B2013/211, Transcript of Proceedings [2013] FWCTrans 709 (10 September 2013)

TRANSCRIPT OF PROCEEDINGS

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Fair Work Act 2009 1048786-1

SENIOR DEPUTY PRESIDENT HAMBERGER

B2013/211

s.437 - Application for a protected action ballot order

Construction, Forestry, Mining and Energy Union
and
Helensburgh Coal Pty Ltd
(B2013/211)
Helensburgh Coal Enterprise Agreement 2010

(ODN AG2010/11701)
[AE880325 Print PR501053]]




Sydney

3.28PM, TUESDAY, 3 SEPTEMBER 2013

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

PN1

THE SENIOR DEPUTY PRESIDENT: It’s Senior Deputy President Hamberger here. Can you both hear me?

PN2

MR A. WALKADIN: Yes.

PN3

MR D. WILLIAMS: Yes, thank you.

PN4

THE SENIOR DEPUTY PRESIDENT: Because this is being transcribed, we should probably formally take appearances. Who is for the applicant, please?

PN5

MR WALKADIN: Your Honour, it’s Adam Walkadin. I’m appearing on behalf of the CFMEU in this matter.

PN6

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN7

MR WILLIAMS: Your Honour, it’s Dan Williams from Minter Ellison, seeking your permission to appear on behalf of the respondent employer.

PN8

THE SENIOR DEPUTY PRESIDENT: Okay. Mr Walkadin, I assume you don’t have any problems with me granting permission to Mr Williams.

PN9

MR WALKADIN: No, your Honour.

PN10

THE SENIOR DEPUTY PRESIDENT: No. I think that’s appropriate so I will grant you permission, Mr Williams, to appear.

PN11

MR WILLIAMS: Thank you.

PN12

THE SENIOR DEPUTY PRESIDENT: Okay. So, Mr Walkadin?

PN13

MR WALKADIN: Your Honour, it’s an application that the union has made. You should have with you a copy of the application, some draft directions and a draft order.

PN14

THE SENIOR DEPUTY PRESIDENT: Yes.

PN15

MR WALKADIN: The union sent through at about 4.30 yesterday afternoon an amended draft order.

PN16

THE SENIOR DEPUTY PRESIDENT: Yes.

PN17

MR WALKADIN: That just made some very minor changes to the original draft order, primarily in relation to the timetable that the union proposes for the ballot.

PN18

THE SENIOR DEPUTY PRESIDENT: Yes. Let me, just to be absolutely clear, make sure I have got the right version. If we take the timetable for the ballot which is set out in clause 8 of your draft order, you have got the roll of voters closing at 4 pm today. Is that right?

PN19

MR WALKADIN: That’s correct, your Honour.

PN20

THE SENIOR DEPUTY PRESIDENT: And votes cast on Thursday, 5 September - on the 5th and 6th.

PN21

MR WALKADIN: Yes.

PN22

THE SENIOR DEPUTY PRESIDENT: Okay. Right.

PN23

MR WALKADIN: So that is the order that we seek be made. What the union says is that the application - sorry. I should also mention, your Honour, that also enclosed with the application was a witness statement of Andrew Davey, 29 August 2013.

PN24

THE SENIOR DEPUTY PRESIDENT: Yes, that’s right. Yes, I have got that. I have just realised, looking at the dates - so you actually want the roll to close in half an hour’s time. Let me just have a look. I see. Okay, so the roll closes and then - so presumably the way it would work is that you have got it in the order that the employer will provide the list of names of the employees tomorrow by noon.

PN25

MR WALKADIN: Yes.

PN26

THE SENIOR DEPUTY PRESIDENT: I understand there are some practical issues about Mr Hodder’s availability and so on. I assume that’s the big rush. Is that right?

PN27

MR WALKADIN: Yes, your Honour. That’s right. Mr Hodder - and obviously the timetable that is proposed will obviously accommodate and allow the employees at the Helensburgh mine to vote. In the union’s view, the most appropriate time would be Thursday and Friday, and obviously this Thursday and Friday is the most convenient date on which Mr Hodder can - - -

PN28

THE SENIOR DEPUTY PRESIDENT: Okay, and, I mean, if someone is left off the roll, is there scope for that to be modified? I’m just having a look, because usually I do the ones with the Electoral Commission, to be honest. Is there scope for the roll to be modified if someone has been left off by mistake? It’s just I’m just a bit confused about how you can close the roll in 29 minutes’ time and then the employer provides the names of the union members - how you actually close off the roll in that timetable.

