AG2002/167, Transcript of Proceedings [2002] AIRCTrans 2659 (12 July 2002)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 2, 16 St George's Tce, PERTH WA 6000
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TRANSCRIPT OF PROCEEDINGS

WTO 4932

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

DEPUTY PRESIDENT McCARTHY

AG2002/167

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LK of the Act
by Minesite Catering Pty Ltd for certification
of the Minesite Catering (Onshore Operations)
170LK Certified Agreement 2002

PERTH

10.05 AM, THURSDAY 27 JUNE 2002

PN1

MR T.O. ADAMS: Good morning, your Honour. I appear on behalf of Minesite Catering.

PN2

THE DEPUTY PRESIDENT: Mr Adams. Any other appearances?

PN3

MR ADAMS: No, there are not, your Honour.

PN4

THE D.PRESIDENT: Mr Adams, you may be aware, I've had communication from Mr Llewellyn from the Australian Workers Union. There is a couple of communications that I've had, the essence of it being a request to have this matter adjourned because of his unavailability due to attendance before another Commission's proceedings in Port Hedland. He has indicated and provided me with material that identifies that he has had requests by employees for the AWU to represent them in any proceedings relating to the certification of this agreement and either through section 43 or section 170LK or LM to represent their interests. I'm just wondering whether you have any view on that?

PN5

MR ADAMS: Well, yes, your Honour, we do and I suppose in short, the position of the applicant would be that we would oppose the written application for an adjournment of the proceedings. Notwithstanding Mr Llewellyn's inability, I would imagine that there are other officers available at the union who may otherwise have been able to make themselves available to come down here. We have had on more than - on at least three occasions during the course of the discussions with the employees with respect to the agreement, your Honour, tried to arrange meetings with Mr Llewellyn to discuss what we apprehend to be his concerns in relation to the agreement.

PN6

All of the meetings that were arranged between Mr Llewellyn and Mr Tony Walsh, the Operations Manager from the company, were cancelled by Mr Llewellyn. So notwithstanding the company's best endeavours to deal with the alleged issues or concerns with the agreement, we've not been able to do so. We come before the Commission today seeking to have the agreement certified. We're not aware of what the concerns are that have been raised by the union and we oppose the union's application for an adjournment and we ask that the matter proceed.

PN7

THE DEPUTY PRESIDENT: So are you opposing the intervention?

PN8

MR ADAMS: We are opposing the union's application for the intervention.

PN9

THE DEPUTY PRESIDENT: On what bases?

PN10

MR ADAMS: Well, I understand, your Honour, that at least insofar as section 43 of the Act is concerned, I can't oppose the application to intervene, but the application for an adjournment, which is what I understand Mr Llewellyn had asked for.

PN11

THE DEPUTY PRESIDENT: So you're not opposing the intervention but you are opposing the intervention - - -

PN12

MR ADAMS: No, I can't oppose the intervention but I do oppose the application to adjourn.

PN13

THE DEPUTY PRESIDENT: Sorry, I must have misheard you. I thought you said you were opposing the intervention. So you're not opposing the intervention?

PN14

MR ADAMS: No, I can't. One assumes, of course, your Honour, that Mr Llewellyn is properly authorised in respect of the requirements of section 170LK, subsection (4) and on the basis that he has the appropriate authorisations, my understanding at least is anyway that the Commission is duty bound to allow the intervention.

PN15

THE DEPUTY PRESIDENT: That is correct. Well, he has provided me with letters that presumably are letters from employees that would be bound by the agreement, requesting that the union intervene and/or be bound by the agreement. There are two issues, I suppose. One is the intervention and you're quite right and on the appearance as in the information that has been provided, he does have the appropriate authority to allow and require intervention under section 43(2)(a) and it would also appear, authority for the union to be bound by the agreement, presumably through section 170LM. And again, providing that the authorities are there and the procedures have been complied with under 170LM, providing they have been complied with, then they have to be also bound by the agreement. I think it is, yes, 170M. I keep saying LM. 170M.

PN16

MR ADAMS: Subsection (3), your Honour.

PN17

THE DEPUTY PRESIDENT: Yes.

PN18

MR ADAMS: I'm assuming again in relation to the application, insofar as it relates to being bound by the proposed agreement, one assumes that the Commission has been properly notified in relation to the union's request that they be bound by the award. One could say that in relation to the advice that is required of the statute to be provided to the employer, it has probably been effected by force of a letter that was sent to the company by fax on 15 April this year, where the union indicates to the company that its intention to seek to be bound by the agreement.

