B2015/1708, Transcript of Proceedings [2015] FWCTrans 754 (31 December 2015)

TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009 1052911

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DEPUTY PRESIDENT GOSTENCNIK

B2015/1708

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

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia

and

Allen & O'Brien Pty Ltd T/A O'Brien Electrical Services

(B2015/1708)

Melbourne

4.35 PM, TUESDAY, 22 DECEMBER 2015

PN1

THE DEPUTY PRESIDENT: Yes, good afternoon, Ms Weber, you're appearing for the applicant?

PN2

MS L WEBER: I am, thank you, Deputy President.

PN3

THE DEPUTY PRESIDENT: And Mr O'Brien, for the employer, is that right?

PN4

MR D O'BRIEN: Yes.

PN5

THE DEPUTY PRESIDENT: Yes, all right. Well, the CEPU have made an application for the 30 day period within which industrial action can take place, pursuant to the earlier declaration that had been made by the Australian Electoral Commission and I understand that O'Brien Proprietary Limited seeks to oppose the grant of the extension of the period, is that right? Yes?

PN6

MR O'BRIEN: Yes.

PN7

THE DEPUTY PRESIDENT: Yes, all right. Now you've set out in your correspondence to my chambers for the broad grounds upon which you say I should not exercise my discretion. Is that the totality of the area of objection?

PN8

MR O'BRIEN: Well, the objection is, it's hurting my business. We're only a small suburban business. And secondly, to our knowledge the men have not met the men haven't met to vote on this. It's a union application, not it hasn't gone to the men and they're not aware of it.

PN9

THE DEPUTY PRESIDENT: I'm not sure whether you're familiar with the statutory scheme but the Act allows for parties to engage in industrial action or response action in particular circumstances. One of those circumstances is where the union have obtained an order for a protected action ballot and the industrial action has been authorised by a vote of the employees. An order was made on 29 October 2015 and the ballot was subsequently conducted of the employees by the Australian Electoral Commission, the results of which were that in respect of the industrial action proposed, and there was five separate question about industrial action and the first two questions were supported by eleven to one, and the third, through fifth forms of industrial action through which authority was sought was supported by twelve to zero. So there has been a vote and the union had 30 days from the date on which the declaration or the approval was given and the declaration of results made, that is 19 March, within which to start some or all of the industrial action, and the Act allows them to ask for a further 30 day period. So that's what they're here to do. They're not required to have another vote. That's the scheme of the Act. They can apply to have the period extended. So that's the first point.

PN10

The second point is, I'm not sure whether any industrial action has yet been taken. Presumably - - -

PN11

MR O'BRIEN: It has.

PN12

THE DEPUTY PRESIDENT: Some has and some hasn't, and I take it, Ms Weber, that you seek to have an extension in relation to the forms of industrial action that haven't yet been taken, is that right?

PN13

MS WEBER: That's correct, Deputy President. All forms of action have been notified or taken, with the exception of stoppages of work.

PN14

THE DEPUTY PRESIDENT: Okay, so that's item 1, is it?

PN15

MS WEBER: From memory, yes.

PN16

THE DEPUTY PRESIDENT: Yes, item 1, all right. The nature of and I'm not suggesting that, Mr O'Brien, your concern isn't a legitimate one that the industrial action causes your business financial and other difficulties but that, with respect, is the purpose of industrial action. The parliament has said that that's a legitimate tool that's available in particular circumstances, so that you telling me that the industrial action hurts your business, isn't a basis for me to not grant the application that's sought because the very purpose of industrial action is to place economic and other forms of pressure on the other party so that they might reach an agreement.

PN17

MR O'BRIEN: Well, I'm objecting because this is all about an expired EBA. I mean, you know, you did ask if I object, so I said I object.

PN18

THE DEPUTY PRESIDENT: Yes. No, I understand that, and the union want a new EBA. You don't have to agree to it but the union is entitled to pursue the avenues that are available to it under the Act, so that I mean, for example, if you were to tell me as an example, and the reason why I ask whether there's any objection, is that if you were to tell me that since the ballot eleven of the twelve employees have resigned and you've got eleven new employees, that might be a persuasive discretionary consideration in which case I would not automatically extend the period and I might in those circumstances require the union have another ballot because the composition of the workforce has changed, but you're not suggesting that that's happened?