PN29

MR WALKADIN: Yes. The draft direction deals with that issue, your Honour.

PN30

THE SENIOR DEPUTY PRESIDENT: Okay, yes. How does it do that? Carry on, yes.

PN31

MR WALKADIN: Point 2 of the draft direction provides that the protected action ballot agent shall, (b), “Add or remove names from the roll of voters in accordance with subsection 454 (indistinct) of the Act,” and then reference obviously to the Fair Work Act (indistinct) if there is an issue in relation to the roll.

PN32

THE SENIOR DEPUTY PRESIDENT: Okay, good. So you can correct it if needs be between now and the time of the actual ballot; tomorrow, basically.

PN33

MR WALKADIN: Yes. That would be a task that Mr Hodder would undertake. I should also probably mention as well, your Honour, that your chambers and the company were served at the (indistinct) by Mr Hodder.

PN34

THE SENIOR DEPUTY PRESIDENT: I must say I’m not sure I have got - when was that?

PN35

MR WALKADIN: That was sent through, I believe, on Friday.

PN36

THE SENIOR DEPUTY PRESIDENT: I don’t know if I have it. Okay. I will take your word for it. I can’t actually see it on the file here. Let me just see. Did he send it directly?

PN37

MR WALKADIN: I think my assistant sent it through to the Fair Work Commission (indistinct)

PN38

THE SENIOR DEPUTY PRESIDENT: Okay, but he has certainly done plenty of these before, hasn’t he? That’s the thing. My understanding is he does quite a lot of these. Is that right?

PN39

MR WALKADIN: That’s correct. That affidavit from Mr Hodder should really just satisfy yourself that he is an appropriate person to conduct ballots (indistinct) if you like, I can find that affidavit and send that through to yourself (indistinct)

PN40

THE SENIOR DEPUTY PRESIDENT: Yes. Obviously I’m aware of Mr Hodder in general terms. It would be useful to have it. I don’t seem to have it. I don’t know why.

PN41

MR WALKADIN: I will send that through to you. Briefly, your Honour, what we say is we say the application does comply with the Act, but obviously in terms of procedural requirements, we say those requirements have been met and we obviously rely upon Mr Davey’s witness statement to satisfy the Fair Work Commission that the union has been and continues to genuinely try and reach an agreement with the employer, and we do ask that the order be made in terms that are set out in the amended draft order. As we have already discussed today, the amended draft order does contemplate a vote taking place on Thursday and Friday of this week. Provided the commission is satisfied and is prepared to make the order, we would be seeking that the order is made by close of business this afternoon. That will enable Mr Hodder to undertake any pre-ballot steps that he must take and ensure that the vote does take place in a timely fashion, being Thursday and Friday of this week. Maybe perhaps we can hear from Mr Williams and seek to address - if he has got any concerns, we may be able to seek to address those.

PN42

THE SENIOR DEPUTY PRESIDENT: Yes, sure. Mr Williams?

PN43

MR WILLIAMS: Yes, your Honour. Thanks for listing the matter for hearing. We asked for a hearing because the timetable and the directions proposed by the union, by the CFMEU, was very tight and I didn’t have an instruction until really literally a few minutes ago as to whether that was practically achievable, particularly in relation to the roll. I’m happy to be able to confirm that my instructions are that in terms of the timetable proposed, we can meet it.

PN44

THE SENIOR DEPUTY PRESIDENT: Good. Okay.

PN45

MR WILLIAMS: My client can provide the list by 12 noon tomorrow, and the rest of it, I think, takes care of itself. There is though really only one issue in terms of the order - and I should say, your Honour, that it would be useful for us to see Mr Hodder’s affidavit of course for the record.

PN46

THE SENIOR DEPUTY PRESIDENT: Yes. Can you just make sure, Mr Walkadin, that a copy is served on the respondent?

PN47

MR WALKADIN: Yes, sir.

