BP2008/2360, Transcript of Proceedings [2008] AIRCTrans 85 (6 March 2008)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 18151-1

VICE PRESIDENT LAWLER

BP2008/2360

s.451(1) - Application for order for protected action ballot to be held
Finance Sector Union of Australia
and
Goulburn Murray Credit Union
(BP2008/2360)

SYDNEY

3.19PM, WEDNESDAY, 20 FEBRUARY 2008

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

PN1

MR W SMITH: I seek to appear on behalf of Goulburn-Murray Credit Union.

PN2

MR R LOWREY: I appear for the Finance Sector Union of Australia.

PN3

THE VICE PRESIDENT: Please feel free to remain seated. Mr Smith, is there to be any substantive opposition to the - yes, Mr Lowrey.

PN4

MR LOWREY: We're also represented by MR G MCCONVILLE from the Finance Sector Union. He may, sir, need to address you if for no other reason that I've left my reading glasses in the car.

PN5

THE VICE PRESIDENT: No worries. That's fine. Mr Smith, is there to be any substantive opposition to the application?

PN6

MR SMITH: Your Honour, we would like to make a statement in relation to the application, yes.

PN7

THE VICE PRESIDENT: Fine. Proceed.

PN8

MR SMITH: Your Honour, I think it's probably worth my while taking you to what the Goulburn-Murray Credit Union is in a very brief statement. It's a small financial institution serving its members with traditional banking services in the Goulburn Valley region of Victoria. It has nine branches from Echuca in the north to Kilmore in the south and in the town of Violet Town, the credit union is the only financial institution present. Only three of their branches have an opportunity for it to allow members to actually withdraw cash other than across the counter, and that is by way of ATMs.

PN9

Any industrial action taken at any time will have an effect on its members, but particularly during the week commencing 17 March which was the original date that we thought that action may be taken and it will have far-reaching effects on the membership of the credit union. This is the week leading up to Easter and many of the credit union's business clients would be looking to access additional services to tide them over for the long weekend. Centrelink recipients will require cash and counter services on Thursday, the 20th, which is a pay day as Friday is a public holiday and many other members who will want to arrange their affairs before travelling away from the community for the school holidays.

PN10

I guess, your Honour, if I may just take you to some of the major things that have happened in relation to the negotiations of this particular agreement.

PN11

THE VICE PRESIDENT: Mr Smith, I'm more than happy to hear the balance of what you're saying but I was just trying to ascertain the ambit of the hearing that's going to occur this afternoon. Is it a relatively short hearing or is it going to be a lengthy hearing with evidence called. The Act is structured in such a way that the Commission doesn't have a discretion once the criteria in the Act are met and section 461(1), correct me if I'm wrong - there's a mandatory obligation on the Commission to grant the application if the criteria in (a), (b) and (c) of 461(1) are met and to refuse it if they're not met so the question was really directed towards whether or not you would be seeking to substantively contest that one or more of the criteria in 461(1) were not met.

PN12

MR SMITH: No, your Honour.

PN13

THE VICE PRESIDENT: The matters that you adverted to at moment, thus far in what you've said, are not matters that bear upon whether or not the order should be granted. There are at least remedies available in the Act independently of this application which can be availed of if there is significant harm being done to the community or a section of it. You can seek a suspension of the bargaining period and industrial action couldn't occur during a suspension in the event that it was authorised pursuant to the ballot conducted on the basis of the present application.

PN14

Whilst I'm sure the matters that you adverted to are matters of considerable significance to the respondent and to its customers, they're not matters which go to whether or not the order in this particular application should be issued. If the three conditions in 461(1) are met, the Commission must make the order.

PN15

MR SMITH: I understand, your Honour.

PN16

THE VICE PRESIDENT: Please feel free to say whatever else you wanted to say.