PN19

MR O'BRIEN: No.

PN20

THE DEPUTY PRESIDENT: No.

PN21

MR O'BRIEN: There's a few less.

PN22

THE DEPUTY PRESIDENT: Sorry?

PN23

MR O'BRIEN: There's not eleven there, any more.

PN24

THE DEPUTY PRESIDENT: Well, there were twelve to begin with.

PN25

MR O'BRIEN: Yes, well there's I think there's - - -

PN26

MS WEBER: Seven.

PN27

MR O'BRIEN: I've had to let a few go for obvious reasons.

PN28

THE DEPUTY PRESIDENT: Well, the seven participated in the original ballot?

PN29

MR O'BRIEN: They did, yes.

PN30

THE DEPUTY PRESIDENT: Yes, all right. And you say that there's a lack of consultation between the members of the ETU, and the ETU about the application?

PN31

MR O'BRIEN: This application.

PN32

THE DEPUTY PRESIDENT: Yes.

PN33

MR O'BRIEN: Yes.

PN34

THE DEPUTY PRESIDENT: If you say that, do you have any evidence about that?

PN35

MR O'BRIEN: Yes, we talked to them.

PN36

THE DEPUTY PRESIDENT: Are any of the men willing to come along here and give evidence that they're not they don't want to - - -

PN37

MR O'BRIEN: I could have brought them but I didn't realise I had to.

PN38

THE DEPUTY PRESIDENT: I'm sorry?

PN39

MR O'BRIEN: Well, in that can Sue - - -

PN40

THE DEPUTY PRESIDENT: Yes, of course, yes.

PN41

MR O'BRIEN: She's our operations manager.

PN42

THE DEPUTY PRESIDENT: Yes.

PN43

MS SUE: Sorry, they just informed me that they know absolutely nothing about what's going on and they're quite annoyed about it.

PN44

THE DEPUTY PRESIDENT: Right.

PN45

MS WEBER: Deputy President - - -

PN46

THE DEPUTY PRESIDENT: Just hang on a second. The difficulty with that is that it's an assertion from the Bar table which the union will presumably object to.

PN47

MS SUE: Yes.

PN48

THE DEPUTY PRESIDENT: It's not evidence.

PN49

MS SUE: Yes.

PN50

THE DEPUTY PRESIDENT: And so - - -

PN51

MS SUE: But we could have brought someone, however, it's just we didn't know we could, but yes.

PN52

THE DEPUTY PRESIDENT: Well, that's the purpose of my listing the matter, so that you can bring forth whatever you wish to bring forth. But there's an obligation on me to deal with these sorts of application in a reasonably expeditious fashion. So if you want to call evidence from the individual employees I might be persuaded to re-list the matter tomorrow to give you an opportunity to bring them all along and they can give evidence under oath, if that's what you want to do.

PN53

MS SUE: That might if they'd be available.

PN54

THE DEPUTY PRESIDENT: All right.

PN55

MS SUE: That would jeopardise everything else because everyone's working and - - -

PN56

MR O'BRIEN: Yes. You can organise somebody to come tomorrow.

PN57

MS SUE: I could try, yes. Yes but then what if I can't, and then we've wasted time?

PN58

MR O'BRIEN: It'd be a help if you can.

PN59

THE DEPUTY PRESIDENT: Well, look, why don't I do this. Why don't I stand the matter down for five or so minutes and rather than you having a discussion on your feet, you can have a discussion privately about whether that's what you want to do. If that's what you want to do then I'll list the matter tomorrow morning. I've, fortunately for you, have another matter drop out of my list tomorrow so I can deal with the matter tomorrow morning and if you want I'll list it for ten o'clock and you can bring the seven blokes here and they can give evidence and be cross-examination.

PN60

MR O'BRIEN: To bring them all here?

PN61

MS SUE: I don't know if we'll get the seven here.

