AG2001/1356, Transcript of Proceedings [2001] AIRCTrans 832 (10 May 2001)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER LARKIN

AG2001/1356

APPLICATION FOR CERTIFICATION OF AGREEMENT

Application under section 170LK of the act
for certification of Heritage Cleaning and Maintenance
Services Enterprise Agreement 2000 by JDR & Co.

NEWCASTLE

1.10 PM, FRIDAY, 20 APRIL 2001

PN1

THE COMMISSIONER: Can I have the appearances please?

PN2

MR D. MARTIN: I seek leave to appear on behalf of the applicant. With me iys MS R. RADLEY from Australian Business Lawyers.

PN3

MR J. LLOYD: I seek leave to intervene in the proceedings today, from the Australian Liquor, Hospitality and Miscellaneous Workers Union.

PN4

MR MARTIN: Commissioner, I object to intervention in this matter. This is an application pursuant to section 170LK of the Act. It is between my client and the employees. We have and we tender a letter from the Deputy Industrial Registrar certifying that they were not satisfied that the union has been notified by the employees that they wish them to appear at these proceedings pursuant to section 43B.

PN5

THE COMMISSIONER: I don't know that the Deputy Industrial Registrar's letter says or makes reference to intervening in proceedings. I have a copy of the letter to the union dated 19 April and what the Deputy Industrial Registrar is saying that he is not satisfied that the certificate should be issued under section 291A. I don't think it goes as far as proceedings before the Commission, the certificate as such. I think that is what you are attempting to place before me.

PN6

MR MARTIN: Yes, that is correct, Commissioner. Again I stress that an application under 170LK, the employees were notified that in compliance with the Act that if they sought union representation in these negotiations, that they should contact the union. No contact was made at the time that statutory declaration was filed in this Commission. The agreement is made, we are seeking certification. I wish the record to reflect our objection to the union's intervention in the matter.

PN7

THE COMMISSIONER: Yes, thank you Mr Martin. Mr Lloyd?

PN8

MR LLOYD: Commissioner, I concur with the view that what the Registrar has done is not been satisfied that the requirements have been met with relation to the issuing of a certificate under 291A. That however is a different matter to the union's rights to represent members of the union in these proceedings. The union wrote to the Registrar on 6 March of this year seeking leave to intervene in this matter.

PN9

THE COMMISSIONER: I have a copy of that letter, it is on file.

PN10

MR LLOYD: And enclosed authorities from a number of employees authorising the union to appear on their behalf at any hearings in this Commission in relation to the certification of the agreement the subject of this application.

PN11

THE COMMISSIONER: Under what head of power are you looking at Mr Lloyd?

PN12

MR LLOYD: The union would seek leave under section 43 of the Act which relates to general - I am sorry, 42 Commissioner - section 43 I am sorry Commissioner which covers general intervention and with the authority of people who would be covered by this agreement, the union seeks such leave to intervene. I should place on the record perhaps a correction to Mr Martin's indication that no contact had been made, I think were his words. Commissioner, on or around 22 January, the regional secretary of the union, Ms Cook who is with us today, attempted to attend a meeting at the Maitland Leagues Club which had been organised by the applicant in this matter to - with a view to discussing the proposed agreement with the employees to be covered by the agreement.

PN13

Ms Cook was refused entry to that meeting. I should say that her attempt to attend that meeting post dated having received authorities from members to negotiate on their behalf in the making of this agreement. Ms Cook was refused entry to the meeting by Mr John Ellis who is the secretary of the company and the director of the company who are making this application. Subsequently Ms Cook spoke with Mr John Ellis by telephone. She was told by Mr Ellis that she should speak with Mr Martin. Mr Martin indicated that Ms Cook would be invited to the meeting where the vote was to be taken.

PN14

THE COMMISSIONER: When did this occur, Mr Lloyd?

PN15

MR LLOYD: Well this occurred after Ms Cook's attempt to attend the meeting at Maitland Leagues Club on or around 22 January this year. Subsequently Commissioner, Ms Cook contacted Mr Ellis as I have indicated and I don't have precise dates, but was told by Mr Ellis to speak with Mr Martin and that she would not be able to deal directly with Mr Ellis with regard to the matter. Ms Cook spoke by telephone with Mr Martin who indicated that she would be invited to the meeting that the employees would be - where the employees would vote on the agreement. No invitation was received by Ms Cook to attend that meeting.

