B2013/1219, Transcript of Proceedings [2013] FWCTrans 750 (27 September 2013)

TRANSCRIPT OF PROCEEDINGS

---

Fair Work Act 2009 1048900-1

COMMISSIONER LEWIN

B2013/1219

s.459 - Application to extend the 30 day period in which industrial action is authorised by protected action ballot

Australasian Meat Industry Employees Union, The
and
Somerville Retail Services
(B2013/1219)





Melbourne

10.12AM, MONDAY, 23 SEPTEMBER 2013

PN1

THE COMMISSIONER: Good morning. Mr Buckley, you're in Brisbane - can you hear us?

PN2

MR BUCKLEY: Yes, Commissioner, thank you, I can hear you.

PN3

THE COMMISSIONER: Yes. Are you appearing for the union?

PN4

MR BUCKLEY: I am appearing for the union, yes, Commissioner.

PN5

THE COMMISSIONER: Very well. With Mr Chalkley and Mr Jones, is that right?

PN6

MR BUCKLEY: Yes, they are in the hearing room in Melbourne.

PN7

THE COMMISSIONER: Yes. I think since we're conducting this hearing partly by video conference, the parties can remain seated at the bar table for the duration of the hearing, thank you.

PN8

MR BUCKLEY: Thank you, Commissioner.

PN9

THE COMMISSIONER: Yes. Who appears for the company?

PN10

MS L HOULAHAN: I seek leave to appear on behalf of the company, Commissioner. Houlahan, initial L.

PN11

THE COMMISSIONER: Ms Houlahan, I'll just see if there's any objection to that. Mr Buckley?

PN12

MR BUCKLEY: There's no objection, Commissioner.

PN13

THE COMMISSIONER: Yes. Ms Houlahan, we were notified of the application for permission to appear. I gave it some consideration and I was inclined to grant it and given that there's no objection, it's granted.

PN14

MS HOULAHAN: Thank you, Commissioner.

PN15

THE COMMISSIONER: All right. Mr Buckley, it seems that the union's application is relatively straightforward on the papers. Do you need to say anything further or would it be convenient to hear from the company?

PN16

MR BUCKLEY: I don't really need to say anything further, Commissioner, beyond obviously to tender the statement of Mr Jones and to, perhaps, read the submissions (indistinct)

PN17

THE COMMISSIONER: Do we have a statement of Mr Jones? I can't recall seeing a statement by Mr Jones. It's been filed electronically, has it?

PN18

MR BUCKLEY: I believe Mr Jones emailed it to your chambers.

PN19

MR G JONES: I do have a copy here.

PN20

THE COMMISSIONER: Mr Jones, yes, can you tender a copy please, we don't seem to have one on the file.

PN21

MR BUCKLEY: There are also some written submissions.

PN22

THE COMMISSIONER: Written submissions. All right. Have these been served on the respondent?

PN23

MS HOULAHAN: They have, Commissioner.

PN24

THE COMMISSIONER: All right. Just bear with me for a moment. You seek to tender the statement of Mr Jones, Mr Buckley.

PN25

MR BUCKLEY: I do, Commissioner.

PN26

THE COMMISSIONER: Is there any objection to that?

PN27

MS HOULAHAN: There isn't, Commissioner.

PN28

THE COMMISSIONER: Exhibit A1.

EXHIBIT #A1 STATEMENT OF MR GARY JONES

PN29

THE COMMISSIONER: Do you require Mr Jones for cross-examination, Ms Houlahan?

PN30

MS HOULAHAN: No, Commissioner.

PN31

THE COMMISSIONER: You don't. All right. Exhibit A1 is received without contest. I'll mark the submissions as exhibit A2. Is it convenient now to hear from the company, Mr Buckley?

PN32

MR BUCKLEY: Yes, Commissioner.

PN33

THE COMMISSIONER: Very well. Ms Houlahan.

PN34

MS HOULAHAN: If it pleases the Commission, our understanding of the union's position is that the extension should merely because the initial 30-day period has lapsed. We've set out in our supplementary outline of submissions, which I hope you have - - -

PN35

THE COMMISSIONER: No, I haven't.

PN36

MS HOULAHAN: We filed those on Friday afternoon.

PN37

THE COMMISSIONER: There must have been some sort of breakdown in our system. Can you tender those?

