AG2002/2382, Transcript of Proceedings [2002] AIRCTrans 1780 (22 May 2002)

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TRANSCRIPT OF PROCEEDINGS


O/N VT03911
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT WATSON

AG2002/2382

APPLICATION FOR CERTIFICATION OF
AGREEMENT

Application under section 170LJ of the Act
by the Finance Sector Union of Australia and
Another for certification of the FSU/SGE Credit
Union Enterprise Agreement 2001/2003

MELBOURNE

11.44 AM, WEDNESDAY, 8 MAY 2002

PN1

MS M. MALONEY: I appear on for the Finance Sector Union of Australia.

PN2

MR R. CLARK: I appear from the State Government Employees Credit Union.

PN3

THE SENIOR DEPUTY PRESIDENT: Yes, Ms Maloney.

PN4

MS MALONEY: Thank you, your Honour. Your Honour, this is an application made under division 2 of part VIB of the Workplace Relations Act 1996 for the certification of the FSU/SGE Credit Union Enterprise Agreement 2001/2003. The application has been made or the agreement has been made pursuant to section 170LJ of the Act and the Finance Sector Union seeks the certification of the agreement pursuant to section 170LT of the Workplace Relations Act. Sir, the signed copies of the agreement plus the statutory declarations have been lodged. A statutory declaration by Paul Schroder, the Assistant National Secretary of the Finance Sector Union - - -

PN5

THE SENIOR DEPUTY PRESIDENT: I am sorry, I thought it was Mr Geoff Derrick, the Secretary of the NSW/ACT Branch.

PN6

MS MALONEY: It was Geoff, your Honour. I apologise, your Honour, I have been given different advice. Yes, sir, it was Geoff Derrick, you are absolutely, the Secretary of the New South Wales/Australian Capital Territory Branch of the Finance Sector Union. I apologise for that. Secondly, the other statutory declaration is by Mr Clark who is appearing here today of 230 Claren Street, Sydney. Mr Clark is the Chief Executive Officer of SGE Credit Union Limited.

PN7

Sir, how I intend to proceed I wish to firstly address the Commission in respect to the tests associated with the certification of agreement pursuant to 170LT and then secondly I will address the Commission specifically in relation to two clauses. Those clauses are 24, understanding on union membership, and clause 29, enterprise bargaining fee. So firstly, sir, I can say there is 120 employees covered by this agreement.

PN8

As required by 170XA(2), the certification of the agreement would not result on balance in a reduction in the overall terms and conditions of employment of employees who will be covered by the agreement. We would submit, your Honour, that this is attested to by the statutory declarations that have been lodged and if we take your Honour to - I will go to Mr Geoff Clark's statutory declaration. I take your Honour to item 7.4, the second last page of the statutory declaration.

PN9

THE SENIOR DEPUTY PRESIDENT: Yes.

PN10

MS MALONEY: And in particular, your Honour, this agreement provides for pay increases of between 6.7 per cent and 8.7 per cent. It also provides for a 1 per cent increase in employer's superannuation contributions. They can be found in clause 8 of the agreement. The agreement also provides for the abolition of junior rates pay and this can be found in clause 11 of the agreement. The agreement also provides for paid parental leave for both female and male employees and this can be found in clause 16 of the agreement. Sir, I also take your Honour to clause 12 of the agreement.

PN11

THE SENIOR DEPUTY PRESIDENT: Yes.

PN12

MS MALONEY: Sir, clause 12 of the agreement deals with gradings and performance pay and it provides firstly at 12.1 for:

PN13

The Credit Union is committed to the development of a suitable competency based grading structure which will accommodate an objective performance appraisal system, support staff advancement and allow for the introduction of a performance related pay system for all employees.

PN14

Then at 12.2:

PN15

This competency based grading structure will be researched and developed during the life of this ...(reads)... of all interested parties.

