vote or the following Monday.

PN27

Now, that's a broad background. Now, that ballot is to be a ballot of all employees to be covered by the proposed agreement and that obviously includes members and non members of the CEPU. Now, if that ballot were successful then there would be an application made to extend the agreement. Amended for those various improvements that Silcar is offering the employees. Now, if I could take the Commission to schedule 7 clause 2A to the Workplace Relations Act.

PN28

THE COMMISSIONER: Yes, go on Mr Parry.

PN29

MR PARRY: The Commission might see that there can be an application made by any person bound by a pre reform certified agreement to extend the nominal expiry date or vary the terms. Now, that is an application that can be made by Silcar or the employees. Subparagraph (2) deals with before making the order the Commission must be satisfied of some matters. That is firstly:

PN30

(a) all parties bound by the agreement genuinely agree to the extension or variation.

PN31

Now, if the employees vote in favour of the extension or variation then it will be taken that the employees, being the parties to the agreement, have agreed to the variation or extension so in the event that the employees don't vote there would be no application, they don't vote in favour of it. The part (b) deals with something that the Commission must be satisfied of which is of particular relevance to our application today, that is that none of the parties have after the introduction day organised or engaged in or threatened to organise or engage in industrial action in relation to another party of the agreement or apply for a protected action ballot under section 451.

PN32

Now, the CEPU has applied for a protected action ballot, but the CEPU is not a party to the agreement. Therefore there has been no application by a party to the agreement under (b)(ii) for a protected action ballot therefore that does not preclude the extension. However (i) refers to:

PN33

None of the parties have after the introduction day organised or engaged in or threatened to organise or engage in industrial action in relation to another party to the agreement.

PN34

And of particular relevance to us in that part which requires that none of the parties have threatened to engage in industrial action in relation to another party. Now, the parties as we say are the employees and Silcar. If the employees threatened to engage in industrial action then the agreement can not be extended. Now, we do note that to do that I think subsection 4 of 2(a) refers to a valid majority of the employees bound and we would read the clauses that if a valid majority of the employees bound by the agreement threaten to engage in industrial action then the agreement can not be extended. That would be the way we would read that.

PN35

Now, to date as we say the application by the CEPU does not affect the power to extend, however the CEPU had made an application for a secret ballot and if that application was granted as sought then a ballot must be held. If that ballot approves the taking of some industrial action then a majority of union members has endorsed industrial action. Now, section 478(1) of the Act provides for the effect of a ballot and that provides if it is approved then it is protected action if in subparagraph (d) the action commences during a 30 day period beginning on the date of the declaration of the ballot. So people that are voting on this if approved are approving the commencement of industrial action within 30 days of the declaration of the ballot.

PN36

And it seems to Silcar a good argument to the effect that a vote of the union members in favour of industrial action could be said to constitute a threat to engage in industrial action by all the employees covered. Now, that is complicated by the fact that the two voting pools are different. That is those voting in favour of the industrial action are union members of the CEPU, those voting for an extension are all employees covered by the agreement. So there's a different pool of voters. However, as we understand it we don't know who are members and who are not, but it may be a reasonable inference that the majority are union members.

PN37

Now, it would appear to be the case that that majority of union members could then vote in favour of industrial action and remove any discretion the Commission will have to extend the agreement even if a majority of the employees agree. Now, we say to vote in favour of the ballot does constitute or could be said to constitute a threat and we say that this isn't something you need to rule on as a fact within the context of this application. But to recognise that there is a very real argument that if there is a vote in favour of a ballot it will preclude the Commission being satisfied that it can extend the agreement. Now, the issue of what is a threat I suppose comes about there's a few authorities on what threat is an the one most referred to is a decision I think of a Full Bench - I'm sorry - a full Commission of the federal court from 1959, as would be the way, of Gietzelt and Others v Craig Williams and if I could hand up a copy of that to the Commission.

PN38

As is the way of the world what has been copied is Gietzelt (No 2) and not Gietzelt (No 1). I think I can still - if I could hand up Gietzelt (No 2) to the Commission. I think from my recollection Gietzelt (No 2) refers to Gietzelt (No 1). Yes. Gietzelt (No 1) which was reported in [1959] 1 FLR 456 is then followed the next case in that series on page 465 and obviously they concern a similar set of matters. And the relevant part is the reference to threatened which in Gietzelt (No 2) is on page 467 about three quarters of the way down the page referring to Costello's case. Does the Commission see that?

