B2015/397, Transcript of Proceedings [2015] FWCTrans 216 (13 April 2015)

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PN1

THE COMMISSIONER: Good afternoon. Please take a seat and remain seated. Could I have the appearances, please.

PN2

MR A NASH: NASH, initial A for the CPSU.

PN3

MR STOKES: STOKES, C, for the Bureau of Meteorology.

PN4

THE COMMISSIONER: Thank you, Mr Stokes.

PN5

MR FARRELL: FARRELL, A, for the Bureau of Meteorology.

PN6

THE COMMISSIONER: Thank you.

PN7

MR FARRELL: OWEN, M, Melissa may make it but she was busy getting some communications.

PN8

THE COMMISSIONER: Good, thank you. I think that the most recent communication I’ve received came in a minute before two. That’s from Ms Owen and it says that the Bureau is seeking an extension of the notice period. We’ve held discussions with the CPSU and I think that that’s what’s otherwise reflected in the draft order, is that the case?

PN9

MR STOCKS: That’s correct.

PN10

THE COMMISSIONER: Good, thank you. Have you seen a copy of that, Mr Nash? You may not have it.

PN11

MR NASH: No.

PN12

THE COMMISSIONER: I only received it just now.

PN13

MR NASH: If it’s not asking for anything above the draft order.

PN14

MR STOCKS: Sorry about that. We were very much engaged in meeting for discussions right up to the last minute, Mr Nash. It’s similar to the letter that was provided previously. We gave a letter to you now, just as background for the Commissioner.

PN15

THE COMMISSIONER: Good, thank you very much. Perhaps then, Mr Nash, you might speak to the formalities of the application please.

PN16

MR NASH: Thanks, Commissioner. Would you like me to outline the changes to the draft order before I address the technical matters?

PN17

THE COMMISSIONER: I certainly see the extended - and again, I’ve only just received this within the past half an hour, but I think the changes principally concern the period of notice for the action and perhaps one or two of the questions, is it?

PN18

MR NASH: Yes, there’s some changes in wording to questions 1 and 3.

PN19

THE COMMISSIONER: Yes.

PN20

MR NASH: What was question 1(a) has been now broken up between (a) and (b) to answering telephone calls, except in regional forecasting centres, weather service offices and the Bureau National Operational Centre. Then 1(b) is responding to and/or making telephone calls.

PN21

THE COMMISSIONER: I see.

PN22

MR NASH: There’s also a change to question 3. It previously said “An unlimited number of actions in the form of reading a prepared statement at the start of a media interview”. We’ve changed that to “An authorised CPSU statement” and that makes it consistent with questions 4 and 5.

PN23

THE COMMISSIONER: Good, thank you. Unless there are any other changes, perhaps we will go to the periods of notice.

PN24

MR NASH: Yes. We’ve had a chance to discuss and agree on this. We have agreed that exceptional circumstances apply in relation to questions 3, 6 and 7. Question 3, we have agreed that there may be a notice period of at least seven working days.

PN25

For question 6, we have agreed that there will be a notice period of five working days for employees working in regional offices, field offices, hazards warning and forecasting division, observations and infrastructure division and information systems and services division and for all other employees, it will be three working days.

PN26

In relation to question 7, we have agreed that the notice period for employees in regional offices, field offices, hazards warnings and forecastings division, observations and infrastructure division and information systems and services division will be seven days, and it will be three working days for all other employees. The notice period will be three working days for all other actions.

PN27

THE COMMISSIONER: Thank you. Either Mr Nash or Mr Stocks, just in relation to 13.1, could you assist me with the names of the divisions, however described. In clause 13.1.2, you will see that there is reference to working in regional offices, field offices and hazards.

PN28

MR STOCKS: There are three divisions that we regard as operational divisions in the Bureau. They are those divisions called hazards, warning and forecast division.

PN29

THE COMMISSIONER: I see.

PN30

MR STOCKS: Another one is called observation and infrastructure division and the third one is information systems and services division.

PN31

THE COMMISSIONER: Thank you, I wasn’t sure where the commas or semicolons were supposed to go there.

PN32

MR STOCKS: Yes, correct.

PN33

THE COMMISSIONER: That will then be replicated in the next one, yes.

PN34

MR STOCKS: These negotiations were predicated on the basis of an undertaking that the CPSU are making around this letter.

PN35

MR NASH: Yes, and I’m happy to make that undertaking now. That is that actions taken in questions 1, 4, 6 and 7 will not endanger the safety of people or property in relation to the Bureau’s response to severe weather situations or the provision of aviation, defence and space weather services.

PN36

THE COMMISSIONER: Yes, obviously quite appropriate that that undertaking be given.

PN37

MR NASH: Yes, thank you.

PN38

THE COMMISSIONER: In relation to the actual application itself.

PN39

MR NASH: Yes, would you like me to address you on the technical requirements? CPSU is a bargaining representative at the Bureau of Meteorology. Their application shows the group of employees to be balloted at paragraph 3. It shows the questions to be put at question 4 and it has been amended in the draft order.

PN40

There will be a person other than the Australian Electoral Commission conducting the ballot as outlined in number 6 of the application and details of that person have been included. In relation to satisfying yourselves that the ballot agent is a fit and proper person, according to section 444, we will rely on the statutory declaration provided by Mr Richard Kidd. The application has not been made within 30 days of the normal expiry date and CPSU has been genuinely trying to reach agreement with the Bureau of Meteorology to show that we rely on the witness statement by Mr Thomas Fisher.

PN41

THE COMMISSIONER: Thank you. Is there anything else that you wish to add?

PN42

MR NASH: We have included draft directions for the conduct of the electronic ballot as required.

PN43

THE COMMISSIONER: They appear to be in what might be described as a standard form.

PN44

MR NASH: Yes.

