B2014/4, Transcript of Proceedings [2014] FWCTrans 40 (4 February 2014)

TRANSCRIPT OF PROCEEDINGS

---

Fair Work Act 2009 1049423-1

COMMISSIONER CARGILL

B2014/4

s.437 - Application for a protected action ballot order

Australian Rail, Tram and Bus Industry Union
and
Aurizon
(B2014/4)
Interail Australia (Coal Operations - NSW) Enterprise Agreement 2010

(ODN AG2010/2298)
[AE880527 Print PR501315]]




Sydney

4.32PM, MONDAY, 20 JANUARY 2014

PN1

THE COMMISSIONER: Could I have appearances, please.

PN2

MR T. COSTA: If it please the commission, my name is Costa, initial T. With me today is MR S. WRIGHT.

PN3

THE COMMISSIONER: Thanks, Mr Costa.

PN4

MR B. RAUF: May it please, Rauf, initial B. I seek permission to appear on behalf of the respondent. Also present with me today, on my left, MR N. BOURKE from Aurizon Operations Ltd, and also MR DELIMIHAILIS, solicitor at Ashurst.

PN5

THE COMMISSIONER: Thank you, Mr Rauf. Mr Costa, is there any view that you have about Mr Rauf being given permission?

PN6

MR COSTA: No, Commissioner.

PN7

THE COMMISSIONER: Okay. Just for the record, do you want to briefly address the requirements of 596?

PN8

MR RAUF: Yes, indeed.

PN9

THE COMMISSIONER: Just the fact that there isn't opposition isn't sufficient to found the grant of the permission.

PN10

MR RAUF: Yes.

PN11

THE COMMISSIONER: Brief submissions will do, Mr Rauf.

PN12

MR RAUF: I'll be very brief. Commissioner, just turning to section 596, I submit that the matter would be dealt with more efficiently if legal representation were permitted. I say that because there are a number of concerns which we wish to raise which relate to compliance with the Act, which will be important in our view. Secondly, as for fairness between the parties. I note that Costa is also an admitted solicitor, with Slater and Gordon, and so there isn't really any unfairness arising as between the parties.

PN13

THE COMMISSIONER: Okay. Thank you.

PN14

MR RAUF: Thank you.

PN15

THE COMMISSIONER: Anything you wanted to say, Mr Costa?

PN16

MR COSTA: No, Commissioner.

PN17

THE COMMISSIONER: On the basis of what you have put, Mr Rauf, I will grant permission. I think it would enable the matter to be dealt with more efficiently, but I do note that although Mr Costa is appearing in his capacity as national legal officer with the union, I think his initiating application in fact came from Slater and Gordon; but he maybe has two lives. In any event, I think probably it would be unfair to your client not to allow them to be represented in the particular circumstances.

PN18

MR RAUF: Thank you, Commissioner.

PN19

THE COMMISSIONER: Thank you. Yes, Mr Costa.

PN20

MR COSTA: That's right, Commissioner. I do wear two hats.

PN21

THE COMMISSIONER: That's all right. There's no criticism, Mr Costa.

PN22

MR COSTA: And sometimes there is some cross-fertilisation between the two positions. Perhaps I should start by just handing you, Commissioner, a copy of the application as amended that I forwarded to your associate on Friday. I have a signed copy with me today. It's no different, but just as a matter of form, I think I should give you a signed copy.

PN23

THE COMMISSIONER: Yes. Thank you. I'll mark that, just for the record, as
RTBU1.

EXHIBIT #RTBU1 APPLICATION

PN24

MR COSTA: Commissioner, this is an application under section 443 of the Fair Work Act. That section requires the commission to make a protected action ballot order if the commission is satisfied that, firstly, an application for a protected action ballot has been made and is made consistent with the requirements of section 437. Secondly, that the commission is satisfied that the applicant has been and is genuinely trying to reach an agreement with the respondent.

PN25

Firstly, I'd like to address you on the requirements of section 437. The applicant has met those requirements. The ARTBIU is a bargaining representative within the meaning of the Act. The proposed enterprise agreement is for a single employer enterprise agreement. The application, including the amended documents, specify the group of employees to be balloted. Specifically those are the employees of the respondent who will be covered by the proposed enterprise agreement and are members of the applicant. The application includes, at paragraph numbered 4, the questions to be put to the employees. The union has also proposed that the Australian Electoral Commission conduct the ballot.