PN62

THE DEPUTY PRESIDENT: Well, if you bring one employee, that only tells me the attitude of one employee, and why should that attitude be given some precedent over the other six? So if you want to persuade me that the well, a couple of things. First of all, understand this, that if I grant the application, all it does is allows the union a further 30 days in which to notify you of a particular form of industrial action. Whether the men want to take industrial action is a matter for them. They're not forced to take industrial action so if the union gives notice that the blokes are going to go on strike on X date, assuming I were to grant the extension, if the employees don't want to go on strike, they don't have to. So it's not they're not compelled to act on the notice.

PN63

MS SUE: They feel that they are.

PN64

THE DEPUTY PRESIDENT: Well, they're not compelled to act on the notice. The notice is simply an intention by the union to organise particular forms on industrial action and it might feel confident that the employees will engage in that industrial action but whether or not the employees actually engage is a matter entirely for them.

PN65

MS SUE: Okay.

PN66

THE DEPUTY PRESIDENT: All right? So they're free to ignore the notice if that's what they wish.

PN67

MS SUE: Okay.

PN68

MR O'BRIEN: The actual hearings is on in four weeks, anyway.

PN69

THE DEPUTY PRESIDENT: The hearing of what?

PN70

MR O'BRIEN: The court hearing.

PN71

MS WEBER: There's a separate application to terminate the - - -

PN72

THE DEPUTY PRESIDENT: There's a determination, yes. Yes, I'm aware of that, but what's that got to do with this application?

PN73

MR O'BRIEN: Well, I was just trying to justify what you're saying.

PN74

THE DEPUTY PRESIDENT: No, I'm aware of the that's an application by O'Brien to terminate an agreement and that will be decided - - -

PN75

MR O'BRIEN: That's right.

PN76

THE DEPUTY PRESIDENT: Quite separately from these proceedings. What the union wants in the union is seeking to negotiate a new agreement with O'Brien's. O'Brien's may or may not want to negotiate, may or may not agree to it, but one of the mechanisms that's available to a union is to apply for a protected action ballot order which it applied for an obtained last time. The Act then seeks the views of the employees through a secret ballot which is conducted by the Australian Electoral Commission pursuant to my order. The result of that ballot was that the employees endorsed the industrial action. The union gives notice of it. The employees are then free to take the action or not take the action. Now the union has, in this case, given notice of all kinds of industrial action except for one. And the Act allows for the union to apply on one occasion, that is this occasion, to extend the 30 day period, so that there so some circumstances in which I wouldn't extend the 30 day period, a change in the composition of the workforce is one, or if the seven employees came along tomorrow and said, "Well, if we had a vote today we wouldn't endorse the industrial action", that might be a persuasive factor. But they've got to come here and give evidence about that. So I'll stand the matter down and you can have a chat about whether or not you want to pursue that course and if you do, I'll list it tomorrow to facilitate that. If you don't, and were I minded to grant the extension of time, all that the union does it give notice of an intended course of action. The employees are not compelled to take industrial action. I mean, as a matter of fact and law, they're not compelled to do so. So if you're right and the employees are annoyed and they don't want to participate in industrial action, they can very easily vote with their feet and not do it, if the union gives notice.

PN77

MS WEBER: May I raise something also, Deputy President?

PN78

THE DEPUTY PRESIDENT: Yes.

PN79

MS WEBER: There seems to be some confusion on the respondent's part as to the effect of this application in that they've given a written indication to employees that if this application isn't granted, that means employees also can't take the forms of action they've already taken.

PN80

THE DEPUTY PRESIDENT: No. No but that's - - -

PN81

MS WEBER: But the union has written to the company and indicated that that's not correct.

PN82

THE DEPUTY PRESIDENT: No.

PN83

MS WEBER: However, we've had no response to that correspondence.

PN84

THE DEPUTY PRESIDENT: No. That well what Ms Weber says is correct. The application is in relation to the extension of the 30 day period for that one form of industrial action. What the 30 day period does is it requires industrial action to be taken within that time in order for it to be able to be taken in the future. If it's not taken within that time, then there's got to be an application for an extension and if it's not taken within the extended period then there needs to be a further ballot about that action but the five other or four other forms that were authorised, if those forms of action have previously been taken they don't need an extension for those because they've been taken within the 30 days, all right?