PN45

THE COMMISSIONER: Yes, Mr Stocks.

PN46

MR STOCKS: Commissioner, we would like to state that we have been bargaining with both the bargaining reps, comprising CPSU, Professionals Australia, the staff reps and the ATU reps with the expectation that we will be able to put a pay offer on the table as soon as possible. Our objective is to provide the best possible pay offer for staff with the focus on maintaining job security, fulfilling work roles and career options.

PN47

We are disappointed that CPSU has decided to apply for a ballot at this time. We believe it’s premature. We are concerned about the actions that are proposed, and we are most concerned about action in relation to question 3. We are very unlike most other organisations which may have a very small number of people as spokepersons for the organisation.

PN48

The Bureau employs highly qualified people and provides them with media training and we allow our staff, up to a 100 of them to engage with the media at any one time. We do 700 regular radio broadcasts, 500 of which are on the ABC.

PN49

This proposal, the question that they’re proposing here is somewhat outrageous from our perspective, because they’re actually commandeering a slot which is to provide information about weather circumstances both fair and otherwise, so we find this question very disturbing. We would like to put that on the table. In some form or other, we might need to come back to you about this matter. We asked the CPSU to include question 3 as part of their undertaking, but they weren’t able to do so.

PN50

THE COMMISSIONER: Do you have a residual concern about the question, Mr Stocks, because I understand that the draft order that’s been put forward is one that has been put forward on the basis that there will be no objection to the application?

PN51

MR STOCKS: I have a residual concern, but we don’t oppose the order at this time.

PN52

THE COMMISSIONER: Thank you. Is there anything else that you wish to add, Mr Stocks?

PN53

MR STOCKS: No, thank you, Commissioner.

PN54

THE COMMISSIONER: Thank you. Also, if you could pass on my thanks to Ms Owen, for forwarding that additional documentation.

PN55

MR STOCKS: I suppose there is just one other thing I would like to add, Commissioner, is I welcomed your statement on Friday about the parties getting together prior to lodging a draft order. That would have been preferable in these circumstances, given that Mr Nash and I spent a lot of the weekend trying to thrash this out. I think if that message got through to unions, then I think it would be a lot easier for all of us.

PN56

THE COMMISSIONER: Yes, that’s why I had made that comment on Friday. Indeed, it was as a result of discussions chaired by myself, as it were, in other proceedings, and resulted in discussions between yourself and the relevant union. Again, a settled form of the draft orders was achieved which went to addressing the concerns that the Bureau legitimately had in relation to extended periods of notice, given the crucial nature of the work involved.

PN57

MR STOCKS: Yes.

PN58

THE COMMISSIONER: Yes, thank you. Is there anything you wish to add, Mr Nash?

PN59

MR NASH: No, nothing else from me, thanks.

PN60

THE COMMISSIONER: I will announce my decision.

PN61

On 27 March 2015 the CPSU, that is the Community and Public Sector Union, made an application pursuant to section 437 of the Fair Work Act 2009, hereafter the Act, for an order concerning a proposed protected action ballot of certain employees of the Commonwealth of Australia acting through and represented by the Bureau of Meteorology.

PN62

Consequent, upon discussions between the parties themselves following the initial listing of the matter, the CPSU and the Bureau reached agreement concerning amendments to the proposed order, including the questions to be put and the extension of certain periods of notice given, the undoubted exceptional circumstances here. Today, the CPSU has also given formal undertaking, again in agreed form, concerning certain matters. Given the matters put forward by agreement, following the discussions between the parties, the Bureau has submitted that the application is not opposed, albeit, expressing some misgivings about one of the questions, being a matter which I am informed, agreement could not be reached in relation to, at the provision of an undertaking.

PN63

Further, there is no issue about the proposed appointment of RMK Investments Pty Ltd trading as Australian Election Company as the protected action ballot agent, and I am satisfied pursuant to section 444 of the Act as to the appointment of this agent as an alternative to the Australian Electoral Commission. I note that the draft directions are in what might now be described as a type of standard form.

PN64

On a consideration of the relevant provisions of the Act, the statutory declaration of Thomas Fisher, a bargaining advocate with the CPSU, relied upon, in support of the application, the agreed amendments to the proposed order and the submissions of the parties. I am satisfied as to the relevant statutory requirements having been met and thereby that the order must be made.

PN65

Mr Nash, Mr Stocks and Ms Farrell, I anticipate that the order and directions will issue later today. I will make some further editorial changes, as it were, or my associate will, to the draft order. The one thing that I might just mention in that regard. To the extent that there is highlighted in certain areas, file names - “B2015” slash and then the year - I was informed the other day by one of your colleagues, Mr Ben Fell, that that name actually needs to be changed to a dash, so it’s computer readable. I’m afraid it’s beyond my technological knowledge of these matters, but they’re the types of changes that will be made.

PN66

Thank you for your participation in the proceedings. Mr Stocks, could I particularly thank you. I recall I said to you the other day that I thought that it was above and beyond the call of duty that you were dashing straight from the airport to the Commission and dialling in by telephone. I’m grateful for the endeavours that you made in that regard to participate in the proceedings.

PN67

MR STOCKS: Thank you, Commissioner.

PN68

THE COMMISSIONER: Good, thank you. Is there anything else that needs to be attended to?

PN69

MR NASH: No, thank you, Commissioner.

PN70

THE COMMISSIONER: No. Thank you once again. The proceedings are adjourned, pending the issuing of a short decision noting that I’ve given my reasons now and also the issue of the order and the directions.

PN71

Thank you once again. Proceedings adjourned accordingly.

ADJOURNED INDEFINITELY [2.24 PM]

Fair Work Commission Transcripts

B2015/397, Transcript of Proceedings [2015] FWCTrans 216 (13 April 2015)