PN26

In relation to the second component, the union submits that it is genuinely trying to reach an agreement and has been. In that regard, I'd like to hand you, Commissioner, a copy of the statement of Mr Wright.

PN27

THE COMMISSIONER: Are you proposing to call Mr Wright to give evidence, Mr Costa?

PN28

MR COSTA: Commissioner, I only see a need to call him for him to have his statement read into the record, but, apart from that, I have no other questions for him other than what's stated in the statement.

PN29

THE COMMISSIONER: It might be best if you do that.

PN30

MR COSTA: Okay. I call Mr Wright.

PN31

THE ASSOCIATE: State your full name and address.

PN32

MR WRIGHT: Stephen Wright, care of 321 Pitt Street, Sydney.

<STEPHEN WRIGHT, SWORN [4.39PM]
<EXAMINATION-IN-CHIEF BY MR COSTA [4.39PM]

PN33

MR COSTA: Mr Wright, do you have a copy of your statement, dated 20 January 2014, before you?---Yes, I do.

PN34

Are the facts that you've stated in that statement true and correct to your knowledge?---Yes, they are.

PN35

Commissioner, I ask that Mr Wright's statement, dated 20 January 2014, be tendered.

PN36

THE COMMISSIONER: I'll mark that as RTBU2.

EXHIBIT #RTBU2 STATEMENT OF MR WRIGHT DATED 20/01/2014

PN37

MR COSTA: No further questions.

PN38

THE COMMISSIONER: Mr Rauf, did you want to cross-examine?

PN39

MR RAUF: Commissioner, I've got no issues arising. We don't object to that statement.

PN40

THE COMMISSIONER: Right. Okay. So there's nothing anyone wants to ask Mr Wright then?

PN41

MR RAUF: No.

PN42

THE COMMISSIONER: I feel as though I should ask you a question myself, just to make it worth your while, but there's nothing I particularly wanted to ask. Thank you for giving your evidence and you may go back to the bar table with Mr Costa, should you wish.

**** STEPHEN WRIGHT XN MR COSTA

<THE WITNESS WITHDREW [4.40PM]

PN43

THE COMMISSIONER: Yes, Mr Costa.

PN44

MR COSTA: Commissioner, the statement that has just been tendered by Mr Wright explains that the union has participated in negotiations since June last year and the union provided the respondent with a log of its claims at the outset of those negotiations. The union has met with the respondent 16 times since the commencement of negotiations and has compromised or resolved a number of those claims from its original log, with six matters still remaining outstanding.

PN45

THE COMMISSIONER: Which are those that are set out in paragraph 6?

PN46

MR COSTA: That's right.

PN47

THE COMMISSIONER: Yes.

PN48

MR COSTA: Based on this evidence, Commissioner, we submit that the union has been genuinely and is genuinely trying to reach an agreement with the respondent and that the application should be made.

PN49

THE COMMISSIONER: Could I just ask a question, Mr Costa, which is just for information. I don't know whether you're the one to actually answer this or maybe I should have asked Mr Wright. What is a WAR day?

PN50

MR WRIGHT: It's a called a WAR day; work as required.

PN51

THE COMMISSIONER: Right.

PN52

MR WRIGHT: They're a day in a roster where there is no actual work, but the employee can be called in to work on those days.

PN53

THE COMMISSIONER: Okay. Thank you. Perhaps I should have asked, Mr Rauf, but there's no issue about me needing to ask that when he is under oath.

PN54

MR RAUF: No.

PN55

THE COMMISSIONER: It was just for my information.

PN56

MR RAUF: That's fine, Commissioner.

PN57

THE COMMISSIONER: Thank you. So that's what you want to put, Mr Costa?

PN58

MR COSTA: Yes, Commissioner.

PN59

THE COMMISSIONER: Thank you. Mr Rauf?