PN48

MR WILLIAMS: We certainly have no objection to Mr Hodder conducting the ballot (indistinct) highly experienced. Your Honour, it may be of little practical significance but in my view, clause 8.1 in the timetable for the ballot in the order should be deleted. The roll will be prepared by the balloting agent, Mr Hodder, as a combination of the list that we provide by 12 noon tomorrow and the list that the union provides by 12 noon tomorrow. It doesn’t seem that the roll can close until the ballot agent has settled the roll; not that we would expect it to change between now and (indistinct)

PN49

THE SENIOR DEPUTY PRESIDENT: Yes.

PN50

MR WILLIAMS: I think clause 8.1 may have been appropriate in a previous iteration when we were looking towards (indistinct)

PN51

THE SENIOR DEPUTY PRESIDENT: Yes.

PN52

MR WILLIAMS: It seems to me it should come out now. It doesn’t seem to quite work. I don’t know if Mr Walkadin - - -

PN53

THE SENIOR DEPUTY PRESIDENT: Yes. I must say obviously I was a bit uneasy about it as well because there’s just no way there is going to be a meaningful roll because you haven’t given any names at this stage obviously.

PN54

MR WILLIAMS: No, and we have got till 12 noon tomorrow as a result of that.

PN55

THE SENIOR DEPUTY PRESIDENT: Yes. I’m not sure if there’s any particular reason. Mr Walkadin, is there any reason why we need 8.1 in there?

PN56

MR WALKADIN: Your Honour, the union proposed the timetable in collaboration with Mr Hodder and the timetable that is set out, in particular 8.1, was what Mr Hodder suggested would be appropriate in terms of having a date on which the roll would close.

PN57

THE SENIOR DEPUTY PRESIDENT: I’m just trying to remember - but in fact it’s not really going to close because he hasn’t begun to compile it until tomorrow. That’s the reality and I’m just a bit nervous about - I mean, unless there’s actually a requirement somewhere - as I say, I have mainly done these with the Electoral Commission so I haven’t checked - it has just not come up before whether there’s some formal requirement to put a time or date for when the roll of voters closes. I just sort of wonder whether we - look, it just seems a bit weird, that’s all.

PN58

MR WALKADIN: Your Honour, I’m just madly searching to see whether such a requirement exists.

PN59

THE SENIOR DEPUTY PRESIDENT: I mean, he has certainly got to compile a roll, and that’s fine, and you have set out a process for doing that, but it just seems a bit odd to say that it closes when clearly it hasn’t even opened, if I could put it that way.

PN60

MR WILLIAMS: Yes. That was my concern (indistinct)

PN61

THE SENIOR DEPUTY PRESIDENT: Yes. I don’t like it.

PN62

MR WILLIAMS: To be quite honest, if the time was changed - I think it should go but alternatively, if the time changed to 12 noon when there’s an exchange of lists, then I suppose it would - - -

PN63

THE SENIOR DEPUTY PRESIDENT: We could make it 1 o’clock tomorrow but I don’t know if there’s something somewhere in the regs or somewhere that might create a problem.

PN64

MR WALKADIN: Your Honour, the only assistance I can offer is to tell you that, as I said, we took the advice of - - -

PN65

THE SENIOR DEPUTY PRESIDENT: Mr Hodder, yes.

PN66

MR WALKADIN: - - - Mr Hodder in relation to that issue. I agree at first blush it did seem slightly strange. It certainly wasn’t my previous practice with my previous employer in terms of - - -

PN67

THE SENIOR DEPUTY PRESIDENT: Yes.

PN68

MR WALKADIN: I have never seen it before. 7.1 makes it clear that it’s the ballot agent that compiles the roll and he does so from two lists.

PN69

THE SENIOR DEPUTY PRESIDENT: Yes. I’m going to - just bear with me a minute. Just let me have a look at the Act. Sorry. I don’t want to do anything that will create unnecessary problems. Section 452 deals with compilation of roll of voters:

PN70

As soon as practicable after receiving a copy of the protected action ballot order, the protected action ballot agent must compile the roll of voters. For the purpose of compiling the roll of voters, the protected action ballot agent may direct in writing -

PN71

blah, blah, blah. It just says - I see, “Variation by protected action ballot agent on request.”

PN72

MR WALKADIN: (indistinct) 453 which does make it clear that it is the day the order is made that eligibility is to be determined, but I still make the point that it’s for the ballot agent to compile the roll.

