B2015/723, Transcript of Proceedings [2015] FWCTrans 444 (29 July 2015)

TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009

---

COMMISSIONER LEE

B2015/723

s.437 - Application for a protected action ballot order

Australian Rail, Tram and Bus Industry Union

and

KDR Victoria Pty Ltd T/A Yarra Trams

(B2015/723)

Melbourne

8.08 AM, WEDNESDAY, 15 JULY 2015

PN1

THE COMMISSIONER: Take appearances, please.

PN2

MS C KAZAKOFF: Thank you, Commissioner. Carita Kazakoff. I seek leave to appear on behalf of the applicant union pursuant to section 596 of the Act.

PN3

THE COMMISSIONER: Yes, thanks Ms Kazakoff.

PN4

MS L RUSSELL: Thank you, Commissioner. My name is Louise Russell. I seek permission to appear for KDR Victoria trading as Yarra Trams.

PN5

THE COMMISSIONER: Thanks, Ms Russell. I assume the permission is sought on the basis that there s some complexity in the matter and it will enable the matter to be dealt with more efficiently, is that right, Ms Kazakoff?

PN6

MS KAZAKOFF: Yes, thank you, Commissioner.

PN7

THE COMMISSIONER: Do you agree with that, Ms Russell?

PN8

MS RUSSELL: Yes, Commissioner.

PN9

THE COMMISSIONER: I make the necessary finding under section 596 and permission is granted. Ms Kazakoff?

PN10

MS KAZAKOFF: Thank you, Commissioner, and apologies for the delay in the start time this morning. Just as a preliminary matter, I understand your chambers has already been informed that there s been an agreement reached between the parties as to the resolution of this matter this morning. In general I can just start by saying that on the basis of an undertaking, which I will give shortly on transcript on behalf of the union, the respondent has indicated that it will not oppose the making of the orders and the terms sought today. Could I just please confirm that the Commission has a copy of the order that it received, the protected action which was attached to our application?

PN11

THE COMMISSIONER: Yes, I do.

PN12

MS KAZAKOFF: Thank you, Commissioner, and also a copy of the witness statement of Mr Altieri?

PN13

THE COMMISSIONER: Yes, I do.

PN14

MS KAZAKOFF: Thank you. And if I might just confirm that the jurisdictional prerequisites to the making of an order have been satisfied for the Commission?

PN15

THE COMMISSIONER: Subject to I m still in the position where the statement I was looking at the file this morning the statement of Mr Altieri is just a statement, it is not a statutory declaration, so it s probably appropriate matter for you that that be attested to in some way.

PN16

MS KAZAKOFF: Certainly.

PN17

THE COMMISSIONER: But I m presuming on the basis of your submissions that Ms Russell doesn t have any questions to put to Mr Altieri, and it s just a matter of that being brought into the evidence.

PN18

MS KAZAKOFF: That s my understanding, yes.

PN19

THE COMMISSIONER: I understood the correspondence about the undertaking going to the issue of how many days notice would be provided - - -

PN20

MS KAZAKOFF: Correct.

PN21

THE COMMISSIONER: - - - in respect of particular types of industrial action - - -

PN22

MS KAZAKOFF: Correct.

PN23

THE COMMISSIONER: - - - but not others, is that the case?

PN24

MS KAZAKOFF: That s the case, Commissioner.

PN25

THE COMMISSIONER: Yes.

PN26

MS KAZAKOFF: The particular types of action are number 1 in the proposed order is in general what I would describe as an overtime ban, and questions 9 and 10 are both stoppages.

PN27

THE COMMISSIONER: Right. And the basis of your understanding with the respondent is that if they re satisfied with an undertaking, there s no proposal to amend the order to provide for the extra days, is that right?

PN28

MS KAZAKOFF: Correct, that s my understanding.

PN29

THE COMMISSIONER: Right.

PN30

MS KAZAKOFF: The discussion with the respondents has been to the effect that we will provide the undertaking on transcript today.

PN31

THE COMMISSIONER: Yes.

PN32

MS KAZAKOFF: I can also provide a copy of the undertaking in writing to the respondent s representative, which is what they ve requested.

PN33

THE COMMISSIONER: Understood.

PN34

MS KAZAKOFF: And on the basis of that, it s agreed that there is no need for the undertaking to be reflected in the order.

PN35

THE COMMISSIONER: And the order would be consistent with the one that you filed with the application?

PN36

MS KAZAKOFF: That s correct, Commissioner.

PN37

THE COMMISSIONER: All right.

PN38

MS KAZAKOFF: That s correct, thank you.

PN39

THE COMMISSIONER: No, that s good enough. Shall we deal with Mr Altieri?

PN40

MS KAZAKOFF: Yes, certainly.

<PHILIP STEVEN ALTIERI, SWORN [8.12 AM]

EXAMINATION-IN-CHIEF BY MS KAZAKOFF [8.12 AM]

*** PHILIP STEVEN ALTIERI XN MS KAZAKOFF

PN41

MS KAZAKOFF: Thank you, Mr Altieri. Do you have a copy of a witness statement in front of you?‑‑‑Yes, I do.

PN42

And is that the statement that you made in relation to this matter on 9 July last Thursday?‑‑‑Yes, it is.

PN43

Thank you, and Mr Altieri, do you say that the contents of that witness statement are true and correct?‑‑‑Yes.

PN44

Do you have any alterations that you wish to make to the statement?‑‑‑No.

PN45

Thank you. Commissioner, we tender that statement.

PN46

THE COMMISSIONER: Yes. No objection to that, Ms Russell?