PN85

MR O'BRIEN: So just to make it clear, so this application means that the blokes have to vote to take industrial action? It's not a union directive?

PN86

THE DEPUTY PRESIDENT: No. The employees have already authorised the taking of the action.

PN87

MR O'BRIEN: Yes.

PN88

THE DEPUTY PRESIDENT: If the union gives but just because they've authorised that form of action it doesn't mean that they're compelled to take action when the union gives notice of it, if I were to grant an extension. Ultimately, if an individual employee doesn't want to engage in industrial action, they don't have to. There's no obligation under the Act for them to participate in the industrial action if they don't want to, even if they voted in favour of the question earlier. They're two separate things. So that when it comes time to taking action, each individual can make a choice about whether or not they're going to take the action, or not take the action. What they can't do it decide they're not going to take this action, but take some different action that wasn't notified. They can't do that. But they can certainly refrain from taking the action. So if the union gives notice were I to grant an extension of time, that on the 28 January or something well, it would have to be earlier than that, on the 17 January, there'll be a one day stoppage of work, that's the notice it gives, it gives you three days' notice of that. If the employees choose to go on strike on that day then the action is protected. But they can also choose not to go on strike and there's nothing that anybody can do about that. So they're free to exercise that choice, all right? So I'll stand the matter down for five minutes and I'll allow you two to have a discussion about what you want to do and if you want to have a hearing tomorrow I'll facilitate it, all right? I'll stand the matter down.

SHORT ADJOURNMENT [4.51 PM]

RESUMED [4.58 PM]

PN89

THE DEPUTY PRESIDENT: Yes, Mr O'Brien?

PN90

MR O'BRIEN: Can I let my operations manager - - -

PN91

THE DEPUTY PRESIDENT: Yes, certainly. Yes.

PN92

MS SUE: Yes, we've decided not to take the thing tomorrow because it's too hard. Basically, we've got men all lined up to do work for customers that are closing over Christmas and if I let them down then they're not going to want us there any more so it's too hard to juggle and to get them in here on such short notice so we'll just leave it.

PN93

THE DEPUTY PRESIDENT: All right. Well, is there anything else you want to say in opposition to the application?

PN94

MR O'BRIEN: No. No, thank you.

PN95

MS SUE: Probably not where can find (indistinct).

PN96

MR O'BRIEN: Well, I've got a lot of reasons but I don't think they're pertinent to this argument so - - -

PN97

THE DEPUTY PRESIDENT: Well, you've listed four reasons in your response. If there's any others you'd better tell me about them.

PN98

MR O'BRIEN: No, that's basically it. We precised it down to four.

PN99

THE DEPUTY PRESIDENT: Yes, all right. All right, thank you, Mr O'Brien. Ms Weber, do you want to say anything?

PN100

MS WEBER: Not unless you're seeking submissions on any particular point, Deputy President.

PN101

THE DEPUTY PRESIDENT: Sorry?

PN102

MS WEBER: Not unless you're seeking submissions on any particular point of the application. I'm content to rely on the application itself.

PN103

THE DEPUTY PRESIDENT: Yes, all right. Thank you, Ms Weber. On 29 October 2015 I issued a protected action ballot order on application by the CEPU in relation to the bargaining that was occurring with Allen O'Brien Proprietary Limited. The order directed that the group of employees who were to be balloted were to be balloted in relation to five questions, each concerning a particular form of proposed industrial action. Pursuant to my order the ballot was to close on 30 November 2015 and the ballot was to be conducted by the Australian Electoral Commission. On 19 November 2015 the Australian Electoral Commission declared the result of the ballot conducted pursuant to my earlier order. It declared that the number of employees on the role were twelve. The number of employees who returned a valid ballot was also twelve. In respect of each of the five questions in relation to the industrial action for which approval was sought, the declaration indicates that in respect of questions 1 and 2, eleven employees approved the action and in respect of questions three through five, all twelve employees approved the industrial action.