PN39

THE COMMISSIONER: Yes.

PN40

MR PARRY: In his decision in Costello's case his Honour the Chief Judge said section 5, that was the precursor to part 21 or part 10(a) of the freedom of association provisions. So we recognise it's a different statutory context, but it says threaten is I think equivalent to express an intention to or say he will. When the employees vote in favour, if they do, of the taking of industrial action they are within the context of this Act saying they will take industrial action. There is the intention. Indeed they are saying within 30 days they will take industrial action. Now, that sort of immediacy was recognised by Gyles J in United Collieries v CFMEU [2006] 159 IR 103. And if I could hand up a copy of that to the Commission.

PN41

THE COMMISSIONER: Thank you.

PN42

MR PARRY: And his Honour said on page 109 when looking at this 30 day limit and what its purpose was he said in paragraph 21:

PN43

In my opinion -

PN44

At the end of the last couple of sentences:

PN45

- the purpose of the provision is to ensure that the employees are voting upon a real proposal based upon relatively contemporaneous circumstances a commitment to relatively prompt action is involved rather than simply giving an authority which can be held up the sleeve of those negotiations with the employees.

PN46

So we would say consistently with his Honour's observations that if employees vote in favour of the taking of industrial action they are giving a commitment to relatively prompt action. And in those circumstances that would, in our submission, very arguably be said to be an intention to take industrial action. Now, if that were the case that there was the vote and that would mean there is a very real possibility that this group of employees voting in favour of industrial action would preclude the extension of the agreement if the larger group of employees voted in favour of the extension. Now, to remove this very real possibility we seek an adjournment of the hearing of this application to either late on Friday the 12th or Monday the 15th.

PN47

This would allow the results of the ballot to then be known. If in favour of the extension there would be an application to extend the agreement, if against the other application for a secret ballot would proceed. Now, the Commission is aware that this particular part of the Act has certain provisions about expeditious hearing timeframes and so forth. Now, we make this application for an adjournment under section 458. Now, section 458 says a party, which we are, may make submissions, may apply for directions relating to an application for a ballot order. So we are making an application for a direction that an adjournment occur.

PN48

The Commission has the power to make an order adjourning under section 459. The Commission may make:

PN49

Orders or give directions in connection with an application for a ballot order.

PN50

And subsection (2) is particularly relevant as well in reading this, without limiting subsection (1). So subsection (1) is a broad discretionary power. The Commission may make orders aimed at ensuring that the protected action is conducted expeditiously. Nothing remarkable about that. Now, the application that we make is also relevant to section 457. Now, 457 is worded in a curious way. The Commission will see section 457 refers to exercising its powers under the division. The Commission:

PN51

(a) must act as quickly as is practical.

PN52

And that is identical wording to section 108 of the Act which is about the general powers of the Commission:

PN53

(b) must as far is as reasonably possible determine all applications made under this provision within two working days after the application is made.

PN54

Now, some read that as only limited to applications for a ballot order. Obviously that reference there to "all applications made under this division" is far broader. Indeed when the parliamentary drafts people want to limit the provision to an application for a ballot order, they actually say so. For example, the Commission might see in subparagraph (2) an application for a ballot order in section 458. That's a reference in respect to an application for a ballot order, 459 an application for a ballot order, 460. But it's fairly clear that there can be other applications made under this division and that's why the parliamentary draftsman has said in 457(1)(b):

PN55

All applications made under this provision have to be determined within two days.

PN56

Now, that means firstly that our application for an adjournment being made an application under this division has to be, as far as is reasonably possible, dealt within two days after the application is made. Now, with regard to our application for an adjournment what considerations apply to the exercise of the Commission's powers? Now, the Commission might note in the section of the Act that we have there is a note under (i) and that looks back to the Commission in exercising its powers is also required to act according to equity, good conscious, merits without regard to technicalities and so forth. Now, the Commission would be aware that I think at section 13 of the Act's Interpretation Act says notes don't form part of the Act.

PN57

However, the Act is very explicit as to what the Commission must have regard to in exercising any powers under the Act and it is section 103 of the Act. The Commission will see that the Commission has to take into account the public interest and specifically we say in the performance:

PN58

In the performance of its functions a Commission must take into account the public interest and for that purpose must have regard to (a) the objects of this Act.