PN16

Finally in 12.3:

PN17

Any new pay system is to be introduced with the approval of the board of directors and will be clearly ...(reads)... and/or arbitration.

PN18

So clearly, sir, there is a commitment by the parties to introduce a new pay system during the life of the agreement and is a clearly a commitment by the parties that that process will entail the full involvement, negotiation of all parties to the agreement which obviously includes the employer, the union and the employees. I also take your Honour to clause 19 of the agreement. Clause 19 deals with training and that:

PN19

The Credit Union agrees to provide any training that it deems necessary to ensure that employees are able to carry out their duties safely and competently.

PN20

And it sets out there it is the recognition of the ongoing training needs of all employees and the clause also provides for payment to staff who undertake training outside of normal hours. Similarly, your Honour, I refer you to clause 20, staff development. Sir, this provides for staff development by encouraging staff to obtain formal qualifications in areas relevant to the Credit Union but also part of this process and as a demonstration of the employer's commitment to promoting staff development it has agreed to introduce a study reward program for staff and in particularly staff who have taken the initiative to go and pursue qualifications, formal qualifications that are relevant to the Credit Union and subject to them meeting certain criteria and obviously subject to them completing such qualifications, they may be eligible for a reward under the staff reward program.

PN21

So clearly it demonstrates the commitment by the employer with obviously the agreement of the union to promoting staff development and to encouraging the training and the obtainment of formal qualifications by the staff. Sir, at clause 22 of the agreement it provides for - its titled Staff Loans and it provides employees for concessional interest rates on loans after the employees have been employed for 12 months continuous service. So there is clearly a benefit there in terms of concessional interest rates in respect to loans.

PN22

Sir, I should also point out that at clause 3 of the agreement, relationship to parent award, this agreement is to be read and interpreted in conjunction with the Credit Union Award 1998 or its successors of the award provided that to the extent of any inconsistency this agreement will apply. So, sir, we would submit and as attested by the statutory declarations, that the agreement does satisfy the no disadvantage test. Sir, as required by section 170LT(5) of the Act, a valid majority of persons employed at the time whose employment would be subject to the agreement have generally approved the agreement. Now, in this respect we refer to part 6 of Mr Derrick's statutory declaration. Now, part 6 states at 6.1:

PN23

Was the agreement generally approved by a valid majority of persons employed at the time whose employment will be the subject of the agreement? Yes.

PN24

And then it specifies the steps that were taken by the employer in terms of that approval process. In terms of the requirements of section 170LJ(3) and section 170LT(7) of the Act we would submit that before the approval of the agreement the employer took all reasonable steps to ensure that every person employed at the time whose employment will be subject to the agreement either had or had ready access to the proposed agreement in writing. We would also submit the employer also took reasonable steps to explain the terms of the agreement to employees taking into account the particular circumstances and needs of those employees. We refer in this respect to 6.6 and 6.7 of Mr Derrick's statutory declaration wherein it states:

PN25

Did at least 14 days before any approval was given, did the employer take reasonable steps to ensure that every ...(reads)... in writing?

PN26

The answer is yes. Then it proceeds to set out steps that were taken and points out that copies of the final draft of the proposed agreement were distributed to all staff and meetings were held during working hours at which management and FSU representatives explained the agreement and answered questions. All staff were given the opportunity to attend these meetings. Then further down it states that the agreement was explained in detail by management and union representatives at meetings which all staff had the opportunity to attend.

PN27

Staff also had the opportunity to raise questions or queries about the agreement at these meetings or with management or the FSU directly during the three weeks that was before the ballot closed. Then it proceeds and it indicates in the statutory declaration, your Honour, that the agreement was approved by a valid majority of employees on 5 April 2002. So we say, sir, that the agreement has complied with the processes under section 170LJ(3) and meet the requirements of 170LT(7). Sir, at clause 23 of the agreement there is a disputes settlement procedure as required by section 170LT(8) of the Act and clause 6 of the agreement is titled Date and Period of Operation and provides:

PN28

This agreement will commence on the date of certification by the Australian Industrial Relations Commission and will remain in operation until 1 July 2003.