PN38

MS HOULAHAN: I can tender those now. Thank you. Did you receive the original submissions that were - - -

PN39

THE COMMISSIONER: I'm not sure that I did. I received an email. That's all we've seen. These have been served, I take it?

PN40

MS HOULAHAN: They have, your Honour.

PN41

THE COMMISSIONER: I'll mark it for the record as R1.

EXHIBIT #R1 SUPPLEMENTARY OUTLINE OF RESPONDENT'S SUBMISSIONS

PN42

MS HOULAHAN: Thank you. That's the supplementary?

PN43

THE COMMISSIONER: Yes, and R2 is the original outline.

EXHIBIT #R2 ORIGINAL OUTLINE OF RESPONDENT'S SUBMISSIONS

PN44

MS HOULAHAN: Commissioner, you'll see in our supplementary outline of submissions, the point that the company makes in proceeding with this objection is that there should be something more than merely the fact that the initial 30-day period has lapsed for the Commission to exercise its discretion to extend that period. On the basis of the material that's before the Commission at this stage, we would submit that there is not compelling evidence or argument to indicate that the Commission should exercise its discretion to extend the period. If it pleases the Commission.

PN45

THE COMMISSIONER: They're you submissions?

PN46

MS HOULAHAN: They are, Commissioner.

PN47

THE COMMISSIONER: Do you wish to call any evidence?

PN48

MS HOULAHAN: No, Commissioner.

PN49

THE COMMISSIONER: Ms Houlahan, the difficulty I have with your submission is that the statement of Jarrod Jones indicates that the parties were at agreement and that that agreement broke down because of a change in position on the part of the company in relation to classifications and rates of pay.

PN50

MS HOULAHAN: Commissioner, we dispute that that's how it occurred. If I refer to paragraph 5 of Mr Jones's statement, this is where he says the agreement was reached. He talks about:

PN51

Negotiations had continued between the union and the company even though the protected action ballot process was in place. There was a meeting with the company and in that meeting the company agreed to apply award penalties rather than have a rolled-up rate incorporating shift allowances and penalties which was what was in the draft agreement at that point in time.

PN52

Paragraph 12 then is where Mr Jones says he's had a look at the new agreement that's been sent to everyone and it contains award rates. We'd say the two were consistent with each other. The company's position at that point in time was it was agreed that instead of having a rolled-up rate, which was in the original version of the agreement, they were moving to separate the penalty rates. So that's all that occurred there. There was a misunderstanding, we would submit, rather than - - -

PN53

THE COMMISSIONER: It might be necessary to cross-examine Mr Jones, I think, even though you indicated you didn't wish to. I think in the circumstances the dispute about whether or not there was a change in position by the company should be the subject of the evidence. Mr Jones, you say that there was a change of position.

PN54

MR JONES: Yes. The pay rates were never discussed as changing back to the federal award.

PN55

THE COMMISSIONER: Mr Buckley, I think we'll probably have to allow Ms Houlahan to cross-examine Mr Jones.

PN56

MR BUCKLEY: Commissioner, there's no problem if Ms Houlahan wishes to cross-examine Mr Jones from the applicant's perspective. I don't think it matters whether or not this was a change in the company's position or a misunderstanding.

PN57

THE COMMISSIONER: I think we'll reserve that for the submission.

PN58

MR BUCKLEY: Very well, Commissioner.

PN59

THE COMMISSIONER: I think the issue at the moment is there seems to be a difference about the historical development of the negotiations and what was at stake. What's to be made of that, what weight ultimately is to be attached to it can be the subject of submissions. Other matters may be relevant, but I'd prefer to have some evidence on the subject. Mr Jones, are you able to take the stand, then? Do you object to that?

PN60

MS HOULAHAN: No.

PN61

THE COMMISSIONER: Very well, can you stand in the witness box for a moment please and take either the oath or the affirmation.

PN62

THE ASSOCIATE: Please state your full name address.

PN63

MR JONES: Jarrod Jones, (address supplied).

<JARROD JONES, SWORN [10.23AM]

PN64

THE COMMISSIONER: Thank you, Mr Jones. Please be seated. Do you have a copy of your statement?---No, I don't. That was the original submission.

PN65

Very well, here you are. Have you read it recently?---Yes, fairly recently.

PN66

You testified it's the truth do you?---Yes.