PN47

MS RUSSELL: No, Commissioner.

PN48

THE COMMISSIONER: So it s tenderd and marked as K1.

EXHIBIT #K1 WITNESS STATEMENT OF PHILIP ALTIERI DATED 09/07/2015

PN49

THE COMMISSIONER: Any questions for the witness, Ms Russell?

PN50

MS RUSSELL: No, Commissioner.

PN51

THE COMMISSIONER: Thanks for your evidence, Mr Altieri.

<THE WITNESS WITHDREW [8.13 AM]

PN52

THE COMMISSIONER: Yes, Ms Kazakoff?

*** PHILIP STEVEN ALTIERI XN MS KAZAKOFF

PN53

MS KAZAKOFF: Thank you, Commissioner. In terms of the jurisdictional prerequisites for the making of an order, I confirm first of all that the applicant has standing under section 437(1) of the Act to make the application as they re a bargaining representative for employees who will be covered by the proposed enterprise agreement. In terms of the matters required by section 437(3) to be specified in the application, I confirm that the application specifies the group or groups of employees who are to be balloted. It specifies the questions to be put to the employees and, in this case, the applicant doesn t seek to nominate a person other than the AEC to be the ballot agent, so the application specifies that the AEC is acceptable. I confirm that the requirements of section 440 being the requirements for service on the respondent employer and the AEC have been satisfied, and I believe I forwarded to your chambers already a copy of our correspondence to the AEC.

PN54

THE COMMISSIONER: Yes.

PN55

MS KAZAKOFF: And in reliance on the statement of Mr Altieri, the applicant has been genuinely trying to reach agreement in relation to its negotiations with the respondent, and we say that the requirements of section 443(1)(b) of the Act have been satisfied.

PN56

THE COMMISSIONER: Yes.

PN57

MS KAZAKOFF: And I now might just give the undertaking that has been requested by the other side, and which has been agreed by the applicant. I am instructed to say that the Australian Rail, Tram and Bus Industry Union will give KDR Victoria Propriety Limited trading as Yarra Trams a period of 5 working days written notice for the taking of any industrial action in the forms listed in questions 1, 9 and 10 of the ballot sought under the draft order, and in this undertaking a working day is a day that is not a Saturday, a Sunday or a public holiday.

PN58

THE COMMISSIONER: All right, thank you very much.

PN59

MS KAZAKOFF: Can I assist the Commission any further?

PN60

THE COMMISSIONER: No, not at this point. Ms Russell?

PN61

MS KAZAKOFF: Thank you, Commissioner.

PN62

MS RUSSELL: No, Commissioner, I don t have any submissions to make. My client doesn t oppose the making of the order.

PN63

THE COMMISSIONER: Right, very good, thanks Ms Russell.

PN64

MS KAZAKOFF: Thank you, Commissioner, there s just one thing that, for the sake of clarity - I think this has already been notified to your chambers - but the parties do still seek a short conference to clarify some matters that result from the proposed protection action ballot order but which don t result in any change to the orders being sought.

PN65

THE COMMISSIONER: No, but the situation is you re both (indistinct) resolve the order at this point, I take it?

PN66

MS KAZAKOFF: That s correct.

PN67

THE COMMISSIONER: Certainly you are.

PN68

MS KAZAKOFF: Yes, that s correct, thank you, Commissioner.

PN69

THE COMMISSIONER: Yes, very well. I ll make a decision on that matter now.

PN70

This is an application under section 437 for a protected action ballot order, a proposed protection action ballot of employees of KDR Victoria Propriety Limited trading as Yarra Trams. The application is made by the Australian Rail, Tram and Bus Industry Union.

PN71

Section 443(1) of the Fair Work Act sets out in subsections (1) to (5) the various requirements that are to be met for the Fair Work Commission to make a protected action ballot order. I m satisfied those requirements have been met in this matter, an application has been properly made under section 437, and that the protected action ballot order has been properly made in accordance with subsection (3).

PN72

The applicant has today lead evidence through Mr Altieri. He s attested to a witness statement, which was tendered as K1. I am satisfied that that witness statement addresses all the requirements of the Act, to which I am to have regard. I also note that an undertaking was given by Ms Kazakoff for the applicant that the ARTBIU will give in respect of any industrial action taken in relation to the questions 1, 9 and 10 on the proposed ballot should the ballot be approved and industrial action ensue that 5 working days written notice will be provided for that industrial action as opposed to the 3 days for the other industrial action. That won t be reflected in the order but will be dealt with by way of that undertaking.

PN73

In particular, I note that I m satisfied that the requirements of section 443 of the Act have been met, that the applicant has been and is genuinely trying to reach an agreement with the respondent, and that the draft order meets the requirements of section 443 of the Act. The Australian Electoral Commission is to be the protected action ballot agent. As I m satisfied that the requirements of the Act have been met, pursuant to section 443 of the Act, an order will be made and issued concurrently with this decision.

PN74

I will publish the reasons that I ve just given subsequently, but a decision is now made and an order will be issued. That concludes the decision. The Commission is now adjourned.

ADJOURNED INDEFINITELY [8.20 AM]

LIST OF WITNESSES, EXHIBITS AND MFIs

PHILIP STEVEN ALTIERI, SWORN................................................................. PN40

EXAMINATION-IN-CHIEF BY MS KAZAKOFF............................................ PN40

EXHIBIT #K1 WITNESS STATEMENT OF PHILIP ALTIERI DATED 09/07/2015 PN48

THE WITNESS WITHDREW.............................................................................. PN51