PN29

So clearly there is a expiry date specified that does not beyond the three year period. Now, sir, if I could take your Honour to clause 24 of the agreement and I wish to read clause 24 to your Honour. Clause 24 is titled Understanding on Union Membership and states:

PN30

24.1, SGE Credit Union recognises the FSU as the union with coverage of SGE ....(reads).... names and work locations of all staff.

PN31

Your Honour, the issue of union notification as it was being called, has been considered by a Full Bench of this Commission and I refer your Honour to the Atlas Steels Metals Distribution Certified Agreement 2001 to 2003 and Other Certified Agreements, found in print PR917092. Your Honour, I wish to hand up a copy of that decision.

PN32

THE SENIOR DEPUTY PRESIDENT: I have a copy, thank you.

[11.59am]

PN33

MS MALONEY: Your Honour, if I could take you firstly to page - I hope we have all got the same.

PN34

THE SENIOR DEPUTY PRESIDENT: Well, if you go by paragraphs we will be right.

PN35

MS MALONEY: Paragraphs, right. Thank you.

PN36

THE SENIOR DEPUTY PRESIDENT: Yes.

PN37

MS MALONEY: Firstly paragraph 4 which sets out - paragraph 4 sets out the clause that was contained in the six agreements - no, sorry, I retract that, your Honour. Paragraph 5. Paragraph 5 deals with the union notification decision and sets out there the clause that is contained in the Cadbury Schweppes Agreement and the Mitre 10 Agreement and that clause states:

PN38

The employer will upon written request supply to the union a list of the names, addresses and classifications ...(reads)... once every three months.

PN39

That clause is contained in clause 44 of the Cadbury Schweppes Agreement and also with the exception of only with the prior consent of the employees which is contained in the Mitre 10 Agreement. Now, your Honour, if I could take your Honour to paragraph 14 of the decision of the Full Bench.

PN40

THE SENIOR DEPUTY PRESIDENT: Yes.

PN41

MS MALONEY: Now, this was dealing obviously, and your Honour knows about the issue about whether matters can be included in a certified agreement if they do not - well, partly if they do not pertain to the employer/employee relationship and at paragraph 14 after considering the provisions of section 170LI(1) the Full Bench states:

PN42

For these reasons we do not accept the proposition that section 170LI(1) should be constructed to permit an ...(reads)... or administrative in character.

PN43

And I end the quote there. Now, your Honour, in that matter, as your Honour is aware, the Full Bench rejected the conclusion that Deputy President Ives came to in respect to the union notification clauses. He rejected the conclusion that they were incidental or necessary or other provisions in the agreement and in particular I take your Honour to paragraph 28. At paragraph 28 the Full Bench states:

PN44

The Deputy President found that clause 44 of the Cadbury Schweppes Agreement is ancillary to, incidental ...(reads)... employer and employees.

PN45

And I end the quote there. Sir, we say that in this matter that is before you and in particularly at clause 24.5 which does provide for the SGE Credit Union on request to provide the FSU with details of structures of the Credit Union and the names and work locations of all staff, we say that this provision is incidental and necessary to consultation about industrial change as it is linked to the rest of the clause which deals not only with the recognition of the FSU but clause 24 also deals with the process of cooperative and consultative approach between the employer and the union over workplace reform, also the introduction of productive work practices which are aimed at improving the efficiency and effectiveness of the Credit Union. Now, this is clear we say, your Honour, from clauses 24.3 which states:

PN46

The Credit Union and the FSU recognise the importance of working together in a cooperative relationship based ...(reads)... workplace reform.

PN47

Then at 24.4:

PN48

The Credit Union and the FSU are working productively and cooperatively to improve the efficiency and ...(reads)... of employees.

