AG2001/2313, Transcript of Proceedings [2001] AIRCTrans 948 (23 May 2001)

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TRANSCRIPT OF PROCEEDINGS


AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER DEEGAN

AG2001/2313
AG2001/2581

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LJ of the Act
by the ACT Department of Urban Services re
agreement with organisations of employees
(Division 2)

Application under section 170MD(2) of the Act
by the ACT Department of Urban Services re
variation of certified agreement by employer
or union

CANBERRA

9.36 AM, WEDNESDAY, 2 MAY 2001

PN1

THE COMMISSIONER: Yes. I will take appearances.

PN2

MR P. DEVINE: If the Commission pleases, I appear on behalf of the Department of Urban Services and ACT Forests, and with me is ECCLES J.

PN3

MR R. NOUD: If the Commission pleases, I appear for APESMA.

PN4

MR K. PRITCHARD: If the Commission pleases, on behalf of the Australian Workers Union.

PN5

MR I. FAULKS: If the Commission pleases, appearing on behalf of the AMWU.

PN6

MR P. SEAL: If the Commission pleases, on behalf of the Transport Workers Union.

PN7

MS S. SCHOONWATER: If the Commission pleases, I appear for the CFMEU.

PN8

MS L. FRANCIS: If the Commission pleases, I appear on behalf of the CPSU.

PN9

THE COMMISSIONER: Thank you. Mr Devine?

PN10

MR DEVINE: Commissioner, before I go on, I note that there are a number of issues that we need to address you on. First of all, as this is an application for 100 section LJ between two organisations and employer, in fact, my colleagues other than the AMWU and APESMA are, in fact, seeking intervention status in my opinion. However, Commissioner, I would like to give you a written statement as - sorry - I would like to read out a statement so that we inform you of the position that we find ourselves in.

PN11

Commissioner, there have been some developments in regards to the EBA certification that we have submitted to this Commission. We have been approached by the unions of the TWU, CFMEU, AMWU and CPSU to seek to have this EBA absorbed into a variation of an existing EBA. I would just like to touch upon the history of this matter. Once the TWU and the CFMEU announced to the AIRC, the management, APESMA and the AWU, their intentions to seek a Federal Court injunction without any prior notice to any of the parties, the employer considered conducting the restructure under the existing EBA. That would mean that there would have been no enhanced redundancies. APESMA and the AWU intervened with us and asked us to reconsider our position, which we did. This reconsideration resulted in the EBA that we have given to you for certification, or we seek under the papers that we have provided to be certified.

PN12

It is our utmost concern that we keep faith with the staff who have voted for these enhanced redundancy payments and that the VR process and the matching of people to jobs starts as soon as possible. The employer position on this requested variation is simple. So long as this process is allowable under the Workplace Relations Act and is defensible in this place or any other in terms of legality, we will consent to the variation on the proviso that we can do that today. If it requires another vote or any delay then we will not consent to the variation and we will seek to have the EBA certified as submitted. The EBA was voted upon by 39 of the staff of 42, with 37 in favour and two against.

PN13

Our position is made on the basis that we consulted the intervening unionist for a month and got nowhere. Further, the consultations were done, in our opinion, in bad faith by those unions as a fishing expedition for their Federal Court action. There is no trust between those parties and ourselves, Commissioner, so I alert you to our concerns that whatever is done here today needs to exactly comply with the Workplace Relations Act and be defensible in the eyes of others. It is likely that these proceedings may be examined by the Federal Court if a decision is made supporting the TWU, CFMEU application however unlikely we believe that outcome is.

PN14

Having said that, if a variation is not possible, then we would support the unions becoming parties to the EBA as voted upon. If this is not possible, then we will wish to proceed to certify the EBA as it has been submitted to you with the only two unions as parties.

PN15

I do not lightly talk about lack of trust, Commissioner. Yesterday, the intervening unions approached me and put to me their various concerns that I was trying to negate employees' rights under the current EBA and introduce involuntary redundancy. It was also alluded that I was conspiring with the AWU and APESMA to bring this about. Whilst I have some difficulty understanding how that construction can come from the written EBA as put, I accept that the intervening unions have the right to consider anything they wish no matter how ludicrous. This is simply an example of the lack of trust between some of the parties and ourselves.

