AG2001/3870, Transcript of Proceedings [2001] AIRCTrans 2170 (31 August 2001)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER RAFFAELLI

AG2001/3870

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LK of the Act
by Campbells Cash and Carry Pty Limited
for certification of the Campbells Cash &
Carry (NSW & ACT Branches) Agreement 2001

SYDNEY

1.50 PM, MONDAY, 13 AUGUST 2001

Hearing continuing

PN1

THE COMMISSIONER: Could I have the appearances please?

PN2

MR G. JOHNSON: If the Commission pleases, I appear on behalf of Campbells Cash & Carry Pty Limited and appearing with me is MR G. GAVAN.

PN3

MR D. MEHAN: Good afternoon, Commissioner, I am from the National Union of Workers, New South Wales Branch. I appear here on behalf of Mr John Cousins who is an employee of Campbells Cash & Carry Met Cash, who will be covered by the agreement. He has asked us to appear on his behalf today to oppose the making of the agreement and I would be seeking an adjournment which I am willing to speak to at the Commission's pleasure.

PN4

THE COMMISSIONER: Yes, in asking for an adjournment are you seeking to intervene pursuant to 43(1) are you, as a person are you? You're not intervening as an organisation?

PN5

MR MEHAN: No, because we've been requested. I have a copy of the request which I think was forwarded through to your office and you have a copy.

PN6

THE COMMISSIONER: Yes.

PN7

MR MEHAN: The Commission will understand, given the way these matters come on and I'm advised by employees who are members of the union that they weren't advised that today would be the certification date. We only found out this morning and we were able to arrange for those who have made a request for us to appear today to prepare something. We only, at this moment, received a written request from Mr Cousins, but there are other people who have put in a request to us. Given the nature of these proceedings though, we haven't been able to organise those just for today. Would the Commission like me to address briefly on the - - -

PN8

THE COMMISSIONER: Well what discussions have you had with Mr Johnson and Mr Gavan?

PN9

MR MEHAN: None really, Commissioner. The way this matter has progressed and I might give you a brief background. Currently, employees of Met Cash Campbells and Cash & Carry are covered by a New South Wales State Award called the Storeworkers Campbells Cash & Carry NUW New South Wales Branch Award 2001. That award was made on 9 March this year. There were some appeals to elements of that award made by the company. Those appeals have now been heard and decisions have been handed down on those. If I could hand up a copy of the award it might help the Commission in what I have to say.

PN10

I'll go briefly through my issues though, Commissioner, in terms of the background. The award contains a number of provisions on union rights, if I could use the general term. One is the union right to payroll deductions. That was a clause in the award made by the Commission that was appealed by the company and subsequently the New South Wales Commission said that they had the power to make that clause and put it in the award and that's a settled matter now in New South Wales and we have a number of members on payroll deductions as a result of that decision.

PN11

The company cut off payroll deductions a number of years ago. So the members have just received that back again. There is also a union delegate's clause which allows our NUW delegates certain rights to exercise their rights during their working hours. There is also provision for union involvement in the dispute settling procedure. There is also provision in the award for union right of entry. All of those provisions have either been changed or deleted from the enterprise agreement you're being asked to certify today. Those are part of the issues our members have with the making of the agreement. They principally affect union delegates, but they also go to affect all members in how they can be represented by the union at the site.

PN12

It might assist the Commission to note that the copy of the enterprise agreement you are asked to certify has mentioned that clause 31 in the index at the front of the agreement has been deleted. If you refer to that, Commissioner, and you refer back to the award clause 31 in the award is the union delegate's clause. So that's just been deleted from the enterprise agreement. Likewise the disputes procedure, that's been changed to delete reference to the union. Clause 37, which is union payroll deduction of fees has been deleted and clause 36, right of entry, has been deleted and the deletions are noted on the enterprise agreement you are asked to make.

PN13

THE COMMISSIONER: What makes you think that an absence of provisions means that the award doesn't apply?