PN49

Now, sir, we say there that clause 24.5 is incidental and necessary to what could be described as a consultative approach to the introduction or industrial change. Now, the involvement of staff in that process we say is critical. The provision in 24.5 firstly of providing the FSU with the details of structures of the Credit Union, we submit will enhance the FSUs understanding of the organisational structure of the employer and this will improve the capacity of the union to constructively work with the Credit Union to improve the efficiency and the effectiveness of the Credit Union through productive work practices.

PN50

Similarly we would submit that the provision of the names and work locations of staff will facilitate the FSUs capacity to firstly encourage and promote staff involvement in the consultation process over any industrial change. Secondly, it will enhance the union's capacity to understand and represent any concerns staff may have in respect to changes. Thirdly, it will also enable the union to obtain a better understanding of the implications that industrial changes may have on staff including their work environment.

PN51

For example, by knowing an employee's work location there could be changes about, for example, change in locations and of course that might impact on the employee's travel arrangements or family arrangements, etcetera. Now, sir, example of such change is found, as I have taken you to previously, in clause 12 of the agreement and that is what I referred to your Honour before. The agreement and the employer to the introduction of a new pay system or the competency based grading structure and it is agreed that that will be introduced during the life of the agreement, but it is also agreed that its introduction, its development will be dependent upon the full involvement, negotiation and contribution of all interested parties.

PN52

So clearly that is one example that the parties have already identified where changes will occur but it will occur through involvement, negotiation, contribution of all interested parties. So we say, your Honour, that the provision in clause 24 and in particular clause 24, is different and distinguishable from the union notification clause that was considered by the Full Bench in Atlas Steels. Now, that clause as I have already taken your Honour to in Atlas Steels, and I take your Honour again to paragraph 5, stated:

PN53

The employer will upon written request supply to the union a list of names, addresses and classifications of ...(reads)... once every three months.

PN54

Now, we say that the provision in 24.5 is different and distinguishable because the clauses that were dealt by the Full Bench - or that clause that was dealt by the Full Bench only dealt with the issue of supplying the union with a list of the names, addresses and classifications of the employees who are covered by the agreement. It did not refer to any other provisions of the agreement. But clearly in this case that is before you we would submit that clause 24.5, providing for the names and work locations of staff is linked to consultation over industrial change and as such it is our submission that it can be included within a certified agreement. Your Honour, if I can take you to clause 29.

PN55

THE SENIOR DEPUTY PRESIDENT: Yes, the bargaining fee.

PN56

MS MALONEY: Your Honour, it is our submission that this provision which provides an enterprise agreement bargaining fee can be included in a certified agreement as the clause gives effect to an agreement between an employer and the union and that agreement is for the Credit Union to advise all current existing and new employees that a bargaining agent's fee, which is set out in the schedule contained in clause 29.6, is payable to the FSU and that the employee to whom the clause applies shall pay the bargaining agent's fee to the FSU on a pro rota basis for any time which the employee is employed by the Credit Union.

PN57

Now, it is our submission that this provision is distinguishable from what was considered by the Federal Court of Australia in Electrolux Home Products Pty Ltd v Australian Workers Union that will be found in FCA 1600 14 November 2001. I am sure your Honour is fully aware of that decision.

PN58

THE SENIOR DEPUTY PRESIDENT: I am aware of it.

PN59

MS MALONEY: Which I understand is currently - do you have a copy?

PN60

THE SENIOR DEPUTY PRESIDENT: I don't have a copy before me, no.

PN61

MS MALONEY: I didn't bring it. But, your Honour, the reference is Electrolux Home Products Pty Ltd v Australian Workers Union (2001) FCA 1600 14 November 2001. Sir, that decision dealt with the issue of unions taking protected actions in support of claims on a range of issues but one of the claims was for a union bargaining or an agent's fee or bargaining fee and in that decision the union's claim was:

PN62

That the company shall advise all employees prior to commencing work for the company that a bargaining fee of $500 per annum is payable to the union. The relevant ...(reads)... fee for the union.