PN16

Commissioner, I wish to tender to you a letter that I have provided to them that outlines the intention of the employer in regards to this EBA. Clearly, Commissioner, our intention was to secure the enhanced redundancy payments and provide a legal instrument for which to pay them. We are not seeking to alter anybody's conditions under the current EBA to their detriment and we believe that the EBA as written does that.

PN17

Commissioner, having put the position of the employer, I now feel that it is up to those unions who wish to convert the EBA to a variation to address you on the process and the legality of this. I am happy to address you on the requirements of the Act for either an EBA or a variation under section 170MD after you hear from the intervening unions. I have another set of documents here that ask for a variation that we can submit if you are convinced that this is an acceptable path to follow.

PN18

THE COMMISSIONER: Thank you. Before I hear from any of the unions who wish to intervene I would like to know what the views of the two unions who are here as a matter of right are. Mr Noud?

PN19

MR NOUD: Thank you, Commissioner. We have no objection whatsoever to the other unions application or what ultimately will be an application, I presume. In short, we have no objection if there is a variation made to the current parent agreement, if you like, the current ACT Forests Agreement. Failing that, if that is not possible, we have no objection to the other unions being made party to the agreement that was voted on in Forests, if that is possible. Failing that, we would seek certification of the agreement as it was voted on.

PN20

THE COMMISSIONER: Mr Pritchard?

PN21

MR PRITCHARD: Thank you, Commissioner. The AWU has no objections to the other unions who are party to the consent variation.

PN22

THE COMMISSIONER: Got a consent variation? Right. Well, currently, what I have before me is an application to certify an agreement which is the 170LJ agreement which means that I cannot hear from anybody else except the unions who are party to it. Now, if the other unions are here intervening on behalf of individuals as agents of those individuals, I can take intervention on behalf of those individuals if it is about the certification of the other agreement. What I cannot do is allow the other unions to be party to an LJ agreement. There is no mechanism for that. If it was an LK agreement, any union could be bound who has a member. But since it is an LJ agreement, if another union is to become a party to it, it takes another vote to amend the agreement and that is questionable in itself, but the only way it can be done, if it can be done, is by taking a vote to amend the agreement to allow a variation.

PN23

However, if you want to withdraw the application for a certified agreement, present me with a consent for variation to which all unions party to the current Forests Agreement have consented, and the statutory declaration to go with that consent variation makes it clear that all the other requirements of the Act in relation to the variation, including the fact that the employees concerned would have voted for the variation, or have voted for the variation, or approved the variation by a valid majority, I am more than happy to entertain an application for a variation to the current agreement. The objects of the Act are such that what you want to do, so long as it is fair and legal, you ought to be allowed to do and I will assist you in anyway to do. So if that is the position of the parties, the employer and employees and unions concerned, then I will do whatever is required.

PN24

However, I cannot do it on the face of an application which says, please certify this agreement. That is all I have got before me at the moment. However, as I said, if that application is to be withdrawn and if there is to be a consent variation to the current ACT Forests Agreement, all the unions who are party - I think this is for your purposes more than anyone, Mr Faulks - - -

PN25

MR FAULKS: Thank you, Commissioner.

PN26

THE COMMISSIONER: - - - to that agreement, are in a position to consent to that variation and can assure me in the correct way that all the requirements of 170MD have been met in relation to that variation, I see no obstacle at all to the ACT Forests Agreement being varied. I do not consider the variation - in fact, I feel more secure about the variation. There could be a slight argument, I suppose, that the new certified agreement was inconsistent. I cannot see it, but somebody could try and mount that argument. But with a variation there is no doubt about the legality of what is being done. But that has to be a consent variation.

PN27

It has to have the agreement of all the unions who are party to the agreement and as I said, I have to be assured that the documentation required by the Act and that the matters that are set out in 170MD have been satisfied. In which case, I am more than happy to vary it. Now, do you want to keep going now, or do you want a few minutes to think about it?