PN17

MR SMITH: I think that we need to say that the negotiations have been continuing on since May 2007. These negotiations were undertaken and conducted in good faith. I might point out that the bargaining period that we're currently under, your Honour, did not commence until 5 December 2007 so all of the negotiations with the Finance Sector Union of Australia were conducted outside the bargaining period

PN18

MR MCCONVILLE: Which is correct, bar one.

PN19

MR SMITH: Bar one, the one in December. I stand corrected, your Honour, one in December. We felt that the communication to all staff, including the FSU members, was relevant, it was a sanction by both the FSU and the credit union. In fact it went out as a joint communiqué and input from staff, both members and non-members of the union was sought during the period.

PN20

At the conclusion of our final meeting on - I stand corrected on the date, I think it was 3 December, 3 or 4 December of last year we understood that we had an agreement which was a good outcome for all of those concerned and overall a very good package and contained benefits for all staff. It was under those conditions that the document was put to the members of the staff for proofing.

PN21

We're quite concerned in relation to the serving of members in country towns that the credit union is in should any action be taken by the staff, and I don't know what action is proposed but any action, particularly leading up to the week of Easter or during the week before Easter would cause major concern for the credit union. If the Commission pleases.

PN22

THE VICE PRESIDENT: Mr Lowrey, on the basis that Mr Smith has indicated that he does not raise any substantive objection to the application on the basis that one or more of the grounds in 461(1) of the Act are not satisfied, the Commission can act on the uncontested submissions of counsel of the advocate so do you submit that during the bargaining period the applicant genuinely tried to reach agreement with the employer of the relevant employees?

PN23

MR LOWREY: Yes, sir.

PN24

THE VICE PRESIDENT: Do you submit the applicant is genuinely trying to reach agreement with the employer?

PN25

MR LOWREY: Yes, sir.

PN26

THE VICE PRESIDENT: Do you submit the applicant is not engaged in pattern bargaining?

PN27

MR LOWREY: Do I agree that?

PN28

THE VICE PRESIDENT: Yes.

PN29

MR LOWREY: I say yes, sir. Yes.

PN30

THE VICE PRESIDENT: That's the basis upon which the Commission can be satisfied, in the absence of opposition to those propositions from Mr Smith on behalf of the respondent, the Commission can be satisfied that the requirements of the Act have been met.

PN31

I should say, Mr Smith, I haven't accurately conveyed to you the full detail of the Act. There is, in fact, a discretion in 461(2) where the granting of the application would be inconsistent with the objects of the division, or that there has been contraventions of a provision in the division or orders made or directions given under the division, but the objects - so if you wanted to make any submission directed towards the objects or directed towards the contravention of a provision of the division, an order made or direction given under the division, then please feel free.

PN32

The reality is, and I'm not responsible for the legislation, I'm responsible for administering it, that the brave new world, if I could put it that way, of Work Choices is predicated upon unions and their members having a right to take protected action during the course of bargaining once various criteria have been met, employers and the public protected by the provisions that allow for an application to be made to suspend or terminate a bargaining period. That's the framework within which we are working.

PN33

It's rare that industrial action doesn't have some adverse impact on the employer or its customers and what you've adverted to is really part of the nature of the beast. Whether I think that's a good thing or a bad thing is rather beside the point because that's what the legislation contemplates. In any event, if you wanted to make some submissions based upon section 461(2), please feel free.

PN34

MR SMITH: No, your Honour, thank you.

PN35

THE VICE PRESIDENT: Mr Lowrey, just in relation to the application, I'm a little troubled that there may be some difficulty with the question to be put.

PN36

MR LOWREY: In what way, sir?

PN37

THE VICE PRESIDENT: There's a Full Bench decision, Country Fire Authority, I think is the one if my memory serves me correctly, which emphasises that there needs to be an appropriate degree of specificity in the action that's being put to employees who are balloted. The last part of the question:

PN38

Details of which will be supplied to the employer in the form of notices of protected action -

PN39

is really redundant and I propose to include it because, of course, you see the employees don't know what the details are and they wouldn't know what they are when they come to ballot - when they come to vote upon the question. There's a nice issue as to whether or not the nature of the industrial action has been sufficiently specified within the interpretation of the Full Bench in County Fire Authority in the remainder of the question:

PN40

Do you support the taking of stop work action at GMCU workplaces.