PN63

Now, your Honour, in that matter Merkel J found that the bargaining agent's fee was not a matter - I should retract that. Found that the claim by the unions for a bargaining agent's fee was not a matter pertaining to the relationship between an employer and employee, rather his Honour found that it was more a relationship about a debtor and creditor and not between the employer and the employee. Your Honour, it is my understanding that that matter is currently under appeal before the High Court. However, this decision - - -

PN64

THE SENIOR DEPUTY PRESIDENT: Before a Full Court presumably of the Federal Court.

PN65

MS MALONEY: Full Court, Federal Court, that is right. Now, that decision was considered by the Full Bench in Atlas Steels and if I could take your Honour to paragraph 18 of the Full Bench decision in Atlas Steel.

PN66

THE SENIOR DEPUTY PRESIDENT: Yes.

PN67

MS MALONEY: The Full Bench stated:

PN68

It can be seen that the issues before the court in Electrolux related to the characterisation of the ...(reads)... in each case.

PN69

So clearly the Full Bench was referring to the fact that in the Electrolux matter it was clearly the unions had a claim with the employers. They had not reached an agreement with the relevant employers. I also take your Honour to paragraph 21 and 22 of the Full Bench decision in Atlas Steels where they state:

PN70

The critical issue is whether the decision in Portous determines the matter before us. Portous was ...(reads)... which they are in agreement.

PN71

Then the Full Bench goes on to state at paragraph 22:

PN72

The effect of the union fees clause is twofold. Firstly, the clause gives effect to the agreement between the ...(reads)... for the union.

PN73

Now, the Full Bench, your Honour, does go on to also say that the second aspect of the union fees deduction clause is that it does modify the provision dealing with the payment of wages by the employee giving his or her consent to having the union fee deducted from their salary or wages and then there is a decision been made as to how they wanted their salary or wages paid. Similar to a deduction for superannuation for example. So there was clearly that second aspect.

PN74

THE SENIOR DEPUTY PRESIDENT: Yes.

PN75

MS MALONEY: Now, we say this, sir. We say that whilst the Full Bench decision was dealing with a union fee deduction clause and not a bargaining agent fee clause, we say that the reasoning adopted by the Full Bench in that matter in determining that the union fee deduction clause could be included in a certified agreement, we say that reasoning also applies in respect to the enterprise agreement bargaining fee clause that we are seeking to have inserted as part of this certified agreement.

PN76

We say it for this reason, that the clause, that is the clause in clause 29 of the FSU/SGE Credit Union Agreement, that clause gives effect to the agreement between the employer and the union and on that basis we say it meets what can be characterised as the first feature that the Full Bench identified in paragraph 22 of the union fee deduction clause. So whilst it may not have the second aspect or it might be - well, I retract that. We rely on the first, that is, the clause does give effect to the agreement between the employer and the union.

PN77

So clearly it is distinguishable from Electrolux because in Electrolux his Honour was dealing with a claim by the unions and they were taking protected industrial action in support of the claims and the issue was whether those claims pertained to the matter of the employer/employee relationship and in that matter his Honour held that no, the bargaining agent fee did not pertain to it therefore the action taken in support of it was not protected. Now, obviously that is subject to appeal of the Full Court of the Federal Court, but as the Full Bench highlighted in Atlas, this is about an agreement.

PN78

There is a distinction between an agreement for a matter and the claim for the matter. So it is our strong submission that as was the case in the Full Bench decision in Atlas that the union fee deduction clause was - its effect was an agreement between the employer and the union, we say that the enterprise agreement bargaining fee clause gives effect to the agreement between SGE Credit Union and the FSU and as such we say that it can be included in a certified agreement.