PN28

MR DEVINE: No, Commissioner. I think that the arrangement that I made with the unions has basically been satisfied. I am prepared, Commissioner, to withdraw the application for a section 170LJ and put up the relevant documents in regards - well, I believe the relevant documents in regards to an application to vary - a consent application to vary the - - -

PN29

THE COMMISSIONER: Right. So you want to withdraw the matter that is before me at the moment in AG2001/2313 which is the new certified agreement for the ACT Forests and that is an LJ agreement between you and APESMA and AWU? Mr Noud, what is your view on that?

PN30

MR NOUD: I have no objection to that.

PN31

THE COMMISSIONER: No objections?

PN32

MR PRITCHARD: No objection.

PN33

THE COMMISSIONER: No objection, Mr Pritchard, all right. Well, I consider that application withdrawn. Do you wish to make a new application, Mr Devine?

PN34

MR DEVINE: Thank you, Commissioner. I am afraid that I have only got one.

PN35

THE COMMISSIONER: Please talk into the microphone, Mr Devine.

PN36

MR DEVINE: I often talk to myself. I am afraid I have only one copy of the signed agreement to consent to the variation, Commissioner. If it was possible at a later stage, I would like to get a copy off the Commission so that we can give it to all of the parties.

PN37

MR NOUD: Just on that, Commissioner. I think I may have signed in the CFMEU's box, so we have got some other ones and we might pass it along and have it resigned.

PN38

THE COMMISSIONER: It might be an idea. There does seem to be a bit of - - -

PN39

MR NOUD: Confusion.

PN40

MS SCHOONWATER: He is certainly not signing for us.

PN41

THE COMMISSIONER: No. Well - - -

PN42

MR NOUD: I thought I was signing for me, but I may not have.

PN43

THE COMMISSIONER: Well, yes, true. I can understand this. Can we have another one signed? Can everybody sign - - -

PN44

MR NOUD: So we sign above - - -

PN45

THE COMMISSIONER: Above, yes.

PN46

MR NOUD: Above the name.

PN47

THE COMMISSIONER: Yes.

PN48

MR NOUD: I am sorry about that.

PN49

MR DEVINE: It is difficult for APESMA, Commissioner. They are under a lot of stress.

PN50

MR NOUD: So I am signing above.

PN51

MR DEVINE: Commissioner, should I address you in regards to the provisions of the Act?

PN52

THE COMMISSIONER: In relation to the variation?

PN53

MR DEVINE: Yes.

PN54

THE COMMISSIONER: Yes. Well, since I have got a new application and it is a consent variation and it will be given a file number as soon as we finish with it, could I take appearances on this application?

PN55

MR P. DEVINE: If it pleases the Commission, I appear for the Department of Urban Services and ACT Forests and with me is ECCLES J.

PN56

MR R. NOUD: If it pleases the Commission, I appear for APESMA.

PN57

MR K. PRITCHARD: If it pleases the Commission, for the Australian Workers Union.

PN58

MR P. SEAL: If it pleases the Commission, for the Transport Workers Union.

PN59

MS S. SCHOONWATER: If it pleases the Commission, I appear on behalf of the CFMEU.

PN60

MS L. FRANCIS: If it pleases the Commission, for the Community and Public Sector Union.

PN61

THE COMMISSIONER: Thank you. Mr Devine?

PN62

MR DEVINE: Thank you, Commissioner. Under section 170MD there are a number of things that we need to address the Commission in regards to. Commissioner, first I will deal with the more mundane aspects of the voting process to that. It would inform the Commission of the wishes of the majority of the employees.

PN63

On 20 April 2001, Commissioner, a vote was held by the staff in regards to the contents of the variation. There were 42 staff who are eligible to vote at ACT Forests, 39 staff actually voted, 37 staff voted in favour and two voted no. There were no informal votes. Commissioner, that is a approval rating of 94.87 percent and I feel it is our position that we believe that this is a clear undertaking, or a clear indication to the Commission of the wishes of the valid majority of the employees.