PN59

So it's compulsory when considering this adjournment application that the Commission have regard to the objects of the Act and we say when one goes to the objects of the Act they have particular relevance to the circumstances that are before the Commission in the present matter. That is section 3 the principle object has provided the framework of workplace relations and I draw the Commission's attention particularly to:

PN60

(d) ensuring that as far as possible the primary responsibility for determining matters effecting the employment relationship rests with the employer and employees of the workplace or enterprise level; (e) enabling employers and employees to choose the most appropriate form of agreement for their particular circumstances; and (i) balancing the right to take industrial action for the purposes of collective bargaining at the workplace level with a need to protect the public interest and appropriately deal with illegitimate and unprotected industrial action.

PN61

So in exercising its powers the Commission is required to obviously take those considerations into account. The Commission is also required to, as the note says, section 110(1)(a) the Commission has a discretion and must act according to good conscious, merits without regard to technicalities. Manifestly, not that I think this would be in debate, section 111(1)(i) gives the Commission the power to adjourn the proceeding to any time and place. So there is clear power in the Commission to adjourn this matter. It is not in any sense compelled to determine the application within two days. It is a discretion to be guided by certain matters in the Act that the Commission must have regard to and we do emphasise those particular objects that I've taken the Commission to which leave the matter to employees and employers to choose the most appropriate agreement for their circumstances.

PN62

Now, we say adjourning this proceeding is totally consistent with the proper exercise of that discretion. It would create a circumstances where the employees could make a free and unfettered choice as to whether they want to extend the agreement or not. It would not have running at the same time another ballot or another argument which may well come before it in time which would remove that option. It does - the application would remove the real chance that that option would be taken away from employees and it does not prevent the application for a ballot proceeding and being dealt with by the Commission and in a practical sense delays it for a period of two weeks to enable the other ballot to proceed of that larger pool to approve or not approve the extension.

PN63

Now, that's our application today. We do indicate that if the Commission was not minded to adjourn the application we would want to make other submissions about the application for a ballot and they are very broadly and we will obviously expand on those if that becomes necessary, that the time frames for any ballot for industrial action should accommodate the conduct of the extension ballot. We would be saying there it would be highly desirable there be any overlap. We would also be submitting that given the history of this site it would be appropriate that there be a postal ballot and in the circumstances an attendance ballot would not meet the circumstances, not meet the objects of the division. And there is one other matter that I think concerns one of the aspects of the industrial action which we have said is ambiguous and understand would be the subject of an application to vary the application in any event.

PN64

THE COMMISSIONER: Yes.

PN65

MR PARRY: Now, that's our application. If the Commission pleases.

PN66

THE COMMISSIONER: Yes, thanks Mr Parry. Yes, Mr Borenstein, how do you want to proceed with that?

PN67

MR BORENSTEIN: Commissioner, we would say that granting such an application would be inconsistent with the operation of the division of ballot orders. As my friend dealt with and made attempts to get around, section 457 does require the Commission to act as quickly as practicable and as far as reasonably determine the application within two working days after the application is made. We are after two days, but we've had more than two days.

PN68

THE COMMISSIONER: Reasonably possible.

PN69

MR BORENSTEIN: Yes, reasonably possible.

PN70

THE COMMISSIONER: Yes.

PN71

MR BORENSTEIN: And we would say it is reasonably possible for the Commission to determine the matter today. And in subsection (2) it provides where the Commission must not determine the application and both those preconditions are not relevant. So there is no hurdle or no wall in front of the Commission to not determine the matter. In respect of section 459 the Commission does have the powers to make orders or directions in connection with the ballot order, but you will see subsection (2) gives the indication of what those types of direction orders are aimed at and they're aimed at having the ballot done as expeditiously as possible. That's an indication of why parliament has included those provisions in there.

PN72

And you will see in subsection (3) and again gives an indication of what parliament was thinking and it talks about having the desirability of the ballot results being available to parties within 10 days after the ballot order is made. So these are express provisions in the division, in the part and the division sorry, that deals with secret ballots on proposed protected action. And no amendment to these provisions has been made despite the inclusion of schedule 7 dealing with the transitional arrangement. And if there had been any intent of parliament to say that we want the Commission to hear these things as quickly as possible and make the orders as quickly as possible, however if there is the possibility of a transitional agreement, we put the brakes on, it would have been in there.