PN79

THE SENIOR DEPUTY PRESIDENT: But there is another necessary step, isn't there, on the reasoning of the Full Bench? Paragraph 23, it is about the relationship between the employer and the union but it is not confined to that. It also affects the relationship between the employer and the employees and it sets out the manner in which that particular clause addressed in the Atlas decision does. How does it affect the relationship between the employer and employees in the case of this particular clause?

PN80

MS MALONEY: Well, your Honour, the submission we are putting is that if I could just go back to paragraph 22.

PN81

THE SENIOR DEPUTY PRESIDENT: Yes.

PN82

MS MALONEY: Where the Full Bench says:

PN83

The effect of the union's fee clause is twofold.

PN84

The first is it gives effect to an agreement between the employer and the union but the second effect is it modifies the payment of wages to employees. What we are saying, sir, is that - - -

PN85

THE SENIOR DEPUTY PRESIDENT: And that is in effect in that case how it deals with the second issue, that it also, apart from affecting the employer and union relationship, it also affects the employer/employee relationship. So it is the second - - -

PN86

MS MALONEY: It is the second. But it is our submission that - and that is what - well, from my understanding, that is what paragraph 23 is dealing with, the second effect. That is, how does it relate to the employer/employee relationship.

PN87

THE SENIOR DEPUTY PRESIDENT: Yes.

PN88

MS MALONEY: But my submission, your Honour, is and whilst we probably could put a submission as to how an enterprise agreement bargaining fee could relate to the employer/employee relationship that is obviously going to be dealt with somewhere else, but my submission is that because we meet the first effect that that should be sufficient to have it included in a certified agreement.

PN89

THE SENIOR DEPUTY PRESIDENT: But can that follow from that decision because what the Bench is there addressing is whether there is - and it is a matter of jurisdiction, whether the agreement relates to the employment relationship and in effect it is saying, well, it is about the relationship between the employer and the union but it also about the relationship between the employer and employee in this way and also it is required, isn't it?

PN90

MS MALONEY: Well, sir, the reason why we submit that there are probably two separate things is because - - -

PN91

THE SENIOR DEPUTY PRESIDENT: Well, they are separate things but the question is are they both necessary things.

PN92

MS MALONEY: We are saying that they are not both necessary and because if they were - if I could put it this way, if they were both necessary, that is, that not only did you have to have the agreement but you also have to demonstrate that it relates to the employer and employee relationship, if that was the case then it raises the question as to why the Full Bench needed to even look at the issue of an agreement as opposed to a claim, because if it still comes down to that the test you have to satisfy is that it pertains to the employer and employee relationship and it may affect other relationships but it has to meet that relationship, well, then it kind of raises the question then, well, if that is the case why would the Full Bench distinguish between a claim for something as opposed to an agreement to give effect to something. So that is why I have submitted that I think they are two separate requirements.

PN93

THE SENIOR DEPUTY PRESIDENT: They are separate things but is the answer to that that Portous was dealing with a claim and decided, well, you couldn't have a dispute about union fees because it wasn't a matter pertaining to employer/employee relationship and that is all the High Court had to deal with? It was only dealing with a dispute and whether the claim could fall within that relationship. But that doesn't preclude there being an agreement about a matter pertaining to such a claim and it being certified. But the question then is, is that subject to it also, relating to the employer/employee relationship.

PN94

MS MALONEY: Well, your Honour, by just applying Portous, the Full Bench could have still come to the conclusion of saying that a clause providing for deduction of union fees does pertain to the relationship of employer/employee because it modifies the way in which an employee's wages are paid. They could have come to that position whether it was an agreement or a claim in one respect because if you come to it by - - -

PN95

THE SENIOR DEPUTY PRESIDENT: Yes, I follow. Yes.

PN96

MS MALONEY: Yes, because it doesn't seem to follow because they still could have come to that position. So what we are submitting is that the effects of the clause in that, firstly, it gives effect to an agreement between the employer and the union, that is correct.