PN64

Commissioner, 170MD states that the Commission must be satisfied that a valid majority of employees whose employment is subject to the agreement had time generally to approve the variation. Commissioner, on 3 April we provided the staff with lists - with a copy from - with copies of the EBA. The EBA was, in fact, addressed in envelopes to each of the individual staff and was handed out by a Mr Neil Cooper. When Mr Cooper could not find a staff member he provided those copies to their supervisors. I have unfortunately an unsigned letter because of email, but I have a letter here from Mr Cooper identifying how it was that the documents were provided to the staff, if it pleases the Commission.

PN65

THE COMMISSIONER: Go ahead, Mr Devine.

PN66

MR DEVINE: Commissioner, further, 170MD(3)(b) says that:

PN67

The Commission should accept the variation if the Commission would have been required to certify the agreement as varied as if it was a new agreement.

PN68

Commissioner, we believe that we have fulfilled with the stat decs all of the relevant requirements of the Act in regards to the certification of the new EBA. It is not a greenfield site. We gave the staff more than 14 days and the turnout of the staff on the voting day is an indication that the vast majority, the overwhelming majority of staff actually obtained some form of information in regards to the EBA.

PN69

Also, Commissioner, I conducted a meeting with the staff directly with the AWU present informing them of the circumstances of the enhanced redundancy provisions. There have also been a number of documents provided earlier on in the piece when we announced the restructuring of ACT Forests that explain to the staff the conditions as outlined in the variation. Commissioner, I do not think that I have anything more to say unless I have failed to address the Commission on an issue that you would like to hear from me on.

PN70

THE COMMISSIONER: No. So, the EBA is in the terms - the EBA was handed out. It is in the exact terms of the variation that an application has been made for?

PN71

MR DEVINE: Yes, apart from the fact that the EBA - - -

PN72

THE COMMISSIONER: Substantively?

PN73

MR DEVINE: Yes, that is right. All of the words that we have used in the variation are the exact words given some textural variation to make it that way, that there is a variation, exactly the same words and exactly the same - - -

PN74

THE COMMISSIONER: So it has the same effect that the EBA would have had?

PN75

MR DEVINE: Yes.

PN76

THE COMMISSIONER: So this variation will have substantively the same effect that the EBA would have before?

PN77

MR DEVINE: Exactly the same in our opinion, Commissioner.

PN78

THE COMMISSIONER: Thank you, Mr Devine. Mr Noud?

PN79

MR NOUD: Commissioner, we support the application for the variation. We have furnished statutory declarations in respect of the application to certify the 170LJ agreement. Should you require declarations in respect to an MD variation, we are happy to furnish those, but if you are happy to accept the LJ stat decs on that basis - we have consulted extensively with our members on this issue. There has been a lengthy negotiation and process which you have been involved in at different stages. We have explained the effects of both the agreement and translating that variation to our members. They are very much aware of it. On that basis, I submit that it should be certified - or varied.

PN80

THE COMMISSIONER: Thank you. Mr Pritchard?

PN81

MR PRITCHARD: Thank you, Commissioner. The AWU supports the consent variation before the Commission.

PN82

THE COMMISSIONER: Thank you. Mr Seal?

PN83

MR SEAL: If the Commission pleases, the Transport Workers Union supports the consent variation before the Commission. I think the Commission should note that discussions with our members, in fact, centred around a variation to the enterprise agreement, not another enterprise agreement, and on that basis we support its variation.

PN84

THE COMMISSIONER: Thank you. Ms Schoonwater?

PN85

MS SCHOONWATER: Commissioner, we support the submission of the TWU and similarly our members centred around the variation.

PN86

THE COMMISSIONER: Thank you. Ms Francis?

PN87

MS FRANCIS: Thank you, Commissioner. The CPSU supports the variation. Thank you, Commissioner.

PN88

THE COMMISSIONER: Thank you. I am satisfied that all the requirements of section 170MD have been met and that the ACT Forests Certified Agreement should be varied in accordance with this consent application to vary. I am satisfied that had it formed part of the original certified agreement I would have been required to certify the agreement. So the variation will be certified with effect from today's date, 2 May 2001, and it will have the same nominal expiry date as the original agreement.

ADJOURNED INDEFINITELY [9.57am]