PN14

MR MEHAN: When I was queried about that at my site, I have a site in Newcastle that I am responsible for, I asked my member to simply ask his manager whether the payroll deductions would be affected as a result of the making of the agreement. He was advised that if the union won the appeal, which we did, nothing would change. However, subsequent to that, our Mr Andrew Joseph who has handled the appeal matter, did query Mr Geoff Gavan, I think it was, and he was told that once this agreement is certified today, payroll deductions will cease again. We've gone through a lot of work over the last couple of years - - -

PN15

THE COMMISSIONER: In any case, your member has concerns about the agreement?

PN16

MR MEHAN: Yes, there are some other concerns. Those are the union issues, if I could put them into that box. There are some other issues. At Liverpool, we have members complain that they weren't given the opportunity to vote and at a number of sites including Wagga and Newcastle and I think Fairy Meadow, we've had complaints that the explanation of the content of the agreement wasn't what it should be and that goes to the explanation of the pay out of sick leave. The company advised employees during the process of putting on this agreement for their consideration that they were not legally allowed to provide pay out of sick leave. The Commission will understand that is not the case.

PN17

We can have an agreement providing for pay out of sick leave, but the employees in the making of this agreement are left with the impression that it was illegal for the company to offer them pay out of sick leave as part of making the agreement. That is not the true situation. Those are the guts of our grounds for opposing the agreement.

PN18

THE COMMISSIONER: Well, I'm not interested so much in your grounds for opposing the agreement, I'm more - well, in giving me the grounds for opposing the agreement that, I take it, are the reasons why Mr Cousins should be allowed the power to intervene in these proceedings and have his say.

PN19

MR MEHAN: Yes and we would be seeking an adjournment to allow time to advise the company properly and prepare.

PN20

THE COMMISSIONER: Yes, Mr Johnson, what do you say about the intervention essentially and the basis of that intervention.

PN21

MR JOHNSON: Thank you, Commissioner. Firstly this is news to the company. Secondly, I'm not quite sure where the line between the union issues that Mr Mehan raised finishes and the issues raised by Mr Cousins start. If it would assist the Commission and we refute, Commissioner, very strongly that there's been any improper following of the provisions as required by the Act and if it would assist the Commission I would like to hand up a copy of the ballot summary which shows that some 54.4 per cent of employees voted in favour of the agreement.

PN22

THE COMMISSIONER: Yes, I will mark this exhibit CCC1.

EXHIBIT #CCC1 COPY OF THE BALLOT SUMMARY

PN23

MR JOHNSON: Thank you, Commissioner. If I could ask the Commission to go to the fourth line from the top. Wickham, where Mr Cousins works, if you could see, Commissioner, there are 26 employees, 26 ballot papers were issued. There was one yes vote and I'm assuming that that's not Mr Cousins and 25 no votes. Commissioner, surely because one person doesn't like the terms of the agreement that that's not grounds for the matter to be postponed and affect those employees who did want to be covered by this agreement.

PN24

Commissioner, the company went to great pains to ensure that employees were made aware of the terms of the agreement proposed, the company went to great pains to ensure that those employees were issued ballot papers and it went to great pains to ensure that the ballot was a properly conducted ballot for the purposes of the Act. There are no grounds, in our respectful submission, for this agreement to be delayed, frustrated or postponed because one disenchanted employee is not happy with the outcome of the ballot.

PN25

I am not sure what further I can say in relation to it, Commissioner, because Mr Mehan as I said has raised a number of issues which he says are either union issues or issues raised at other places that he mentioned such as Fairy Meadow, etcetera, and we haven't seen a copy of the letter from Mr Cousins to Mr Mehan. Irrespective of that, it is our respectful submission that the company has complied with the provisions of section 170LK to the letter and there is no good reason, Commissioner, except for a matter raised of a disenchanted employee, why this matter should not proceed for certification under section 170LM. If the Commission pleases.

PN26

THE COMMISSIONER: Thank you. Mr Mehan.