PN97

THE SENIOR DEPUTY PRESIDENT: Yes.

PN98

MS MALONEY: Well, we are saying that that is sufficient, that should be read as sufficient in terms of determining whether the subject matter can be included in a certified agreement.

PN99

THE SENIOR DEPUTY PRESIDENT: Yes. But it all goes back to LI, doesn't it, section 170LI, as dealt with earlier in the decision? That is really the starting point, isn't it?

PN100

MS MALONEY: The starting point, that is correct, sir, but they did make, in dealing with Electrolux and in dealing with Portous, the Full Bench did make a distinction between whether it was a claim or whether it was part of an agreement and that is why in paragraph 21 of the decision they said:

PN101

The critical issue is whether the decision in Portous determines the matter before us.

PN102

And Portous as you know is about a claim for union deduction fee:

PN103

Portous was concerned with whether a claim for the deduction of union fees was about a matter pertaining to the relationship between employers and employees.

PN104

And they emphasise, your Honour, the word claim:

PN105

The court decided that question in the negative. In this case we are concerned with whether an agreement -

PN106

once again the word agreement emphasised -

PN107

for the deduction of union fees is about a matter pertaining to the relationship between the employer ...(reads)... in agreement.

PN108

Now, while they go on to say what the effect of the clause is, and we say those effects are separate, they are not necessary to be read in conjunction; and as we said, the first effect is that the clause gives effect to the agreement between the employer and the union to provide the fee deduction facility. Because, your Honour, if you didn't go that way then it is arguable that in Portous it could have been said that a claim for a clause to deduct union fees is a claim to modify the way in which an employee has his or her wages or salary paid.

PN109

THE SENIOR DEPUTY PRESIDENT: Yes.

PN110

MS MALONEY: So that is why we say they didn't need - if they were to be read - if both requirements had to be met they didn't need the first one to get to the second one. So it is our submission, your Honour, that the fact that this clause gives effect to the agreement between SGE Credit Union and the FSU, does enable it to be included in a certified agreement.

PN111

THE SENIOR DEPUTY PRESIDENT: Yes.

PN112

MS MALONEY: Your Honour, in conclusion we would submit that the two parties have worked constructively and cooperatively to produce this agreement. We believe the agreement contains measures that benefit the employer and also improve the conditions of employment and enhance the career growth for the employees. It is our submission that the agreement meets the obligations contained in section 170LT of the Act and we would seek that the Commission exercise its powers pursuant to the Act to certify the agreement from today's date. If the Commission pleases.

PN113

THE SENIOR DEPUTY PRESIDENT: Thank you, Ms Maloney. Yes, Mr Clark.

PN114

MR CLARK: I am sorry?

PN115

THE SENIOR DEPUTY PRESIDENT: Do you wish to put any submissions?

PN116

MR CLARK: No, sir.

PN117

THE SENIOR DEPUTY PRESIDENT: Yes, very well. You simply rely on the statutory declaration?

PN118

MR CLARK: Yes.

PN119

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. Yes, very well. This is an application pursuant to section 170LJ of the Workplace Relations Act for certification of the FSU/SGE Credit Union Enterprise Agreement 2001/2003, an agreement reached between the Finance Sector Union of Australia and SGE Credit Union Limited. On the basis of the statutory declarations filed and the submissions put I am satisfied that all of the requirements of section 170LT and U of the Act have been met and that on that basis the agreement should be certified.

PN120

Ms Maloney for the FSU properly addressed two provisions which require particular consideration not in the context of section 170LU or LT but rather in the context of the jurisdictional basis for the certification of agreements within section 170LI of the Act. The first of those matters was subclause 24.5, a provision that the Credit Union would on request provide the FSU with details of structures of the Credit Union and the names and work locations of all staff. This is a provision with some similarity to a provision dealt with by a Full Bench in Atlas Steels Metals Distribution Certified Agreement and Others in print PR917092.