PN60

MR RAUF: Thank you, Commissioner. As I adverted earlier, we had some concerns relating to compliance with, in particular, some of the requirements in section 437. In light of those, I'm instructed to oppose the application in its current form and indeed the proposed order, as well. There are four issues in particular which are of concern, some of more weight than others. Very briefly I'll mention it and I'll just then go to each one; but they concern the respondent entity which has been identified, the specification of the group of employees to be balloted, clarity as it stands - a lack of clarity - around the closing date and perhaps most importantly the questions which are to be put for the ballot.

PN61

If I can just turn to those four. I'm looking at the amended application which was handed up today and it states as the name of the employer, Aurizon, which is incorrect, and then in the proposed order there's a reference to Pacific National, which it certainly isn't, at (1). Both of those are incorrect. The employer entities are (2) and they were indicated in the notice of representational rights, and they are the ones that should be indicated on these forms.

PN62

Secondly, turning to the group of employees which is specified. Now, in the application the relevant employees are said to be those covered by the existing agreement. If I can firstly point out that section 437(5) talks about the manner in which the employees are to be expressed. It's to be expressed in reference to those who are to be covered by the proposed enterprise agreement, not by any existing, so there's an issue there.

PN63

To the extent that the proposed order again - it slightly embellishes on that, but again it's only with reference to a further document which exists between the parties. We say that it should be clear on the face of the application as to the employees who are the subject or covered by this application and it isn't unless one then goes back to the agreement, but even then it's not clear what is the relevant classifications or which employees are covered; so that's the second point. Thirdly, and not as significant, there is lack of clarity on our part as to the date by which the ballot is to close. Now, the application - - -

PN64

THE COMMISSIONER: Mr Rauf, can I just say in relation to that - - -

PN65

MR RAUF: Yes.

PN66

THE COMMISSIONER: Are you looking at the draft order that came in with the initial application? Is that what you're looking at?

PN67

MR RAUF: There was an amended one filed, I think on the 17th.

PN68

THE COMMISSIONER: An actual draft order? I've only got an amended application.

PN69

MR RAUF: I see. We were provided with a draft order.

PN70

THE COMMISSIONER: Well, I haven't seen that. I'm sorry. I have no idea what is in that, but in the initial one - and there may in fact be a difference - - -

PN71

MR RAUF: I'll see if I've got a spare copy that I can provide to you, Commissioner.

PN72

MR COSTA: I can provide it.

PN73

THE COMMISSIONER: Someone will have to bring it up here, because my associate has gone to print one out.

PN74

MR RAUF: Permission to approach, Commissioner.

PN75

THE COMMISSIONER: Yes, that's all right. Actually number 4 is in fact the same as in the initial application.

PN76

MR RAUF: I see.

PN77

THE COMMISSIONER: Could I just say - and I'm sure that you'll make very eloquent submissions about it - that is in fact the standard that this tribunal puts in its orders and the reason, if I could explain it, is that that is what the Electoral Commission has asked us to have in our orders. That allows them 20 working days in which to complete the ballot.

PN78

MR RAUF: Yes.

PN79

THE COMMISSIONER: Often they do it earlier, but they have asked for it to be left in - I quite appreciate it is in perhaps uncertain terms - to give them the latitude to be able to work.

PN80

MR RAUF: Yes.

PN81

THE COMMISSIONER: Certainly make what submissions you want, but I - - -

PN82

MR RAUF: It was more just we were a little bit puzzled, because the application stated 4 February in very precise terms and the proposed order which was appended stated 20 days.

PN83

THE COMMISSIONER: Yes.

PN84

MR RAUF: I wondered whether, just to get clarity, is it 4 February or is it 20 days, because both have been indicated to us.

PN85

THE COMMISSIONER: Well, regardless of in fact whatever the union asked, assuming an order is issued, it would be (indistinct) 20 working days, because, as I said, the Electoral Commission has indicated - - -

PN86

MR RAUF: I accept that.

PN87

THE COMMISSIONER: Now, of course that could be, as a matter of practice - it often is an earlier date.

PN88

MR RAUF: Yes.

PN89

THE COMMISSIONER: Very occasionally they may ask for an order - as in the Electoral Commission might ask for the order to be varied to in fact extend that period of time if they are unable to meet that time.

PN90

MR RAUF: Yes, certainly.

PN91

THE COMMISSIONER: But it's our standard order that has that - - -

PN92

MR RAUF: That explains, I think, the issue that - - -

PN93

THE COMMISSIONER: Right.