PN16

Ms Cook also requested a copy of the agreement from Mr Martin, but has never been supplied with a copy of the agreement. Yesterday Commissioner, I made a similar request of Mr Martin for a copy of the agreement, but that request was refused. Essentially Commissioner, with the authority of employees to meet and confer with the employer with regard to the making of the agreement, we would say that the - and perhaps this goes to a substantive matter with respect to whether the agreement should or should not be certified, we say that the applicant has not afforded the union its rights with respect to meeting and conferring as one point.

PN17

But with respect to intervention generally with the authorisation of persons who are intended to be covered by this agreement who are members of the union, the union has rights under section 43 of the Act to intervene in the proceedings if it pleases.

PN18

THE COMMISSIONER: Well apart from the submission just going to section 43, I think I will have to take you to section 43(2). I don't think you can seek leave under 43(1).

PN19

MR LLOYD: I think that is correct, Commissioner.

PN20

THE COMMISSIONER: So what do you say about the requirements of section 43(2)(a)? I think you have just given me submissions, if I have understood your submissions correctly and correct me if I am wrong, but what you have said to me is that the union, after receiving authorisation from members, sought the employer to confer in relation to the proposed agreement before that agreement was made in February.

PN21

MR LLOYD: That is correct.

PN22

THE COMMISSIONER: And what you are saying to me is that Ms Cook would testify and you have not used those words, but you are saying it is Ms Cook who is saying that she made that request of the employer and either the request was not granted or the request was ignored by not further following up, I think that is what you have said to me.

PN23

MR LLOYD: Yes.

PN24

THE COMMISSIONER: And in relation to section 43(2)(b)?

PN25

MR LLOYD: With respect to section 43(2)(b) specifically (a) states Commissioner that:

PN26

If the matter before the Commission is an application under ...(reads)... provided the request was not withdrawn.

PN27

It goes on.

PN28

THE COMMISSIONER: I think 43(2)(b) talks about being bound by the agreement.

PN29

MR LLOYD: Yes, Commissioner indeed and should the agreement be certified, it will be our submission that the agreement should not be certified, but should the agreement be certified, then our view would be that the union would be bound by that agreement.

PN30

THE COMMISSIONER: What do you say Mr Martin?

PN31

MR MARTIN: With regard to - - -

PN32

THE COMMISSIONER: I will take an adjournment if you would seek an adjournment to seek instructions.

PN33

MR MARTIN: I probably need to Commissioner. I can address you briefly now on a couple of points and I probably would seek an adjournment.

PN34

THE COMMISSIONER: Yes.

PN35

MR MARTIN: Commissioner, with regard to being bound, I take you to 170M(3).

PN36

THE COMMISSIONER: Sorry?

PN37

MR MARTIN: With regard to the union being bound by the agreement should it be made, the organisation 170M(3)(d) - - -

PN38

THE COMMISSIONER: M for Michael?

PN39

MR MARTIN: M for Michael, M(3)(d).

PN40

THE COMMISSIONER: Yes.

PN41

MR MARTIN: Commissioner, the onus falls to the union to satisfy the Commission that it has at least one member whose employment will be subject to the agreement and who, going down to (3):

PN42

Who requested the organisation to give notification.

PN43

Commissioner, I turn again to the letter from the Registrar of the Commission, that case had been put to the Commission and a decision has come back from the Deputy Industrial Registrar that the Commission is not satisfied that they had a member, not satisfied that an employee made such a request in line with section 170LK(4) in relation to the proposed agreement.

PN44

THE COMMISSIONER: Well I think the Deputy Registrar's decision in regards to not being satisfied was based on the Full Bench decision in Australian Liquor, Hospitality and Miscellaneous Workers Union against a decision of Commissioner Redmond.

PN45

MR MARTIN: That is correct, which I would submit Commissioner, is on all fours with this situation.

PN46

THE COMMISSIONER: Sorry?

PN47

MR MARTIN: Which I would submit is on all fours with this situation.