PN73

But they haven't put it in there and we say that that shows the intent of parliament not to make ballot orders subject to some ..... from my friends, but the transitional agreements. Now, an extra, I suppose, issue - - -

PN74

THE COMMISSIONER: What was that point? You say the descriptor of
Mr Parry's argument, but therefore the ballot orders - what was your point I'm sorry?

PN75

MR BORENSTEIN: Sorry. There was no intention of parliament to put the brakes on the Commission because they haven't expressly included it in provisions - - -

PN76

THE COMMISSIONER: Yes, I follow that. It was really the point you next made. Nevertheless, move on.

PN77

MR BORENSTEIN: I can't remember.

PN78

THE COMMISSIONER: No.

PN79

MR BORENSTEIN: Hopefully the transcript will - - -

PN80

THE COMMISSIONER: The transcript always shows these things.

PN81

MR BORENSTEIN: There is also the issue that the access to schedule 7 may well be lost in any event. It's the proposed employee collective agreement by Silcar has been put to the employees twice during the negotiations. Silcar requested that it be taken to the employees for endorsement or refusal and votes were had and the union took it to the employees and the agreement was voted down. At these meetings, at the last meeting - - -

PN82

THE COMMISSIONER: Is this during negotiations which I take it are occurring in recent times?

PN83

MR BORENSTEIN: Yes, in recent times. This happened in I think early November was the last when the company requested the union take the agreement back to the employees again for another view. And the company actually, and the minutes show it, that the company requested that the union tell them that this is the best offer that the company can put, this is the best offer available. So the union took that back, the employees and the members voted it down and at this meeting I am instructed by the organiser, Colin Williams, that he said he raised the issue of making an application or a ballot order and got the endorsement of the employees to make that application. So in that situation I would have thought there'd be a real argument, and that's an argument for a Commission in the end of the day if there is some transitional agreement, but whether or not industrial action was threatened by the employees endorsing the CEPU filing an application for a ballot order.

PN84

But I don't think we need to get into that in this application, Commissioner. I think this is a clear delay tactic. The company has had ample time to put forward an employee collective agreement to its employees and they have chosen not to do so. That's their decision. But it shouldn't be - members of the CEPU should not be prevented from taking industrial action and exercising their rights under the Workplace Relations Act.

PN85

THE COMMISSIONER: It strikes me that, if I've understood your account of the narrative, what Silcar have done is request the ETU and you have been complying that this is right twice.

PN86

MR BORENSTEIN: That's correct. And I might - I was unaware of what the objections were going to be today. I was, based on the facts, I was preparing for a trying to reach agreement argument, which is no longer being pressed.

PN87

THE COMMISSIONER: In fact I was going to say to you, Mr Borenstein, at the outset but you seemed to be very content to push ahead. Would you be assisted by a very brief adjournment?

PN88

MR BORENSTEIN: No.

PN89

THE COMMISSIONER: To prepare your reply? I don't know whether you've had the opportunity to speak with Silcar or their legal advisor.

PN90

MR BORENSTEIN: Five minutes before the hearing. But I'm happy - - -

PN91

THE COMMISSIONER: Well, if you're content.

PN92

MR BORENSTEIN: I'm content to proceed.

PN93

THE COMMISSIONER: Very well.

PN94

MR BORENSTEIN: I might hand up a copy of at statement that was prepared for the genuinely trying to reach agreement, but it contains the minutes of the meetings that were prepared by Silcar.

PN95

THE COMMISSIONER: Yes. Now, you understand that that is the argument? That there is to be an argument? Certainly appreciating Mr Parry's very brief summary of what is to be put in his alternative submission, it really is to accommodation within anything that's done were an order to be granted for the extension, if I understood him correctly, the need for an attendance ballot - I'm sorry, a postal ballot - and ambiguity about one point.

PN96

MR BORENSTEIN: As I understand it there's going to be no issue of going genuinely trying to reach agreement.

PN97

THE COMMISSIONER: All right. Well, it's question for Mr Parry. So what's the value of this one? This shows the minutes of meetings and what can I understand from that?

PN98

MR BORENSTEIN: If I can take you to the ..... it's page ..... I can take you to, I don't know if your numbering is cut out at the bottom, it's page 234. If you go, if you ignore the attachments that have numbers down the bottom. Some are cut off. I'm not sure if Mr Parry has got the original version which makes it a bit easier.