PN67

Very well. Yes, Ms Houlahan.

<CROSS-EXAMINATION BY MS HOULAHAN [10.23AM]

PN68

MS HOULAHAN: Mr Jones, if I can take you to paragraph 5 of that statement?
---Yes.

PN69

What's your recollection of what occurred during that meeting on 9 August?---Yes, that was early days after that Chiara, the new HR manager had just taken over. The previous HR manager wanted to have one rate that incorporated shift penalties and allowances and whatnot. We were of the opinion that some of the retail services had to prove that their rate would be good enough to pass BOOT test and incorporate all those penalties and everything. That pay rate was by far going to fail the BOOT test. So we - the company agreed to apply the penalties. There was nothing ever discussed about rates of pay.

PN70

Your understanding of that meeting was that there was an agreement that rather than the rolled-up rate being applied, which the previous HR manager had put in the agreement - so it was a rolled-up rate including all allowances and penalties - what the company had agreed to with you at the point that the new HR manager was appointed was instead of having a rolled-up rate it would be a separated out rate so that penalties would be provided for separately in the agreement - and in addition to the base rate that was set out in the agreement. Is that your understanding?---Yes.

PN71

Yes. If I could take you now then to paragraph 12 of your statement, if you could read it out for me, Mr Jones, for the Commission?---"After Mr Cook raised the classification issue with me I went back and read over the company draft of classifications. When I did so I noticed the company had reduced the rates of pay from various classifications. I had noticed this before. The company did not - - -"

PN72

If I could just correct you, I think you missed a "not" there. "I had not noticed - - -"?---"I had not noticed this before", sorry. Correct. "The company did not give any indication that they were going to reduce the rates of pay and so I had not specifically looked at them. As soon as I realised the discrepancy I telephoned Chiara Soccio and raised it with her. I asked why the rates of pay had been changed. She said she would call me back. A short time later she called me back and said that when the company agreed to pay shift penalties and allowances it had changed the rates of pay back to the federal award. This was not what the union had agreed to and I made it clear to Chiara that we did not accept this. Chiara responded by saying something like, 'Then I think we have problems, I think we're going to have problems.'

**** JARROD JONES XX HOULAHAN
PN73

Do you accept from that that the company had a different understanding of the meeting that took place, that we referred to earlier on 9 August?---Yes.

PN74

There was just a disagreement between the parties or a misunderstanding between the parties as to what had been agreed at that point in time?---Yes, that's what seems to have been happening.

PN75

Has there been ongoing discussions with the company about various issues in relation to the agreement?---Yes.

PN76

So bargaining continues?---Yes.

PN77

Whether industrial action takes place or not -or the threat of industrial action has been hanging over the company or not, the company has been meeting with the union at reasonable times and discussing matters?---Sure, yes.

PN78

Thank you, Mr Jones. Nothing further, Commissioner.

PN79

THE COMMISSIONER: Very well. Mr Jones, just before Mr Buckley re-examines you, you said in relation to paragraph 12 that the company had reduced the rates. Was there any change in the classifications?---Yes, there was, Commissioner.

PN80

Had that been discussed previously?---Yes. That was what was discussed and agreed to - that there need to be a change in classifications and the company would put a draft classifications down for us to view that reflected more of their situation.

PN81

When you say there was a change, was it a change from the agreed position?

**** JARROD JONES XX HOULAHAN

---No. The classifications were very unclear, from the previous HR manager - - -

PN82

No - I'm talking about paragraph 12. Did you say anything there about classifications?---The classifications were changed to the agreed changes.

PN83

They were the agreed changes?---Yes.

PN84

All right. When you say the rates were reduced, what were they reduced from?
---There was currently - it was federal award rates with $1.10 and a $2.20 - $1.10 extra for an hour for day shift and $2.20 extra an hour for an afternoon shift.

PN85

They were the rates reflected in award payments or - - -?---Yes.

PN86

- - - was that in an agreement or - - -?---That was in the original classifications.

PN87

In the original classifications?---Yes.

PN88

Those payments of $2.20 and $1.10 - was that per hour or per week?---Per hour.

PN89

Per hour. How were the wages regulated during the negotiations? Were they regulated by agreement or were they regulated simply by the company applying the federal award rates of pay plus these amounts?---Yes, the existing employees - because it's all over the shop out there with wages obviously, some people are high, some people are low - so there is a clause we had to put in the agreement that existing employees, their wage at the time of signing would constitute their wage rate.