PN48

THE COMMISSIONER: But what I have heard from and again you are going to seek an adjournment to get instructions which I think is appropriate, but what the union is saying to me is that they did advise the employer prior to the agreement being made. The Full Bench decision on the appeal against Commissioner Redmond, if memory serves me correct, again testing memory was the fact that the union sought intervention after the agreement had been made. Again I will read that decision again, but what Mr Lloyd is submitting to me from the Bar Table initially, no evidence has been led at this point, but Mr Lloyd is submitting to me that the union did request and the union did notify the employer and for whatever reason or why fore or what have you, they were not provided with that opportunity.

PN49

Mr Lloyd's submission to me and again I can stand corrected by Mr Lloyd is that well we did notify the employer before the agreement was made and therefore notwithstanding the certificate, the refusal of the certificate by the Deputy Industrial Registrar and those submissions were not before him I gather, I don't think they were, this was done rather quickly I take it yesterday, but those submissions were not before him and he has simply looked at the fact that the agreement was made in February and the application for a certificate by the union and this may be relevant, I don't know, was made after that period and hence he could not be satisfied based on that Full Bench decision. What I am being told this morning is the reverse of that situation.

PN50

It is not so much that the Deputy Industrial Registrar was not satisfied the union did not have members, I don't think he goes that far. I think he looked at the dates and took the view that the agreement had already been made so therefore no certificate could be issued based on the Full Bench authority. What I am hearing this morning is a different scenario. Do you want to take that adjournment?

PN51

MR MARTIN: I shall Commissioner.

PN52

THE COMMISSIONER: Because the issue is not, I must say what has been put to me this morning and again, no evidence at the moment, puts a different light on the file as I saw it when I walked in this morning. So I think may be you need to seek instructions.

PN53

MR MARTIN: I shall Commissioner.

PN54

THE COMMISSIONER: And I will return in about 10 minutes and then you can advise me where we go to from here. On that basis we will adjourn.

SHORT ADJOURNMENT [1.26pm]

RESUMED [1.55pm]

PN55

THE COMMISSIONER: Yes, Mr Martin, you sought instructions?

PN56

MR MARTIN: Thank you Commissioner, thank you for the adjournment. Commissioner, just dealing with a couple of points that my friend raised going back into 2000 on or about November/December 2000, I can't be absolutely certain. I am instructed that the only union member present at the time at the workplace invited the union to come to a meeting of employees to discuss an enterprise agreement, to discuss varying aspects of the enterprise agreement and their previous agreement had expired. They had a meeting, I am instructed that Mr Ellis, my client was asked to leave that meeting by Ms Cook. I am instructed that the employee - - -

PN57

THE COMMISSIONER: I am sorry, Ms Ellis?

PN58

MR MARTIN: Mr Ellis was asked to leave that meeting.

PN59

THE COMMISSIONER: Mr Ellis was asked to leave the meeting?

PN60

MR MARTIN: Yes.

PN61

THE COMMISSIONER: Where was the meeting sorry?

PN62

MR MARTIN: Maitland Park.

PN63

THE COMMISSIONER: Yes.

PN64

MR MARTIN: I am instructed that the employees called the meeting to talk about the enterprise agreement, but the meeting and I should note that I have an employee with me here today, the meeting developed into what was nothing more than a membership drive I am instructed. At the meeting that Mr Lloyd talks about at Maitland Leagues Club where he tells the Commission that Ms Cook was refused entry, it is conceded that she arrived and my client told Carmel Cook that she could talk to the employees after the meeting, okay. However, she was excluded from that meeting. My clients were not aware that any request was made to have the union present. My client was not notified that Carmel Cook was coming to the meeting.

PN65

At the meetings prior to the making of the agreement, the employees were told that if they had any problems with the agreement that they could contact my clients. They were informed in compliance with the relevant sections of the Act with regard to being able to have an industrial organisation represent them if they so chose. I am instructed that in that 14 days, not one of the 56 employees contacted my client to express any dissatisfaction with the agreement. Nor in that 14 days did Ms Cook contact my client. My instructions are that the employer was never asked by the union to meet and confer.

PN66

She contacted Mr Ellis and on my advice, was advised to contact myself as their solicitor. The only thing discussed between Ms Cook and myself was the status of the agreement and where the progress of the agreement was at and whether or not she could have a copy of the agreement. Now I took the view then as I take now as I took yesterday with Mr Lloyd that if they had members that were concerned about the agreement, they could get a copy off them, it was not for me to give it to them. Commissioner, I refer the Commission to section 170LK(5):

PN67

If an organisation is so requested to represent such a ...(reads)... employer about the agreement before it is made.