PN41

It would be desirable, I think, to add further detail which indicated the duration of stoppages.

PN42

MR MCCONVILLE: If I may, your Honour, we did consider the authority within print 973841 between the time of making the application and coming here today and we would suggest a simple amendment to the ballot question and that would be to delete the words "stop work action" where appearing and insert in their place "industrial action in the form of stoppages of four hours' duration".

PN43

THE VICE PRESIDENT: That solves that problem.

PN44

MR MCCONVILLE: Thank you, your Honour.

PN45

THE VICE PRESIDENT: This is an application for an order for a protected action ballot to be held pursuant to section 451 of the Act. The criteria that govern the fate of the application is set out in section 461. I am satisfied that each of the matters in paragraphs (a), (b) and (c) are met and I am not satisfied that there is any discretionary basis under section 461(2) to refuse the application. Accordingly, an order for a ballot will issue in due course. You can expect that that will be this afternoon, gentlemen.

PN46

Mr Lowrey, you're content with the ballot that the Australian Electoral Commission has provided?

PN47

MR LOWREY: The timeframe of that ballot, sir?

PN48

THE VICE PRESIDENT: Yes, the timetable.

PN49

MR LOWREY: Yes.

PN50

THE VICE PRESIDENT: Can I just make this observation. It's entirely a matter for you. The AEC advises effectively a minimal timetable that they are able to conform to. In order for the ballot to be successful you need to have a majority of the persons voting in favour of the action, but you also need to have at least 50 per cent of eligible voters voting. The timetable that's here does not leave much time to deal with problems with delays in postage or with the problem of people not dealing with their mail in a prompt fashion. If somebody takes the mail and puts it on top of the fridge or the mantelpiece to deal with it the next day or the day after, then they won't be able to return a ballot in time. The only question is whether or not you want to have an extension of a day or two for the time in which employees have an opportunity to respond and to post their ballot material.

PN51

MR LOWREY: Your Honour, we note that the date of the declaration according to the AEC submission is Friday, 7 March. Well, in view of what you're saying, we have no objection to that being pushed back a couple of days to Tuesday, the 11th, bearing in mind that in Victoria 10 March is a public holiday.

PN52

THE VICE PRESIDENT: The critical date is the date the ballot closes. That's the date that gets moved and the declaration of the result is the next working day.

PN53

MR LOWREY: Sir, in view of what you say, if you were to move the closure of the ballot from Thursday, the 6th to Tuesday, the 11th that's fine.

PN54

THE VICE PRESIDENT: Okay. It's a matter for you as to whether or not you do that. I'm just alerting you to the fact that this problem of minimal timetables provided by the AEC resulting in ballots failing, not because employees vote it down but because there just aren't enough ballots returned is a problem that some parties just haven't experienced or are unaware of. Tuesday, the 11th is the date that you want. That's fine. Anything further from you, Mr Lowrey?

PN55

MR LOWREY: No, sir.

PN56

THE VICE PRESIDENT: Anything further from you, Mr Smith?

PN57

MR SMITH: No, your Honour.

PN58

THE VICE PRESIDENT: Mr Smith, if the action is going to start having an impact that's harming the local community, just bear in mind that there are those grounds within the Act to apply for the suspension or termination of the bargaining period which will render any industrial action that occurs during such suspension or after such termination unlawful. Whether or not the particular circumstances come within the ambit of those available applications is a matter that I can't speculate upon in any event. In other words, I suppose in a way I'm saying I'm sorry that I can't take account of the matters that you put forward on this application, even though it would probably make sense to you that I ought be able to but that's not what the legislation authorises.

PN59

The Commission is adjourned and the order will be issue later this afternoon.

<ADJOURNED INDEFINITELY [3.57PM]