PN90

Which agreement are you referring to?---The draft, sorry.

PN91

The draft?---Yes.

**** JARROD JONES XX HOULAHAN
PN92

All right. So there was a proposal that the existing wage rates would be the rates prescribed by the agreement?---No, not exactly. No, no employee out there, current employee out there at the moment would be worse off than what they currently are.

PN93

Yes?---It was basically - the whole way through it was the wages that were put to us were basically federal award rates with $1.10 and $2.20 on top. It was never discussed about being any different.

PN94

Correct me if I'm wrong. My understanding is that when you refer to the reduction in wage rates in paragraph 12, what you're referring to is these amounts, the $2.20 and the $1.10 - they'd been removed - - -?---Yes.

PN95

- - - from the wage rates?---Yes.

PN96

That wasn't your understanding of the agreement that had been reached - - -?---No.

PN97

- - - as to what the wage rates in the agreement would be. Is that right?---Yes.

PN98

Good, thank you. Anything further, Ms Houlahan?

PN99

MS HOULAHAN: No, Commissioner.

PN100

THE COMMISSIONER: Very well. Mr Buckley.

PN101

MR BUCKLEY: I have no (indistinct) and I'll keep standing up.

PN102

THE COMMISSIONER: Thank you for your evidence.

<THE WITNESS WITHDREW [10.30AM]

PN103

THE COMMISSIONER: Mr Buckley, do you wish to make any further submissions?

PN104

MR BUCKLEY: Yes, thank you, Commissioner. In respect of the application, I'd like to start with Mr Jones's evidence. It's clear, even on the basis on which Mr Jones was cross-examined by Ms Houlahan, that the parties, even if it was a misunderstanding it was a misunderstanding mutually between the parties as to what they had supposedly agreed to at this meeting on 10 September. In other words, the position is the parties were close to an agreement, they thought they had an agreement but it turns out due to this mutual misunderstanding they did not. In any event, I might say, even though the parties were close to agreeing or even if they thought they had an agreement that of itself would be no reason to deny the AMIEU's application for an extension.

PN105

Indeed, one of the earlier decisions, there's the decision of the Maritime Union of Australia against DP World. In that particular case - and I understand Mr Jones has copies of that decision for the Commission (indistinct) and he can provide those.

PN106

THE COMMISSIONER: Yes, we'll receive that, if you want to refer to it.

PN107

MR BUCKLEY: Yes. Simply, that's (indistinct) an example where the union and the company had in fact reached an agreement in principle and nevertheless the union applied for an extension of the 30-day period in which to commence protected industrial action. It did that simply to preserve its rights in the event that something when wrong in the final drafting of the document and they expected (indistinct) in those circumstances. The AMIEU application meets the substantive or factual prerequisites, if you like, of section 450 (indistinct) 3. The applicant, AMIEU, is the applicant who applied for the protected action ballot order originally and the 30-day period in which the protected industrial action if not taken has not been previously extended.

PN108

Those facts are prerequisites in light of the Commission's discretion but it's not correct to say that the AMIEU hasn't advanced any positive reasons for the exercise of the discretion. In support of the application, the AMIEU has produced evidence from Mr Jones, which demonstrates that again it has been continuing to negotiate for a proposed agreement and is genuinely trying to reach agreement. Before I go to the consequences of that I might deal with the material contained in the respondent's written submissions. Firstly, in the respondent's initial submissions, they state that the respondent has been bargaining in good faith. That's accepted by the applicant and of course both the applicant and the respondent have an obligation to bargain in good faith in these circumstances.

PN109

There has been no suggestion that either party has failed to do so. The fact that it was compliance with those obligations is not a reason to refuse to exercise the discretions. There was also the suggestion in the respondent's submissions that the application shouldn't be granted because the parties are close to agreement and may yet reach agreement without protected industrial action. Again, the applicant submits that's not a reason to refuse the application and, of course, in the case of MUA v DP World is an example of where an extension might properly be granted - notwithstanding that agreement has even been reached. The applicant doesn't dispute that it may well be possible to resolve the outstanding matters between the parties without protected industrial action of the applicant.