PN68

It is my submission that my client was never informed by the union that they wished me to confer. On those issues Commissioner, those are my submissions and I guess we are now in your hands as to the intervention and where we go at this point Commissioner, if the Commission please.

PN69

THE COMMISSIONER: What I have decided to do, Mr Martin and Mr Lloyd, I have decided to hear both of you on the union's application for intervention under section 43, intervention generally. In relation to that, Mr Martin, I would like a list of the names of all employees of the respondent company. I would also like to hear your submissions on the relevance if any of a certificate under section 291(a) as that may or may not relate to section 43(2). I plan to reserve on that decision, but then I would hear you on the merit of the application for certification. I would hear both the union and I will hear you Mr Martin.

PN70

If my decision on the first issue is not favourable to the union, then any submissions made on the merit of the certification as it satisfies the Act of course will not be relevant to me. My decision to certify or not certify will then be based on your submissions to me Mr Martin and query some questions that I had planned to raise with you today in any event. However, if the union is successful in its application to intervene, than any submissions made to me by that organisation in relation to the agreement then I would have regard to if I feel that it is relevant to the requirements under the Act.

PN71

I take that course of action for the simple fact in my view, it is far more expedient for the parties. If I adjourned on the preliminary question and decided that issue, then I would have to re-list and the union may or may not be present at that second occasion. I think for the benefit of your client Mr Martin and for the employees that are employed in that organisation and also for the benefit of the union if indeed they have a right to be before me in the matter, it is better that we do it today rather than re-list it at another time down the track. So that is my view.

PN72

If you seek an adjournment to consider what submissions you need to place before me on those issues that I have raised, then of course I would grant that. But if you feel comfortable enough, then I will hear the union in relation to their application to intervene and then I will hear you Mr Martin also and then of course any reply the union may wish to make and then we will move into the merit.

PN73

MR MARTIN: Commissioner, as the proceedings have taken a path that was not entirely expected by myself, not expected to this agree, I would be seeking an adjournment to be able to prepare detailed submissions on the points that you have raised. When you say adjournment, are you talking 15 minutes or a week?

PN74

THE COMMISSIONER: Well it depends. Sometimes my adjournments are only 15 minutes, Mr Martin.

PN75

MR MARTIN: Commissioner, let me say this, that this is an issue that I put at some significance and I do not believe that - I think I have an obligation to my client to not run into this - I can't think of another expression other than half cocked and I think I owe it to my client to be able to prepare detailed submissions on this legal point and to compile the information that you require and I think it would be most expedient to grant an adjournment of some time, of some days, perhaps weeks.

PN76

THE COMMISSIONER: Well it is your application, I would grant it. I don't think I need to hear from the union in that regard. It is the employer's application for certification and I take your point and yes, I think it is appropriate that I do grant you that adjournment and we will go into conference in a moment and look for some dates. In considering the point that has been raised in regards to the intervention, I would like you to turn your mind because this is what is turning my mind, the relevance really of a certificate under section 291A when considering an application for intervention under section 43(2). I would like to know your view on whether a certificate really is mandatory.

PN77

MR MARTIN: I apologise Commissioner, your last point, I just missed it.

PN78

THE COMMISSIONER: I would like your view on whether that certificate is actually mandatory. What I would like Mr Martin, as we are going to adjourn, I would like you to forward into me a list of all employees. The union had forwarded to the Commission, as I have stated earlier I believe, authorisation forms which is not appropriate that be made available to the employer, but it is for me to determine whether those people are employees of the organisation.

PN79

MR MARTIN: Yes, of course Commissioner.

PN80

THE COMMISSIONER: So I will place that with you to advise me who are the employees please.

PN81

MR MARTIN: Yes.

PN82

THE COMMISSIONER: Mr Lloyd, I do not take it that you have anything further you wish to add at this stage before we go into conference.

PN83

MR LLOYD: No Commissioner.

PN84

THE COMMISSIONER: The matter will stand adjourned to another date, thank you.

ADJOURNED UNTIL MONDAY, 21 MAY 2001 [2.08pm]