PN99

THE COMMISSIONER: Yes.

PN100

MR BORENSTEIN: These are the minutes prepared by Silcar and if you go to page 234 the company, at that meeting, the company indicated that the conditions are worsening the economy and they wanted to put their version to the members and so at point 7 the EBU, which was the employee bargaining unit which involved the ETU, was to meet with the members once they had received the company's marked up draft agreement. So that was on 2 October, I think.

PN101

THE COMMISSIONER: It speaks of 16 October.

PN102

MR BORENSTEIN: 16 October. And in following that on the meeting of 2 November it was again requested, I believe, I can't remember exactly, but on 2 November ..... on 2 November it was agreed again for the unions to take the document back to the employees for one more meeting to see if they would accept it on the advice that it was the best offer available and that is set out somewhere. I just can't locate it at the moment. But I'm pretty sure that's in the minutes of 2 November. 6 November. I don't know why those minutes aren't here, but on 6 November the minutes reflect that the ETU and the members were to take the document back and advise the members it was the best offer available.

PN103

THE COMMISSIONER: That's what you referred to.

PN104

MR BORENSTEIN: Yes, that's what I've referred to.

PN105

THE COMMISSIONER: Silcar made a request and the ETU, CEPU acted on it.

PN106

MR BORENSTEIN: That's right. So in that situation where employees have rejected it and employees, on my instructions, have endorsed this application, the ability for a schedule 7 agreement extension to be done is questionable in any event. So, Commissioner, we say that there was just no reason why the ballot as applied for this ballot for protected industrial action should not go ahead as per normal. And consistent with that is the wording of section 461(1) which makes it a mandatory requirement for the Commission to make the order if it is satisfied of subsections (a), (b) and (c). And based on the material that I provided to you there is no doubt that they are satisfied and the employee is taking no issue with that.

PN107

And there is limited discretion to refuse in subsection (2) and that is the granting of the application would be inconsistent with the object of this division and there has been no submission made as to that and the objects of the division are clearly satisfied. And that the applicant or employer at any time contravened a provision of this division or order or direction and that's not relevant either. So that sets out the questions that the Commission is to ask itself. It is not subject to any considerations of schedule 7 and therefore we say it would be a very unfair result if the Commission were to delay the conduct of the protected action ballot because the company thinks no we want to have our agreement determined first.

PN108

The company puts up its agreement and says ours should take precedence over the protected action ballot. And so there's just no policy for that whatsoever. And to the contrary if the employer is genuinely to say well we'll hold off on our ballot of our agreement until we see what the secret ballot states, if the secret ballot is refused then there's still the schedule 7 agreement, when if the ballot is approved well then they can't and they can get an indication that way. Maybe that's a fair way of doing it. But we say this is just a deliberate tactic by the company to try and delay the ballot order and frustrate the operation of this division. And there is no justification or intention of parliament to do such a thing.

PN109

We submit that the division is clear on what question the Commission is to ask itself and we seek that the Commission ask itself those questions and the answers to those questions are clear in our submission. In respect of the other issues
Mr Parry raised should the adjournment not be granted, regarding the attendance or postal ballot we are happy for it to be a postal ballot. So we are happy for it by consent to amend the application.

PN110

THE COMMISSIONER: Well, I don't know that I want to require you to deal with that because Mr Parry really didn't develop his position there.

PN111

MR BORENSTEIN: I think most of the issues there I think can be fixed by agreement. In respect of the timeframes, though, we would say that the timeframe should be as per the Australian Electoral Commission's guidelines, taking into account that it's desirable for the ballot results to be available within 10 days after the ballot order is made as per section 459(3). There's a decision of ..... sorry. Unless the Commission has any further questions we would seek the Commission refuse the adjournment application. There's one more issue, is that ..... even though we say it's, the issue of schedule 7 is just not relevant to the ballot order process under division 4 part 9.

PN112

The company is not pointing to any prejudice any employees suffer should they not have a schedule 7 agreement and there is certainly no financial or monetary prejudice to any employee and the only prejudice that is most likely to be suffered would be to the union because it's really ..... prohibited content is basically targeted at things that would give benefit to the unions, such as right of entry, and these provisions generally all focus at rights of unions, not on actual benefits to employees. So there is certainly no monetary or financial prejudice to employees. And we also say that there are no employees that come along here to make any submissions supporting the company's position and under section 458(1) such employees do have that ability and none of them have come here and we say that carries a fair bit of weight when the Commission is deciding what's appropriate to do in the situation. So unless the Commission has any further questions.

