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B2015/604, Transcript of Proceedings [2015] FWCTrans 387 (29 June 2015)

TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009 1052048



COMMISSIONER JOHNS

B2015/604

s.437 - Application for a protected action ballot order

Association of Professional Engineers, Scientists and Managers, Australia, The

and

Commonwealth of Australia (acting through and represented by the Murray-Darling Basin Authority)

(B2015/604)

Murray-Darling Basin Authority Enterprise Agreement 2011-2014

Sydney

5.05 PM, THURSDAY, 18 JUNE 2015

PN1

THE COMMISSIONER: Good afternoon, parties. Mr Smith from APESMA, are you there?

PN2

MR SMITH: Yes, Commissioner.

PN3

THE COMMISSIONER: Yes, and Ms Schumann?

PN4

MS SCHUMANN: Yes, Commissioner.

PN5

THE COMMISSIONER: Yes. Good. Thank you. Look, the reason why I ve called this matter on is that, as you re all aware, there s this application being made for a protective action ballot order, and I sought the views of the employer about the application. I ve had to bring it on because there s a bit of an inconsistency in, Ms Schumann, what you say.

PN6

MS SCHUMANN: Right.

PN7

THE COMMISSIONER: You say that the Murray Darling Basin Authority does not object to the application but would like to make a submission in relation to the application.

PN8

MS SCHUMANN: Right.

PN9

THE COMMISSIONER: Your options really are to object or not object, and the primary two bases upon which someone can object is they could say that the union is not or has not been genuinely trying to reach agreement; and I don t understand you to be saying that.

PN10

MS SCHUMANN: Correct.

PN11

THE COMMISSIONER: The other basis is that the ballot questions don t provide sufficient information about the nature of the proposed industrial action. It seemed to me that looking at the three questions you ve identified, it wasn t clear to me whether you were saying that they were ambiguous and it wouldn t be clear to the employees what they were voting on.

PN12

MS SCHUMANN: Yes.

PN13

THE COMMISSIONER: Or I guess it just wasn t clear to me exactly what you were saying.

PN14

MS SCHUMANN: Thank you. I am saying, Commissioner, that they are unclear. In particular, question 1 is an issue for us because we are - - -

PN15

THE COMMISSIONER: Hang on. Hang on. It s not so much whether it s an issue for you.

PN16

MS SCHUMANN: Right.

PN17

THE COMMISSIONER: Industrial action is meant to cause pain to employers and excuse me that s the whole intention of industrial action, to cause some inconvenience to employers such that they will yield to the industrial demands of those engaging in the action. So it s not so much whether you ve got a problem with it. The question is, is the question ambiguous such that it would not be understood by employees.

PN18

MS SCHUMANN: Right.

PN19

THE COMMISSIONER: So is that what you re saying or not?

PN20

MS SCHUMANN: Yes, that is what I m saying.

PN21

THE COMMISSIONER: All right. So why is it ambiguous?

PN22

MS SCHUMANN: Well, it is ambiguous because I do not know what the ordinary (indistinct) refers to.

PN23

THE COMMISSIONER: Sorry, you ll have to say it again. You just broke up a bit then.

PN24

MS SCHUMANN: I do not understand what the ordinary place of work would refer to, and I believe staff would be confused and not understand that.

PN25

THE COMMISSIONER: What do you say about that, Mr Smith?

PN26

MR SMITH: Commissioner, in terms of ordinary place of work, we think it s fairly straight-forward. It s actually the office or location in which the employee works, and the whilst we re I m aware there may be a couple of employees in Murray Darling Basin Authority that have home-based offices, the vast majority of employees work in quite distinct office locations. I guess we would reject the idea that there s any ambiguity in terms of the place where someone would ordinarily work.

PN27

THE COMMISSIONER: Why would it be something that employees wouldn t understand, Ms Schumann?

PN28

MS SCHUMANN: Well, this is the situation. We are located at 40 Allara Street and 51 Allara Street. Some of the staff work at 40 Allara Street and some staff work at 51 Allara Street. Where would the ban be imposed?

PN29

THE COMMISSIONER: Are you saying that there are employees who work at both?

PN30

MS SCHUMANN: The nature of their work is that they interact with each other, so does this mean that in this interaction they would be confined to that place of work and no travel would occur between locations?

PN31

THE COMMISSIONER: Well, if, for example, their usual place of work they spend 60 per cent of their time at once place then this would be a ban on them going to the other place. It might cause some difficulty for an employee who is 50/50 at both but in respect of employees where they can identify which is their ordinary place of work, it would mean not travelling to the other site, yes. That s what I understand. Mr Smith?

PN32

MR SMITH: Commissioner, that s correct.

PN33

THE COMMISSIONER: Is there any other ambiguity associated with that, Ms Schumann?

PN34

MS SCHUMANN: If that is the intent, it s very clear.

PN35

THE COMMISSIONER: Yes. All right. Are there any other questions that you think there s some ambiguity with?

PN36

MS SCHUMANN: There are if the question is about ambiguity, no.

PN37

THE COMMISSIONER: All right. So is there any other basis upon which you object to the making of the protective action ballot order?

PN38

MS SCHUMANN: In using the terms and conditions that you have defined, no, although I would point out that and I know the purpose of action is to inconvenience us maximally, I would point out though that some of these bans will have a detrimental effect on the economy and could cost the lives in the circumstance where we are faced with an emergency in relation to River Murray operations. That concerns me greatly. I m sure under the terms and conditions you ve outlined, that s not a reason to object but I feel it s very important that you are made aware of that, Commissioner.

PN39

THE COMMISSIONER: Well, if it s the case that when this industrial action is engaged in, the dire circumstances that you ve just described occur, then the Murray Darling Basin Authority would have a different remedy under a different section of the Act, and I would invite you to look at section 424 of the Fair Work Act. That might be your remedy if this industrial action is engaged in and if it has the dire consequences that you refer to.

PN40

MS SCHUMANN: Thank you, Commissioner. I am aware of those clauses and we will be utilising them.

PN41

THE COMMISSIONER: Is there anything further this afternoon, Mr Smith?

PN42

MR SMITH: No, Commissioner.

PN43

THE COMMISSIONER: Ms Schumann?

PN44

MS SCHUMANN: No, Commissioner.

PN45

THE COMMISSIONER: All right. Well, I propose to issue the order and I ll do that later this evening. Thank you so much for your time today.

PN46

MR SMITH: Thank you, Commissioner.

PN47

MS SCHUMANN: Thank you.

PN48

THE COMMISSIONER: Good.

ADJOURNED INDEFINITELY [5.12 PM]


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