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BP2007/ 2202 , Transcript of Proceedings [2007] AIRCTrans 24 (22 January 2007)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 16380-1

COMMISSIONER BLAIR

BP2007/ 2202 

AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION
AND
MAYFIELD ENGINEERING PTY LTD TRADING AS METLABS
s.451(1) - Application for order for protected action ballot to be held
(BP2007/ 2202 )

MELBOURNE

WEDNESDAY, 10 JANUARY 2007

Hearing continuing

THE FOLLOWING PROCEEDINGS WERE CONDUCTED VIA VIDEO CONFERENCE AND RECORDED IN VICTORIA

PN1

MR T MCCAULEY: I appear for the AMWU.

PN2

MS V LEEDS: I appear for Mayfield Engineering Pty Ltd.

PN3

THE COMMISSIONER: Thank you, Ms Leeds. Mr McCauley.

PN4

MR MCCAULEY: Thank you, Commissioner. We note that the matter has been listed for mention so it might be most helpful if I first set out a scenario of what's happened in proceedings pursuant to the bargaining period. Senior Deputy President Acton issued an order - made a decision rather on 21 November 2006 and then issued an order for a protected action ballot to be taken. That ballot was successful. The ballot commenced on 1 December and closed on 18 December. That ballot was approved in all states. It was made for four states, WA, New South Wales, South Australia and Victoria. Further to a result of that ballot, on
22 December a notice of intention to take protected action was served on the employer and it was filed in the Commission.

PN5

However on 12 December, that's during the period when the protected action ballot was being taken, Metlabs forwarded to all its employees in each state that I mentioned before a separate non union collective agreement for Metlabs employees in that state. We now understand that that non union agreement was approved in Western Australia only. Subsequent to that result delegates and officials from the remaining states, that is Victoria, South Australia and New South Wales, resolved to pursue the matter for those three states. We therefore wrote to Metlabs on 3 January notifying them that the intention to take protected action notice that we had served was now withdrawn, that we informed them that we intended to continue to negotiate the union collective agreement for the remaining three states and therefore we sought a further meeting for that purpose.

PN6

I now understand that that meeting has now been arranged and it will take place next Tuesday, 16 January. So with that context in mind, Commissioner, this application is sought for those three remaining states. We would seek an expedition of the hearing. Senior Deputy President Acton's decision in this matter is pretty much on all fours with the situation we now find ourselves in. It was a very extended hearing. It was almost within days of three months between lodging the application and having the order made for the ballot. Many contentions were canvassed and decided upon by her Honour.

PN7

In that context, in the context that we are pursuing the same union collective agreement now for three states instead of four we would see an expeditious programming of this matter. In addition we would seek that the draft order that's attached to our application, I think at attachment D which is for a posting of notices on noticeboards at the relevant sites, we seek that that order be issued this morning. There are submissions in support of that order being issued as attachment E to the application. In general terms, I won't go to it in detail, I won't repeat those submissions at attachment E, in order that the Commission fulfil its obligations to act quickly and also to ensure that relevant persons have a reasonable opportunity to make submissions in relation to the application we do seek that that order issue and that the relevant material is posted on relevant noticeboards.

PN8

The order also provides for email to the relevant employees. In short, that is what we are seeking this morning. Yes, those are our submissions.

PN9

THE COMMISSIONER: Thank you. Ms Leeds.

PN10

MS LEEDS: Commissioner, there was some over 150 pages of material sent to Metlabs which is an operating division or a trading name of Mayfield Engineering, I note after close of business on Monday and the company hasn't had any opportunity really to consider the material that's before the Commission in this application. We seek that the order not be issued this morning but that we at least have an opportunity to have a look at that and maybe get back to the Commission in a day with our submissions on that particular application.

PN11

MR MCCAULEY: If I can just - - -

PN12

THE COMMISSIONER: Sorry. Ms Leeds, is there any idea from Metlabs as to whether or not they intend to contest the application?

PN13

MS LEEDS: Yes, Metlabs will be - or Mayfield will be contesting the application.

PN14

THE COMMISSIONER: Right. And does that imply that all the material that was provided for in the hearing before her Honour Senior Deputy President Acton would be a rerun of that argument?

PN15

MS LEEDS: Quite possibly. I mean as Mr McCauley has indicated to the Commission, there have been developments since that decision of the Senior Deputy President and notably the fact that the employees have in Western Australia, have accepted an employee collective agreement and that was lodged with the employment advocate on 28 December. So we need to have a fresh look at the material that was before her Honour in those proceedings and I dare say some of it will be similar. Some of the arguments may be similar but there may be different arguments. We need to have a look at the bargaining notice that was issued in the first place, I think noted in these papers back in May of last year. So we would really like the opportunity to do that, Commissioner.

PN16

THE COMMISSIONER: Right. Mr McCauley

PN17

MR MCCAULEY: Thank you, Commissioner, just a couple of things to clarify. The material was forwarded to Metlabs operations in WA after 5 pm New South Wales time which was after 3 pm Western Australian time, just to clarify that matter. The order that's sought this morning is in identical terms, apart from the removal of WA, to the order that was issued by her Honour in the previous proceedings in this matter. This is no surprise in the application that's been served on Mayfield's within the - as is provided in the Act. We are dealing with the same negotiations, the same agreement, apart from the removal from one state's application of the agreement.

PN18

It's the same bargaining, the same bargaining notice about which her Honour SDP Acton made relevant findings in her decision. For the Mayfield's representative this morning to say that everything is being tossed up in the air and it's all new to them, I think in the context is a little bit disingenuous. In the context of the Act, especially in relation to section 457 about the necessary expedition of matters, protected action ballot applications being made before the Commission, we would certainly press for the order at attachment D to issue this morning and it is simply a facilitative order. It is not a final decision. It does not prevent the substantive application being heard in full. It merely facilitates that. Those are our submissions, Commissioner. Yes, thank you.

PN19

THE COMMISSIONER: Thank you. What the Commission will do is set the matter down for 9.30 Friday, the 12th, this coming Friday. In the interim it will issue the necessary documentation including the notices to appear on noticeboards, directions to the employer to comply with those directions and it will hear whether or not there is a requirement at that point to set further dates down to deal with what may be a substantial argument on the part of Mayfield. I would have to indicate though that if it is Mayfield's intention to rerun the arguments that they before her Honour Senior Deputy President Acton except excluding Western Australia because they now have an agreement, non union agreement in place, the Commission would not view that as being suitable.

PN20

It may be that it could be viewed as wasting the Commission's time to rerun arguments that have already been dealt with by her Honour. So I should indicate that to the parties, but the matter will be set down for 9.30 this Friday, the 12th. The necessary document as indicated will be issued in the interim and I will hear from the parties at 9.30.

PN21

MR MCCAULEY: Thank you, Commissioner.

PN22

THE COMMISSIONER: Mr McCauley, is that okay, are you clear with that?

PN23

MR MCCAULEY: Yes, thank you, Commissioner.

PN24

THE COMMISSIONER: Ms Leeds, are you clear with that?

PN25

MS LEEDS: Thank you, Commissioner. I might just for the record correct a statement that Mr McCauley made. I didn't state it was new material, I said we haven't had an opportunity to consider all the material.

PN26

THE COMMISSIONER: Yes. No, I understood that.

PN27

MS LEEDS: I just wanted to make that clear. Thank you.

PN28

THE COMMISSIONER: Yes, thank you. All right. The Commission will stand adjourned until 9.30, Friday, the 12th. Thank you.

<ADJOURNED UNTIL FRIDAY, 12 JANUARY 2007 [11.45AM]