PN121

In that decision the Bench found that the particular clause there being considered did not pertain to the relationship between the employer and employees bound by the agreement and rejected a finding of Deputy President Ives that the provision in that case was incidental to various matters within the agreement. The Full Bench noted at paragraph 39, and I would indicate I am dealing here with the published version and the paragraph numbers for which reasons which escape me seem to differ as well, found that:

PN122

Whether a particular clause in an agreement pertains to the relationship depends on the form of the clause, its content and effect. Our decision in this case is based on the wording of the clauses before us.

PN123

I am satisfied that Ms Maloney is correct in her submission that the terms of the provision in subclause 24.5 and its context are different to that in the matter and the provision considered by the Full Bench in Atlas Steels. In that particular case the relevant provision, clause 44 of the Cadbury Schweppes Agreement, stood alone and the Full Bench saw no apparent relationship to any other provisions within the agreement.

PN124

In the circumstances of this matter subclause 24.5, as the term subclause suggests, forms part of a broader clause 24 and properly read in context has relationship to other provisions within the clause, in particular subclauses 24.3 and 4 and I accept the proposition advanced by Ms Maloney that this clause read in context is distinguishable from that considered by the Full Bench in Atlas Steels in that it has an association with other provisions within the same clause and is properly considered as being incidental to the operation of the other provisions there identified.

PN125

Accordingly in my view clause 24.5 is not of the same character as that dealt with by the Full Bench in Atlas Steels and can be properly contained within an agreement for certification. The other issue brought to the attention of the Commission by Ms Maloney was clause 29 which dealt with enterprise bargaining fee. Ms Maloney brought to my attention, not that I was ever oblivious of it, the judgment of Merkel J in the Electrolux matter, FCA 1600, in which he found that a claim as distinct from agreement for a bargaining fee was not capable of the protection of a bargaining notice and protected action associated with a bargaining notice.

PN126

The decision in Electrolux was dealt with in the Full Bench decision in Atlas Steels and was relied upon by Ms Maloney in that it distinguished in terms of Electrolux and the decision of the High Court in Portous relied upon in Electrolux between a claim for the deduction of union fees which raises a question about matters pertaining to the relationship between employers and employees within Portous in the context of a finding of an industrial dispute and the question of a provision dealing with bargaining fees in the context of an agreement between an employer and a union raised the question about a matter pertaining to the relationship between the employer bound by the agreement and the employees covered by the agreement.

PN127

It was put by Ms Maloney that that distinction, which I note in passing was also one made by Munro J in the Webforge's matter, print PR914378, is important and whilst a claim for bargaining fees might not be capable of forming part of an industrial dispute or indeed attracting the protection of a bargaining period notice of intention to take industrial action under the Act could nonetheless in the context of an agreement be found to be about a matter pertaining to the relationship between the employer bound by the agreement and employees covered by the agreement.

PN128

I accept the distinction made by Ms Maloney, which is one reflected in the Atlas decision and again in the decision of Munro J in Webforge, and I am satisfied that the provision in clause 29 is capable of inclusion within the agreement and the agreement may be certified. To some degree that involves an issue of characterisation of the matters dealt with within the agreement and clause 29 is not, I might say, simple in its terms and structures.

PN129

But I am satisfied that to the extent necessary it does pertain to the relationship between the employer bound by the agreement and employees covered by the agreement and has some degree of commonality with the issue of union deductions dealt with in the Atlas decision in that part of the provision provides for the direct debit authority and deduction of the union bargaining - enterprise agreement bargaining fee dealt with more broadly in the agreement.

PN130

Accordingly I am satisfied that neither of those provisions prevent certification of the agreement in the terms entered into by the parties. In accordance with section 170LT of the Act I will certify the agreement in those terms. The agreement shall come into force from 8 May 2002 and shall remain in force until 1 July 2003. I will now adjourn these proceedings.

ADJOURNED INDEFINITELY [12.40pm]