PN110

It is certainly prepared to continue to discuss matters with the company and the AMIEU hasn't (indistinct) from the prospect of reaching an agreement without a protected industrial action. There's also a reference in the submissions to the union being heavy-handed in its approach to this issue. Commissioner, I suggest that that's a curious submission and, frankly, the characterisation of the union's position as heavy-handed is simply wrong. Under the legislative scheme of the Act, there's no requirement that protected industrial action needs to be an instrument of last resort in collective bargaining. But nevertheless, in this process for the AMIEU it has very much been an instrument of last resort and indeed had it not been we probably wouldn't find ourselves in the position where we need to apply for an extension for protected industrial action.

PN111

I should also note that the respondent, whilst they used (indistinct) language with "heavy-handed" they've been careful not to allege that the union has either failed to bargain in good faith or that the union hasn't been genuinely trying to reach agreement. The final in the submission was made that the applicant hasn't demonstrated any positive reason why the discretion should be exercised, and I'll return to that original point: that in fact the applicant has demonstrated that it is continuing to genuinely reach agreement. In my submission, in those circumstances an application for an extension under section 459(3) would ordinarily be granted in the absence of any countermanding discretionary factors.

PN112

That's consistent with both the history of the decisions of the Commission in respect of section 459(3). It's also consistent with the legislative principles and objects enshrined in the legislation. Perhaps to illustrate that point, the fact is that if a bargaining representative applies for an extension under 459(3) and is refused - if that bargaining representative has been genuinely trying to reach agreement then it would entitled to seek another protected action order under the mandatory provisions of the legislation. If the Commission was satisfied that it was genuinely trying to reach agreement, it would be obliged to issue another protected action ballot order.

PN113

In other words, the refusal of the extension would only have the effect of delaying and frustrating the employees's ability to take industrial action. I would submit that that is not consistent with the legislative scheme of division 8 of Part 3-3 of the Act. Of course, finally, organisations that are genuinely trying to reach agreement are not able to secure extensions under section 459(3). That creates circumstances in which organisations make (indistinct) impression to take industrial action within the 30-day period in order to preserve their rights to continue to take such action outside 30 days. In other words, it might encourage organisations to take industrial action which otherwise wouldn't have been taken simply to preserve their rights in case something goes wrong - for instance, in the drafting of the agreement.

PN114

Indeed, that situation is likely to promote the very kind of heavy-handed behaviour the respondent appears to be so concerned about. Essentially, Commissioner, those are my submissions. In the circumstances of this matter, the applicant believes that it would be appropriate to make the extension of the order under section 459(3). That's all I have unless the Commission has any questions.

PN115

THE COMMISSIONER: No, thank you, Mr Buckley. Ms Houlahan.

PN116

MS HOULAHAN: Thank you, Commissioner. We would simply restate our submissions that the applicant has actually failed to identify a positive reason the Commission should exercise its discretion. The positive reasons that were put forward by the applicant's representative, Mr Buckley, were really the reverse of the negative reasons that were put. The positive reason seemed to be the fact that the union is essentially continuing to bargain. We would say that the other reason actually that was put by Mr Buckley was that a refusal to grant this order would result in the union (indistinct) their right to make a further application for a protected action ballot. We don't see how that could possibly be a reason in favour of the exercise of the discretion here. If it pleases the Commission, that is our submission.

PN117

THE COMMISSIONER: Very well. For the (indistinct) of the parties, I should indicate that I can give a decision ex tempore - I intend to extend the period. I'll provide written reasons for this as soon as practicable. The extension will commence immediately and will be for a period of 30 days. Thank you.

PN118

MR BUCKLEY: Sorry, sir. Just as I understand the extension must necessarily then stop the date of expiration of the - - -

PN119

THE COMMISSIONER: Yes, I beg you pardon. The order will come into force on and from today's date and remain in force for the relevant period up to 30 days. Thank you very much.

<ADJOURNED INDEFINITELY [10.43AM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #A1 STATEMENT OF MR GARY JONES PN29
EXHIBIT #R1 SUPPLEMENTARY OUTLINE OF RESPONDENT'S SUBMISSIONS PN42
EXHIBIT #R2 ORIGINAL OUTLINE OF RESPONDENT'S SUBMISSIONS PN44
JARROD JONES, SWORN PN64
CROSS-EXAMINATION BY MS HOULAHAN PN68
THE WITNESS WITHDREW PN103