PN94

MR RAUF: The confusion we had about which date.

PN95

THE COMMISSIONER: Of course. I can understand that, yes.

PN96

MR RAUF: That helps. Thank you, Commissioner.

PN97

THE COMMISSIONER: Yes.

PN98

MR RAUF: The fourth and final point which perhaps is more significant than the preceding, in the questions which have been put, there are two questions; namely at (3) and (4), periods of work to rule, periods of go slow. Now, in our submission those questions and the type of action which they contemplate, is inherently vague and ambiguous. I'd like, if I could, very briefly to refer to some authority on the point. There are two decisions. If I can perhaps hand them up.

PN99

In that regard if I can, before I go to the authorities, and just again coming back to the Act which of course is the criteria by which we must measure the application, 437(3)(b) clearly indicates that the questions are put to the employees including the nature of the proposed industrial action.

PN100

THE COMMISSIONER: Yes.

PN101

MR RAUF: And having regard to the object, which again refers to the phrase "particular protected action". There has been authority - consideration by this tribunal as to what that all means. It certainly permits a level of generality. I mean, the driving principle there is when an employee attends to vote, they must have some idea as to the relevant or type of industrial action.

PN102

I handed up - there were two decisions which I think are instructive on that point. The first of those, very quickly, is the 2006 decision by Richards SDP. Albeit that it related to the old Act, the discussion concerned similar provisions and the point made there was - in paragraphs 16 and 17 - that for the industrial action to be identified with sufficient particularity, if you like, there needs to be some indication as to the duration, but also the type. Then his Honour went on at paragraph 30 in that decision to accept an amendment to the relevant question so that there was reference in that case to a duration.

PN103

That sort of highlights the need for a level of information about the type and duration; but perhaps most importantly and relevantly, the decision of O'Callaghan SDP which was from 2011. Now, in that the question which was under scrutiny there, identified at page 21, is an unlimited number of indefinite or periodic bans on specified duties or tasks. It's slightly different, in my submission - - -

PN104

THE COMMISSIONER: Sorry, what paragraph is that?

PN105

MR RAUF: That is, Commissioner, on page 2. It's the very first paragraph in the decision.

PN106

THE COMMISSIONER: Right, I see. At the very top of the - - -

PN107

MR RAUF: Yes.

PN108

THE COMMISSIONER: Okay, yes.

PN109

MR RAUF: The discussion concerned whether that was sufficient to meet the requirements of the Act. I would submit that what we are dealing with is far more general than what was under consideration there. Now, in respect of that, if I can then take the Commissioner to paragraph 24 where the Senior Deputy President acknowledged that given the juris prudence that has developed around what is permissible and the ambit - look, it might get through on that. However, it was acknowledged that it was very broad and there were some real concerns which were highlighted from 25 onwards; namely, that given the vague or general nature in which that particular question was expressed, there was a real risk that when it came time to specifying the type of action in a notice, that action may not be authorised by this ballot.

PN110

There was the further implication that given the general nature of it, the employer was within its rights to seek an extension of the notice period required from (3) to more than that, and that's discussed at paragraph 28 of the decision where the Senior Deputy President says, well, when you're face with a general - or questions such as this, the employer would be within its rights to seek an extension on the basis that it is quite exceptional, and bearing in mind there's a need for the employer to respond to and prepare for any action.

PN111

Here we are dealing with bulk haulage across the Hunter Valley, et cetera, and there are some serious consequences. The employer would need sufficient opportunity once it gets the notice to - well, what is it talking about and then go from there, whereas, as it stands, it's very vague. I mean, this decision was useful because what occurred there is that the union was asked to go away, consider its application, whether it wished to refine it, submit it. The employer, I presume, had nothing arising and the matter went through.

PN112

Really what we've got in mind is a similar thing. We're not here to be obstructive or raise any barrier that can't be crossed, but we do have some very real concerns. What we would seek is that there be some consideration of these concerns. It might be that it appears that the application has been hastily drafted and filed with some of the other matters, which can be easily overcome, but certainly with the questions, that's something which concerns us; because work to rule or go slow, what does that mean? Work to rule; what rule? The contract, as it's typically understood, the enterprise agreement, the procedures; it's inherently unclear and vague, and we are very concerned about what those questions mean, having no idea.