PN113

THE COMMISSIONER: Yes, thanks Mr Borenstein.

PN114

MR BORENSTEIN: Thank you, Commissioner.

PN115

THE COMMISSIONER: Yes, Mr Parry.

PN116

MR PARRY: Commission pleases. The circumstances in this matter are not typical. It is an unusual circumstance where there is an LK agreement, where there have been discussions about extending it with the employees and we say, and I think my learned partner's first point was that there's nothing in the Act to show any intent, I took the Commission to the powers of the Commission and the considerations, is to show that the particular circumstances of this case in effect have been dealt with by the legislature. The objects of the Act do make the primacy for making these decisions at the site and leave the decision to employees.

PN117

That's what the provisions of the Act and the discretions the Commission has are described in the detail they are. There is nothing in division 4 which removes those discretions or - - -

PN118

THE COMMISSIONER: If you are going to didactics I would have thought generally in division 4, Mr Parry.

PN119

MR PARRY: Didactics?

PN120

THE COMMISSIONER: Yes. Musts and must nots. If you are looking for exercise of or reposing of discretion in a body, it might not be where you'd initially turn. Well, it's true of course that there is much discretion in the principal objects, but in this, in division 4, I would have thought they are significantly curtailed.

PN121

MR PARRY: Well, I did take the Commission to section 458.

PN122

THE COMMISSIONER: Yes.

PN123

MR PARRY: You can ask for directions. We make an application. Section 457 means all applications have to be dealt with within two working days. That means our application. And presumably you're dealing with our application now. Now, your application and the decision or the discretions you take into account are guided by section 103 and those earlier parts of the Act and the objects of the Act. So one can't, and indeed the note makes fairly clear, that the exercise of these discretions dealing with our application should take into account a variety of matters. So the must happily applies to our application for an adjournment as it applies to any other application made under the division including for a ballot order. So we don't say that there's any removal of discretions at all. Now, so the Commission has power. The Commission can take into account obviously the scheme of this part, but also the provisions of the Act as we have taken the Commission to. Now, it doesn't seem to be that the argument against us is that you don't have power to do it or that it's not something that is within the scope of your powers to do, it seems to be a range of other matters which are discretionary.

PN124

Certainly there is nothing in the Act to show any intent that you have to deal with this. Secondly it's said against us that this is a delaying tactic.

PN125

THE COMMISSIONER: Well Mr Parry, before you move off that point. What about section 461 which is relied on?

PN126

MR PARRY: Yes, that's when you come to deal with the application. 461 doesn't take the matter anywhere. When you come to deal with the application for a ballot order you follow 461. We're not at 461 yet.

PN127

THE COMMISSIONER: An application for a ballot order.

PN128

MR PARRY: There is an application for a ballot order, there is an application for an adjournment of the hearing and determination of that.

PN129

THE COMMISSIONER: Yes.

PN130

MR PARRY: If the Commission was to grant our application for an adjournment, when the matter came before the Commission then 461 would apply.

PN131

THE COMMISSIONER: It strikes me that in considering the exercise of the discretion in relation to an adjournment I can't be unmindful of section 461.

PN132

MR PARRY: We would say that 461 is not relevant to your consideration in respect of an adjournment. Our application for an adjournment is under 458. If you do so you can take into account 457 which talks about determining all applications. But section 461 is when you come to determine the application. And when you come to determine it, you must grant it in certain circumstances and you can refuse it in other circumstances. But that comes to consideration if you either refuse our application or your adjournment our application to a date when you would then be required to consider section 461. So we would say it would be in error to give weight in this proceeding to section 461.

PN133

That really comes about when you're exercising your powers to determine the application. So I can't take that further. That's my submission with regard to that.

PN134

THE COMMISSIONER: Yes.

PN135

MR PARRY: Now, as far as a delaying tactic can we say as the material if
Mr Wondmaker makes clear there has been discussions going on about this matter for some period of time and that's the extension, as we have said, in paragraph 7 about discussions with the employees about extending the existing agreement. Now, so there has been ongoing discussions. So the agreement itself expired, as we say, on 28 October. That's just over three weeks ago. It's not as though people have been sitting on their hands with regard to this matter. The Commission will be well aware that there is a variety of bargaining periods extending months and months after the termination of industrial agreements and to criticise Silcar for asking for a two week adjournment which would come into effect, I imagine, less than three weeks after the actual agreement expired shows fairly a degree of urgency, we would submit, about dealing with these matters.