PN104

It is uncontroversial that the CEPU have engaged in industrial action or at least given notice of industrial action contemplated by questions 2 through 5 in the sorry, questions 2 through 5 which were approved by the employees. It's also uncontroversial that the CEPU has not given notice of an intention to organise or take industrial action in the form authorised by question 1 which was the subject of the earlier ballot. The 30 day time limit within which industrial action needs to be notified has elapsed and the CEPU has made an application for an extension of the time period by a further 30 days.

PN105

Section 459 of the Act gives the Commissioner discretion to extend the 30 day period within which industrial action must start if the applicant for the protected action ballot, in this case, the CEPU, applies to the Commission for the period of extension and the period has not previously been extended. I am satisfied that an application has been made and I'm also satisfied that a previous extension has not been given and the statutory basis for exercising the discretion therefore exists. The question is whether in the circumstances I should exercise that discretion in favour of the grant of an extension of time.

PN106

In response to correspondence sent from my chambers to the respondent in which I asked whether the application for an extension was objected to, the respondent set out four broad reasons for opposing the extension, the first of which is that the company was of the view that there was no need for industrial action as there had been no change in the company policy, wages or conditions. Industrial action which is authorised by a ballot is a legitimate form of industrial pressure which the Act recognises and permits to occur during the course of bargaining. Its purposes is, amongst other things, to persuade the other party to in fact change their position on wages and conditions that are the subject of negotiation or bargaining and so that does not provide any sound discretionary basis upon which not to exercise my discretion.

PN107

The second reason set out is that company is of the view that the employees who should vote on the industrial action, that the employees were not aware of the application for an extension of time. Oral assertions were made during the course of the proceedings today to the effect that some employees expressed dissatisfaction at the application for an extension of time made by the CEPU. The application for a protected action ballot order was made as I indicated earlier, in October and determined on 29 October. Thereafter there was a vote of employees where on the face of the declaration, either a substantial majority or an absolute total of the employees supported the various forms of industrial action. There is nothing before me which would persuade me that the circumstances of the employees have changed in a sufficient way which would warrant the expenditure and time for the conduct of a further protected action ballot. In any event, as I explained to the respondent during the course of the hearing today, if I grant an extended time period and the CEPU gives notice of the intention to take protected industrial action, each employee is under no obligation to participate in industrial action and so that if, as a matter of fact, some employees are unhappy with the seeking of an extension in which not to participate in industrial action, they're free to do so if that is their wish.

PN108

The third ground is really a repetition of the second and concerns the lack of consultation between the members of the ETU and the ETU(sic) about the question of the authority to make this application. The CEPU is an organisation which is a bargaining representative for the proposed agreement. It has standing to make the application and there is no reason to look behind that authority. It would only be in circumstances where each of the employees might have appointed some other person as a bargaining representative that I might be persuaded to consider whether or not the CEPU is entitled to make the application that it has but no suggestion that that has occurred has been made.

PN109

The final matter relates to the impact of the industrial action and the possibility of resultant redundancies. Whilst I have a great deal of sympathy for the impact of industrial action on any business and in particular, a small business, the scheme of the Act recognises that industrial action is a legitimate form of the use of bargaining power during industrial action during enterprise bargaining negotiations and industrial action has, as its purpose, to create some dislocation and even economic harm to the employer.

PN110

In those circumstances I do not find any of the grounds for objection persuasive. I am not aware of any other basis upon which I should decline to exercise my discretion. I propose to exercise my discretion in favour of the applicant. I extend the 30 day time period in which industrial action can take place. The period is extended until 18 January 2016. I think that calculation is right, Ms Weber.

PN111

MS WEBER: I'll take your word for it, Deputy President.

PN112

THE DEPUTY PRESIDENT: The time expired on the 19th. This month has 31 days. Seven, 14, 21, 28 is the 16th, 29 is the 17th, 30 is the 18th.

PN113

MS WEBER: Yes, Deputy President, it is.

PN114

THE DEPUTY PRESIDENT: An order to that effect will be issued separately, later today. Thank you for your attendance. We're adjourned.

ADJOURNED INDEFINITELY [5.11 PM]