PN113

What we would seek is that there be some opportunity where the union can perhaps consider the concerns which we have raised. We're happy to liaise and then perhaps provide a revised application which does address the concerns. We can review that and it might be that the matter can get through without any further issue or indeed potentially appearance by the parties. As it stands in its current form, we have some real concerns, Commissioner.

PN114

THE COMMISSIONER: Okay. Thank you.

PN115

MR RAUF: Thank you.

PN116

THE COMMISSIONER: Mr Costa, obviously you can make what submissions you want, but I'm just wondering whether it might be worth taking up the suggestion that has just been made. Now, whether that be taken up - I keep looking and the clocks don't work, but whether that be now so that, you know, we give you an opportunity to take that on board and have some discussions with Mr Wright and then, if necessary, have some liaison with the company or whether it might be best to have a further period of time.

PN117

I appreciate you may need to discuss the issues with others within your organisation and we could return, you know, at a later time, but not probably this evening. Do you have a view? I realise you may want to have a word to Mr Wright on that before giving your response.

PN118

MR COSTA: Commissioner, I'm happy to hear Mr Rauf on the specificity that he would like about those two questions, to understand exactly what more specific detail he would want. I do note that the two authorities that he has put up are both single-member Commissioner matters and they each deal with bans. They don't deal with the words that are used in these questions - - -

PN119

THE COMMISSIONER: Yes.

PN120

MR COSTA: - - - which may be a little bit confusing to a big city lawyer, but are well understood in the industrial landscape. Commissioner, I'd submit that the words "work to rule" and the words "go slow" have been used, at least in this world, for some time. If I'm to address the requirements of the Act, which is that the matters should be stayed with sufficient clarity so that the employees can make an informed choice - and there's considerable authority on that - I'd submit that those words are sufficiently clear for the members to - - -

PN121

THE COMMISSIONER: So you don't want to take an opportunity to have a - time to have some discussions?

PN122

MR COSTA: Commissioner, I'm willing to have discussions if they're to be productive discussions, but if they're to be discussions purely to confuse this issue and to further delay this process, I don't see any utility in them. However, what I would say is I'm happy to take a 15-minute adjournment to hear what kind of further specificity is required. If we can reach some sort of agreement on that, I'm happy to amend the application.

PN123

THE COMMISSIONER: Okay. Would that be suitable to you, Mr Rauf?

PN124

MR RAUF: Commissioner, I suppose we're happy to have discussions. What I don't want to do is draft the union's application for it.

PN125

THE COMMISSIONER: No, I'm not suggesting that you should.

PN126

MR RAUF: I have raised the concerns.

PN127

THE COMMISSIONER: Yes.

PN128

MR RAUF: Our preference would be that if they could submit to us an amended application addressing the concerns - I mean, things such as the date in the application being consistent or the relevant employer entities, that's straightforward enough - - -

PN129

THE COMMISSIONER: Yes. That obviously needs to be dealt with, yes.

PN130

MR RAUF: Yes, and that's straightforward enough. These are just things which may have been overlooked in the haste in which it was prepared.

PN131

THE COMMISSIONER: Yes.

PN132

MR RAUF: I don't know, but certainly as for the phrases around "go slow" - and I'm not sure it's a big city thing at all, but they are inherently vague. If the employees are asked, "What does go slow mean?" or in the context of a bulk haulage operation, I expect that most may not be able to answer and those that may, may give differing answers; but we're content to have a discussion, Commissioner.

PN133

THE COMMISSIONER: I don't mind. It might be useful to have an adjournment. Whether you have discussions or whether it's just Mr Costa and Mr Wright having some discussion amongst themselves and then whether they want to put something to you or they don't, we'll find out shortly.

PN134

MR RAUF: Yes.

PN135

THE COMMISSIONER: But, Mr Costa, also if you could take on board during that discussion those other concerns that Mr Rauf raised, particularly in relation to the naming of the employer, which obviously - I mean, there's no point having an order in relation to employees of an entity that doesn't employ the people that you're seeking to have balloted.