PN136

It is not a delaying tactic and there is nothing that can be put forward to effect that. Now, there have been discussions going on with the union. As we understand the union's position has been that it wants, its position has been I think my note of some of those meetings I think is that they weren't prepared ..... the minutes, well my learned friend referred to some minutes. My instructions are the employees indicated they weren't prepared to negotiation anything less than the terms and conditions specified in the ETU draft agreement. So the union's response was they weren't prepared to negotiate anything less and the employer's position was we would like all the employees that would be covered to have an opportunity to approve or not approve this agreement.

PN137

Now, some of the arguments put are stretching the matter a bit, we would say. We would say it's a very weak argument that a vote of CEPU members for an application to be made for a secret ballot would constitute a threat within the terms of section 2A of schedule 7. So we think that's a very loose argument. We also say that there is no unfairness in our application. The unfairness comes about on our side from the removal of the pool of employees of the option of extending the agreement. There is no unfairness to the union or the members in a two week delay in their right to commence industrial action. That's a balancing exercise. Whether you remove the rights of the pool of employees or arguably remove the rights of employees to extend if they want as against the right of the union to commence earlier industrial action and run a ballot the same time or overlapping with a time of a ballot when people are being asked to approve an agreement.

PN138

So it's a balancing exercise and we say in those circumstances the fairest balance would be to adjourn this application. Commission pleases.

PN139

THE COMMISSIONER: Yes, thanks Mr Parry. I propose to adjourn just for a brief time. It's my intention to give an indication of my response to the application for adjournment shortly. I do want to take some time to have a closer look at the material that has been provided for in S1.

PN140

MR BORENSTEIN: Commissioner?

PN141

THE COMMISSIONER: Yes, Mr Borenstein.

PN142

MR BORENSTEIN: Just in respect of the position of the, as reported by
Mr Parry, it's paragraphs 22 and 23 detail the report back of what Mr Williams said and the minutes aren't right on that point. We never said we're not going to negotiate less and that document I think was a bit of a self serving minute writing in that situation. Paragraphs 22 and 23 of my statement set out what was advised back to the employer.

PN143

THE COMMISSIONER: Yes.

PN144

MR BORENSTEIN: And that is that - I'll let the Commission read.

PN145

THE COMMISSIONER: Yes. Perhaps I should have indicated I will read your statement too, Mr Borenstein. It struck me it's purpose was directed, though, to an objection which hasn't been made today, but I will read that. I'll adjourn for half an hour.

<SHORT ADJOURNMENT [10.38AM]
<RESUMED [11.21AM]

PN146

THE COMMISSIONER: It's preferable in my view to indicate my position as to the application of Silcar for the adjournment of the CEPU ballot order application. I note that there are some 83 employees affected. Negotiations appear well underway for the renewal of the expired Westernport Site Electrical Agreement Silcar 2005-2008. Though I don't intend to set out the competing arguments, the circumstances of industrial affairs at this site of course are detailed and they are better known to the parties in any event. And I also wish to indicate that in setting out my response to the application for an adjournment I wouldn't want it thought that I am endeavouring to set out any overall approach in relation to the capacity of a party in the circumstance of Silcar to make an adjournment application.

PN147

In considering the argument, and rather I am considering the particular circumstances arisen in this case, in considering the argument put for Silcar I have determined not to grant the adjournment sought. Mr Parry draws attention to the typicality of the situation of Silcar, that is of the prospect of an application arising from schedule 7 occurring within or in the context of negotiations for the renewal of a union collective agreement and the Commission might not deal with a section 451(1) application or would adjourn its hearing pending the outcome of the vote of employees considering the company's variation and extension proposal. I am mindful of subsection 2(a)(ii).

PN148

I have also considered the CEPU's submission that schedule 7 does not provide any indication of a parliamentary intention as to schedule 7 operating and I think the term used was to "put the brakes on" or to intrude on the opportunity available to a bargaining party to see a protected ballot order. Now, given the injunction to the Commission in sections 457, 461 and 462 and elsewhere in division 4 to act so promptly and to grant an application subject to 461(1)(a), (b) and (c) the CEPU can, in my view, seek for the Commission to act on its application and in doing so not grant a place to schedule 7 by granting an adjournment in the particular circumstances of this case where there is no indication that to do so accords with a proper application of bargaining under the Act.