PN73

THE SENIOR DEPUTY PRESIDENT: Yes. Why don’t we just make it tomorrow? I just can’t see there will be any problems. I don’t think anything is going to come of it but if for some reason you were trying to argue that the order wasn’t properly made because we changed the date to tomorrow - - -

PN74

MR WALKADIN: I can undertake that if this is the easiest solution, without arguing too much about it, to change the time till tomorrow, then I won’t be challenging it on any basis.

PN75

THE SENIOR DEPUTY PRESIDENT: Yes. I think we might just do so. We will just change 8.1 to say, “The roll of voters is to close at” - well, noon or 1 o’clock or - - -

PN76

MR WILLIAMS: Yes. Why don’t we say noon, your Honour?

PN77

THE SENIOR DEPUTY PRESIDENT: Okay. Let’s say noon on Wednesday, 4 September.

PN78

MR WILLIAMS: Yes.

PN79

THE SENIOR DEPUTY PRESIDENT: Okay. Are there any other issues, Mr Williams?

PN80

MR WILLIAMS: There were two issues. I have been instructed to place two concerns in relation to the protected industrial action proposal, and I acknowledge that they’re concerns which cannot be and should not be addressed today. One of them is that under the existing Helensburgh Coal Enterprise Agreement, the 2010 agreement, there’s an explicit agreement in clause 3.3 that the parties will not take any protected action for three months following the nominal expiry date and if that commitment was honoured, then no industrial action would take place before 1 October. Now, of course it will be a matter, no doubt, for the union and the local lodge as to when and if industrial action is taken. It may be that because of the very specific immunities in the legislation the legislation overrides the agreement in any event. My client would reserve its right, whether under good faith bargaining principles or as advised, to object to any industrial action before 1 October.

PN81

THE SENIOR DEPUTY PRESIDENT: Yes. I don’t think that stops us going ahead with the ballot. I just think, Mr Walkadin, you might bear that in mind, I guess. I mean, obviously there will be issues about how enforceable such a provision is. I’m not sure - - -

PN82

MR WALKADIN: Agreed. I agree with that, your Honour.

PN83

THE SENIOR DEPUTY PRESIDENT: I mean, there’s a statutory scheme that gives you the right to take protected action. I’m not sure that a provision like that could override that, but we don’t have to decide that now, I think.

PN84

MR WILLIAMS: No, your Honour, you don’t. It may never have to be decided, but there is a very explicit commitment.

PN85

THE SENIOR DEPUTY PRESIDENT: Yes.

PN86

MR WILLIAMS: The other thing that my clients asked me to place on record - again, it’s not a matter for today - is that the industrial action proposed includes the potential for very short, or comparatively short, an hour, two hours, et cetera, periods of industrial action; also bans on the use of diesel vehicles and reductions or partial bans on the use of the longwall and other equipment. My client would wish recorded that it may not be able to maintain the safe operation of the mine for any period if industrial action of that type is taken and therefore it would of course have to look to (indistinct) well known to the union.

PN87

THE SENIOR DEPUTY PRESIDENT: Yes.

PN88

MR WILLIAMS: Again, that’s not really a matter for today but I have been instructed to place that on the record.

PN89

THE SENIOR DEPUTY PRESIDENT: Yes. Mr Walkadin, you perhaps should take that on board and convey it to the relevant - presumably this would be dealt with by, I don’t know, the organiser or the officials concerned. I assume you wouldn’t normally be involved in any decisions to actually take the industrial action necessarily but could you pass that on to them, just to make sure they’re aware of that point.

PN90

MR WALKADIN: Yes.

PN91

MR WILLIAMS: Other than that, your Honour, we consent to the order being made.

PN92

THE SENIOR DEPUTY PRESIDENT: Okay. I don’t think, Mr Walkadin, you need to - do you want to add anything? I mean, I’m obviously happy to make the order just with that minor change in terms of the date of the roll of voters.

PN93

MR WALKADIN: Yes, your Honour. I’m content to rest there and understand that you will issue that order (indistinct)

PN94

THE SENIOR DEPUTY PRESIDENT: Yes, but if you could for the record send Mr Hodder’s affidavit in - we don’t seem to have it - and you will send a copy to the employer.

PN95

MR WALKADIN: I will, your Honour.

PN96

THE SENIOR DEPUTY PRESIDENT: Okay. Thanks very much. Thank you, everyone.

PN97

MR WILLIAMS: Thank you, your Honour.

<ADJOURNED INDEFINITELY [3.44PM]