PN136

MR COSTA: Yes, Commissioner. I concede that there was an error - - -

PN137

THE COMMISSIONER: Yes, so if you could take that on board. There's also the issue about the group. I don't think we need to deal with the closing date any more. That's clearly our doing, if I can put it that way, and also the thing about the question. Now, as I say, it might be you want to put something to Mr Rauf before we come back on or not, but we'll adjourn for 15 or so minutes.

PN138

MR COSTA: Yes.

PN139

THE COMMISSIONER: I mean, I'm not tying you to exactly 15 and if you want a little longer, please - I'll perhaps get my associate to remain somewhere nearby so that you could let her know, or at least get her phone number so that we can come back, but we'll adjourn for 15 or so minutes.

PN140

MR COSTA: Yes.

PN141

THE COMMISSIONER: Thank you.

<SHORT ADJOURNMENT [5.00PM]
<RESUMED [5.19PM]

PN142

THE COMMISSIONER: Yes, Mr Costa.

PN143

MR COSTA: Unfortunately, Commissioner, there has been no agreement between the parties on the amendment to the questions of the ballot - - -

PN144

THE COMMISSIONER: Right. Could I just clarify in relation to question 1, the employees and the employer entity, is there any issue about the union amending that to reflect the appropriate employer?

PN145

MR COSTA: No, Commissioner.

PN146

THE COMMISSIONER: Right. So that would be amended.

PN147

MR COSTA: That's right.

PN148

MR RAUF: I've indicated, Commissioner, to my friend two entities.

PN149

THE COMMISSIONER: Yes.

PN150

MR RAUF: And I've indicated to my friend the details of those.

PN151

THE COMMISSIONER: Right. And there's no difficulty with it being amended to reflect that?

PN152

MR COSTA: No. I can give you those entities now. The first one is Aurizon Operations Limited.

PN153

THE COMMISSIONER: Is that "Limited" in full?

PN154

MR COSTA: That's right. It's in full. Then the second company is Interail Australia Pty Ltd.

PN155

THE COMMISSIONER: Interail Australia - - -

PN156

MR COSTA: Pty Ltd.

PN157

THE COMMISSIONER: Right.

PN158

MR COSTA: Perhaps the second matter I should address, Commissioner, is item number 5 in the application, which is the proposed date by which voting is to close. We're happy to amend that - - -

PN159

THE COMMISSIONER: I've got (4), haven't I?

PN160

MR COSTA: Which says (4) - - -

PN161

THE COMMISSIONER: Question 4? I'm just looking at the draft order.

PN162

MR COSTA: I'm taking you to the application, Commissioner. Sorry. I apologise for the confusion.

PN163

THE COMMISSIONER: This is the amended application, is it?

PN164

MR COSTA: That's right.

PN165

THE COMMISSIONER: Okay. Yes.

PN166

MR COSTA: I take you to item number 5. There was an issue raised by the company that that's not consistent with the draft order.

PN167

THE COMMISSIONER: Yes.

PN168

MR COSTA: And we'd like to have that amended to be consistent with the draft order and read the same orders, which are:

PN169

The date by which voting in the protected action ballot is to close is no later than 20 workings days from the date of this order.

PN170

THE COMMISSIONER: Yes.

PN171

MR COSTA: That, I believe, Commissioner, leaves us with the only outstanding matter being the questions to be put to - - -

PN172

THE COMMISSIONER: Could I just clarify, I think there's also a question about the groups.

PN173

MR RAUF: There is. The specification of the employees to be balloted, as it stands, is with reference to an existing enterprise agreement as opposed to what the Act says.

PN174

THE COMMISSIONER: That's in the application, isn't it?

PN175

MR RAUF: And also in the proposed order, because the - - -

PN176

THE COMMISSIONER: I thought it said - because the proposed order has got "will be regulated by the proposed agreement to replace."

PN177

MR RAUF: In terms of the employees though, still one has to go back to that instrument to try and understand who they are; so on the face of the application, it's not clear as required by the Act.

PN178

THE COMMISSIONER: Right. I see.

PN179

MR RAUF: It still references an old agreement.

PN180

THE COMMISSIONER: Okay. I understand what you say, yes. Yes, Mr Costa.

PN181

MR COSTA: Commissioner, although I don't agree with Mr Rauf on his characterisation of the need for that change, I'm happy to consent to that change to save us all some time.