PN149

This isn't to deny that on occasion one might take that course. It is also, though, to say that the possible tension between schedule 7 and division 4 as the parties may seek to advance their own interests is clearly apparent and there is nothing to say schedule 7 ought to be preferred once an application under division 4 is before the Commission. Now, that is not to deny that, as I've said already, that one might not grant an adjournment, but I decline to do so on this occasion. And it then becomes necessary to hear the application made by the CEPU pursuant to section 451(1).

PN150

Now, I grant the parties an adjournment now if that's sought? Are you able to push on, Mr Borenstein?

PN151

MR BORENSTEIN: I am happy to push on, Commissioner.

PN152

THE COMMISSIONER: Yes. Mr Parry?

PN153

MR PARRY: Well, I'll hear the application first before I make any application.

PN154

THE COMMISSIONER: Yes, very well.

PN155

MR BORENSTEIN: Well, Commissioner, I have handed up a statement previously in this matter. It's a statement of Geoffrey Borenstein, myself.

PN156

THE COMMISSIONER: Yes. Perhaps I'll mark some of these. I haven't marked those?

PN157

MR BORENSTEIN: It might be worth marking that.

PN158

THE COMMISSIONER: We got onto it so speedily this morning that I didn't, other than Mr Wondmaker's material. And are these all attachments,
Mr Borenstein?

PN159

MR BORENSTEIN: They're attachments referred to in the statement.

PN160

THE COMMISSIONER: Yes.

EXHIBIT #CEPU1 STATEMENT OF GEOFFREY BORENSTEIN

PN161

MR BORENSTEIN: Thank you, Commissioner. On the facts set there in that statement it's clear that the statutory requirements as set out in division 4 of part 9 are made out and there is no dispute apart from that on the basis of the employer. And so on that basis the requirements of section 461 are met. And all the other requirements are met, i.e. there has been an application made during the bargaining period, the application was made after the nominal expiry date, the application is by an organisation of employees - - -

PN162

THE COMMISSIONER: Mr Borenstein, I think it might be useful in going through it, that's not to say we won't come back on the record, but it might be more efficient use of time to do this in a conference and see where the contest lies or any other, what the position is to be which are set out - - -

PN163

MR BORENSTEIN: Happy to do that, Commissioner.

PN164

THE COMMISSIONER: I haven't yet given your statement close attention.
Mr Parry, is Silcar prepared to participate in a conference now on the basis we can go back on the record?

PN165

MR PARRY: Yes, that's fine.

PN166

THE COMMISSIONER: Good. We will now go off the record.

OFF THE RECORD
<RESUMED [1.01PM]

PN167

THE COMMISSIONER: It's the case there has been a conference of the parties and the transcript will reflect the link to that conference. It's the case that that time was spent. Mr Borenstein, I'm happy to hear what it is that you want to put. You maintain your application? Well, perhaps you can - - -

PN168

MR BORENSTEIN: Yes, Commissioner. Based on the materials before the Commission we say all the statutory requirements have been met for the granting of the ballot order and we seek an order that is before the Commission in the terms before the Commission as agreed to by the parties here today.

PN169

THE COMMISSIONER: Yes. Thanks, Mr Borenstein. Yes, Mr Parry, you're aware of that?

PN170

MR PARRY: We don't have any submissions to make, Commissioner.

PN171

THE COMMISSIONER: No, all right. Well, I do propose to make orders and I do so because I have come to the view that having looked at the application that it is one that can be granted and in doing so I have had regard particularly for division 4 generally, but section 461 and other sections. And I will issue two orders now. One is the protected action ballot order which requires the Australian Electoral Commission to conduct a ballot according to timetable which is contained and it sets out the questions to be responded to as to which response is sought. I also sign an order which requires the ballot agent, the Australian Electoral Commission, to conduct the ballot. I now adjourn.

<ADJOURNED ACCORDINGLY [1.04PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #S1 WITNESS STATEMENT OF LAWRENCE WONDMAKER AND ATTACHMENTS PN16
EXHIBIT #CEPU1 STATEMENT OF GEOFFREY BORENSTEIN PN160