PN27

MR MEHAN: The point I would briefly make, Commissioner, is that we are not just talking about Mr Cousins; Mr Cousins is the only person from whom we have elicited a written request, there have been others but as you understand, we only found out about this this morning. Our members were not told in advance that certification - - -

PN28

THE COMMISSIONER: Mr Cousins isn't here, is he?

PN29

MR MEHAN: No, we haven't been able to arrange for him to come here and there are other employees who haven't had time to put a request to us. If employees had been told that it was on today, given notice we would have been able to arrange it but we haven't been able to under the circumstances.

PN30

MR JOHNSON: If I may, Commissioner; the company advised its employees, as it is required to do under section 170LK(4) that if they wished to be represented they had every right to be. Not one person indicated to the company that it wished to be represented by the National Union of Workers. The National Union of Workers has not contacted the company during the balloting process for any discussions in relation to the proposed agreement that the company had before its employees.

PN31

There has been ample time for such representation to have been made should there be a view that there has been some misleading information by the company or should there be a view that some other irregularity has occurred in the balloting process, or that employees were not aware of the proposed agreement. I gave to your associate, Commissioner, copies of the enterprise agreement proposal handed out to employees as well as a comparison between the agreement that was in place in the award and the proposed agreement. There is no way and no grounds that anybody could argue that they were not familiar with the terms of the agreement. If the Commission pleases.

PN32

THE COMMISSIONER: What I propose to do is this, on the basis of the submissions I am prepared to grant intervention to Mr Cousins to appear in these proceedings. The question is, should Mr Cousins' interests or attendance be accompanied by an adjournment to the certification of the agreement? There are some competing concepts. On its face, this is a person who may very well be merely a person who is aggrieved by the ballot and the fact that his view was not the one supported by the majority of persons and I note that although the document says that 54 per cent voted in favour, that is 54 per cent of all the employees. In actual fact I take it that the Act requires that there only has to be a clear majority of the persons who vote and so - - -

PN33

MR JOHNSON: Sixty-five per cent, if it would help the Commission.

PN34

THE COMMISSIONER: Yes, that's right, so in the real vote, the critical vote, it is substantially more than 54 per cent, so it may very well be that not much will change even with Mr Cousins' concerns being listed to. At the end of the day with the union membership and all that sort of stuff, I am going to be looking at the no disadvantage test and it is always a matter of assessment with the discontinuance of payroll deductions, how that weighs against an additional one dollar a week in benefits. It's hard to know, it might be of great value to some unionists to have payroll deductions, other employees might not care one hoot about that, they would rather have the extra dollar. It all goes to indicate that there's going to be a bit of difficulty in weighing it up.

PN35

I do propose to grant the adjournment and I do that because whatever the shortcomings, whatever the attitude of Mr Cousins, he has a right to be heard, he has an interest. My only caution is that his interest in the end needs to be listened to but on its face I do not know whether it is going to change the view that perhaps this agreement will pass the no disadvantage test and it has the support of the majority of those who chose to vote and therefore should be certified. In the end that's the real nub of it, but I am prepared to grant the adjournment to enable matters to be put and there might be other people. I put it because in the circumstances there is no way that Mr Cousins would have necessarily known about these proceedings and it couldn't have been dealt with in any other way.

PN36

Now, everybody who wants to know will be taken to know and will have to front up and put their arguments to the Commission at a time to be determined but it will be on Friday, 24 August. I think it will be in the morning but I will have to confirm that with you. In the meantime I would urge the parties to have discussions, however unpalatable it might be, Mr Mehan, it might be that some of your concerns will be adopted by the company, perhaps they won't be, and also often in these situations the parties are seen to be quite far apart and might end up resolving their differences by having some clarification or discussions. I propose to adjourn these proceedings to Friday week and the matter can then proceed. On that basis these proceedings are adjourned.

ADJOURNED UNTIL FRIDAY, 24 AUGUST 2001 [2.08pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #CCC1 COPY OF THE BALLOT SUMMARY PN23