PN182

MR RAUF: Sorry, what is that change?

PN183

MR COSTA: Well, to change it so that it's the group of employees to be covered by the proposed agreement as opposed to - - -

PN184

MR RAUF: Which employees though?

PN185

MR COSTA: All employees to be covered by the proposed agreement who are members. Commissioner, I think it's easiest done by amending item 3 to the application to read:

PN186

All employees of the respondent to be covered by the proposed enterprise agreement who are members of the Australian Rail, Tram and Bus Industry Union.

PN187

THE COMMISSIONER: And how would you see clause 3 of the draft order? Do you see that as being amended at all, Mr Costa?

PN188

MR COSTA: No, Commissioner.

PN189

THE COMMISSIONER: I just wanted to clarify it. So there is the issue now of the questions and specifically (3) and (4).

PN190

MR COSTA: Commissioner, it has been put that the words "work to rule" and the words "go slow" which are specified in question 3 and question 4 respectively, that are questions to be put to the employees in the protected action ballot, are unclear and ambiguous. I submit that they're not and that's because they use language that has been used in an industrial context for quite some time. Further, the matters that must be specified in the ballot under section 437(3)(b) is -

PN191

the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action.

PN192

There are several cases which have required that the question should be stated with sufficient clarity so that employees can make informed choices. I'm referring specifically to the matter of John Holland Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (2010). There are also a number of other matters that go to this point. The company hasn't provided any evidence why these words are ambiguous or that they would be words that wouldn't be understood by the union's members.

PN193

I'm prepared to call Mr Wright to give his opinion on what he thinks these terms mean and whether he believes that they would be words easily understood by the members of the union, if that's necessary. However, I don't think that it is. I think even off their ordinary meaning, they can be perfectly understood just by the people who are here in this room and that is to "work to rule" is to do nothing else than what there are rules for and to work at "go slow" is to work slowly, Commissioner. If you're not with me on those submissions, then I ask that in the alternative the order be made with those two questions taken out.

PN194

THE COMMISSIONER: Okay. Anything else, Mr Costa?

PN195

MR COSTA: Nothing further.

PN196

THE COMMISSIONER: Obviously I have taken into account what has been put today and if I can just look at the requirements of the legislation, although, as I understand it, there is a limited degree to which there is contest in relation to this application. There is no suggestion that the application has not been properly made and that the RTBU is not an organisation that is not a bargaining representative or that the union has not been and is not continuing seeking to genuinely making an agreement. The issues that need to be determined fall fairly and squarely from the application and the terms of the draft order.

PN197

As I understand it, four issues have been raised, one of which has been dealt with, being the closing date of the ballot. I note that Mr Costa has made an oral application to amend the application, which is RTBU1, to replace the reference to 4 February 2014 with no later than 20 workings day from the date of any order that is made. The second issue deals with the name of the employer in the application and also obviously in the draft order that has been provided. As I understand it, that issue has also been addressed by Mr Costa making application to vary, to replace the reference to the incorrect employer with the two correct employers, being Aurizon Operations Limited and Interail Australia Pty Ltd.

PN198

The group of employees issue: I am prepared to accept that the group that has been identified is sufficiently clear. It does not identify by way of classifications or type of work that these persons do, but I believe that the description of that group that is set out in the draft order 3 is a sufficient description of the group to be balloted, which leaves me with the two issues concerning the questions that are being sought.

PN199

Despite what you have put, Mr Costa, I do not agree that those questions are clear. I understand that "work to rule" and "go slow" are both terms used frequently in industrial parlance and I certainly accept that, but "work to rule" could mean many things to many persons, in the sense that - and I think Mr Rauf actually addressed some of this - it could mean in accordance with the employees' contracts. It could mean the existing enterprise agreement. It could, for all I know, be the union's rules on how work is to occur in a certain situation. Without such clarity, it appears to me to be that employees may possibly not be in a position to make an informed choice as to what they are being asked to vote upon.

PN200

Similarly, in relation to periods of go slow, "go slow" could once again mean different things to different persons. Now, it may possibly be that to each and every one of these individuals, "go slow" may mean instead of driving the trains at - I don't know at what speed they do drive, but, you know, instead of driving them at X speed, it's Y speed, but on the other hand there might be employees who think that means Z speed or something else and it may, for that matter, mean some other restriction. Both of those questions, I consider are not questions that are suitably descriptive of the nature of the action and, more particularly, the required specificity of those questions.

PN201

Now, as I understand it, you have put an alternative position, which is that if I am against you on those two, that you wish to sever those two questions from the application.

PN202

MR COSTA: That's correct, Commissioner.

PN203

THE COMMISSIONER: Right. Is there any difficulty with that, Mr Rauf?

PN204

MR RAUF: I think if they were to be severed, that would obviously remove the concern which we had.

PN205

THE COMMISSIONER: Yes.

PN206

MR RAUF: Ideally, it would have been good to see the application in the final form, but, I mean, I think - - -

PN207

THE COMMISSIONER: Yes. What I was proposing, given that I think nearly every one of these has perhaps been - I think except that the ballot has been conducted by the Electoral Commission, nearly everything has been changed. What I was proposing to do is to ask Mr Costa to prepare a further draft order and a varied application.

PN208

MR COSTA: Yes.

PN209

THE COMMISSIONER: To provide that to yourself.

PN210

MR RAUF: Yes.

PN211

THE COMMISSIONER: And to myself. I don't know, is within 24 hours suitable, Mr Costa? Is that doable?

PN212

MR COSTA: Yes.

PN213

THE COMMISSIONER: I realise it's late in the day. Within 24 hours.

PN214

MR RAUF: We could respond on that fairly quickly.

PN215

THE COMMISSIONER: And then, Mr Rauf, if you could liaise with your client and respond.

PN216

MR RAUF: Yes.

PN217

THE COMMISSIONER: Would a further 24 hours be suitable?

PN218

MR RAUF: That would be suitable.

PN219

THE COMMISSIONER: I mean, obviously if it's something you can do earlier, then do.

PN220

MR RAUF: Yes, indeed.

PN221

THE COMMISSIONER: And, depending upon your response, it may be that I can issue an order in the amended terms without the requirement for people to come back.

PN222

MR RAUF: Yes.

PN223

THE COMMISSIONER: Obviously if there is anything of a major concern, then you're both at liberty to ask for the matter to be re-listed.

PN224

MR RAUF: I think they address our concerns, but I would certainly appreciate the opportunity to have a look at the application.

PN225

THE COMMISSIONER: Yes.

PN226

MR RAUF: And we could correspond with your associate to indicate our position.

PN227

THE COMMISSIONER: Of course.

PN228

MR RAUF: We don't anticipate that there will be anything further, but - - -

PN229

THE COMMISSIONER: Yes, just in case Mr Costa puts some new thing in there you don't expect. I am sure he won't, but, yes, certainly if you could provide that.

PN230

MR RAUF: Yes.

PN231

THE COMMISSIONER: And obviously, Mr Costa, if you can get it to Mr Rauf earlier, then we'll probably get an answer earlier about what the company's response - - -

PN232

MR RAUF: Yes. Thank you, Commissioner. I think that will certainly meet our concerns.

PN233

THE COMMISSIONER: Okay. Do you understand or do you need some clarification on what needs to be changed?

PN234

MR COSTA: No, Commissioner. I just want to clarify though that if there are any further objections with the application, that they be limited purely to the amendments to the application and they not be new things arising out of the application - - -

PN235

THE COMMISSIONER: I see what you mean, yes.

PN236

MR RAUF: I'm content to indicate that if the application is as it is, bar those issues which have been addressed - provided that they address the concerns as have been discussed. Like I say, we're not here to be obstructive. We just want a clear course going forward.

PN237

THE COMMISSIONER: Okay. Thank you for all attending today.

PN238

MR RAUF: Thank you.

PN239

THE COMMISSIONER: The matter is now adjourned.

<ADJOURNED INDEFINITELY [5.35PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #RTBU1 APPLICATION PN24
STEPHEN WRIGHT, SWORN PN33
EXAMINATION-IN-CHIEF BY MR COSTA PN33
EXHIBIT #RTBU2 STATEMENT OF MR WRIGHT DATED 20/01/2014 PN37
THE WITNESS WITHDREW PN43