PN19

So insofar as the notifications are concerned, all would appear to be in order and moreover, if one is to assume that the letters that have been provided to the Commission are from employees who the union has the constitutional capacity to cover, then there is probably no contest insofar as the application to be bound by the agreement is concerned. So both in respect to the application to intervene and the application to have the matter adjourned with respect to the intervention, as is the case with the application to be bound, there is not much that I can say, assuming that everything is in order with respect to the paperwork. But in relation to the application for an adjournment, your Honour, we would seek that the application be disallowed and that the matter proceed this morning.

PN20

THE DEPUTY PRESIDENT: It would seem a bit awkward if the union, and on the face of it they have complied with the requirements in order to intervene on behalf of employees. They've had the various requests and they're granted intervention, but if the intervention is granted and then they aren't given the opportunity to address the reasons underlying that intervention being sought, then it is a bit of a nullity as to the intervention and the purposes behind it. That is the difficulty I am and you are faced with, Mr Adams. So what I think I will do, if you proceed to outline anything you wish to draw to my attention today and I will consider, in the light of what you do identify and what you do raise and the other material that has been presented, whether I will adjourn the matter or whether I will certify the agreement, but perhaps if you would prefer to have it adjourned to - to have it all dealt with at the one time, I am also receptive to that.

PN21

MR ADAMS: So, your Honour, the intention is that you will listen to what we have to say this morning with respect to the application to have the agreement certified?

PN22

THE DEPUTY PRESIDENT: Yes. Yes.

PN23

MR ADAMS: You may elect subsequently to certify the agreement or to delay certification, if I can characterise it that way, subject to - - -

PN24

THE DEPUTY PRESIDENT: Well, I would either certify on the basis of what you say and in that case I would not be granting an adjournment or I would not certify, in which case I would be granting an adjournment for the purposes of me being addressed by an intervener should they be given - and it would appear they will be given - right to intervene. So what I'm saying is that you can either outline your reasons why the agreement should be certified and run the risk, I suppose, of it not being certified and then having to come back here and either re-go through those reasons or expanding on them, or if you do agree to an adjournment, then dealing with it once Mr - we can get a common date when Mr Llewellyn is available.

PN25

If it helps you, Mr Adams, on my looking at the material, I will need, I think, in order to be able to certify the agreement, quite a deal of detail in order that I can be satisfied that the no disadvantage test is satisfied. I don't currently have that, from what has been presented.

PN26

MR ADAMS: No. No. Well, my intention this morning, your Honour, is to enter into evidence a number of exhibits, which will help us to explain the extent to which the agreement that we seek to have made meets the no disadvantage test.

PN27

THE DEPUTY PRESIDENT: Well, I'm likely, if I can just interrupt, I'm likely to need to deliberate on that rather than issue a decision certifying the agreement this morning. So it is up to you whether you would prefer to maybe consent on it? I'm not trying to force you into consenting to an adjournment, I know what you say.

PN28

MR ADAMS: No, no, I'm just - I've got a number of issues just ticking over at the moment, your Honour.

PN29

THE DEPUTY PRESIDENT: Do you want a brief adjournment to be able to consider that?

PN30

MR ADAMS: If you wouldn't mind - yes, yes. I only need a few minutes, if you wouldn't mind. Thank you.

PN31

THE DEPUTY PRESIDENT: Okay. Perhaps what I will do is, I will adjourn this. I have another certification due in a few minutes time. Following that matter, then I will reconvene this matter, Mr Adams.

PN32

MR ADAMS: Very well. Thank you, your Honour.

PN33

THE DEPUTY PRESIDENT: This matter is adjourned.

SHORT ADJOURNMENT [10.18am]

RESUMED [10.55am]

PN34

THE DEPUTY PRESIDENT: Yes, Mr Adams? How would you prefer I deal with it?

PN35

MR ADAMS: Well, your Honour, the position of the applicant company is that reluctantly we will agree to the written application by the union for an adjournment of this certification application, but in doing so we want to make a number of statements in relation to how this matter has come before the Commission today from the union's point of view. The stat dec that has been submitted to the Commission in relation to the certification of this agreement says that on three occasions following the drawing to the company's attention of concerns by the union, arrangements were made to meet with the union to discuss these concerns, all of which were cancelled by the union.

PN36

The last meeting that was arranged was on 27 May. There has been a month, your Honour, since the cancellation of that last meeting. During which time, in our respectful submission, the union could have if they were so inclined, made another arrangement to meet with the company, who has at all times made itself available for such meetings. Now, I hasten to add that no such request has been made of the company. The concerns that have been raised by the union in the letter to the company dated 15 April are bland, in our submission ill-informed, but lacking in detail. We have no idea other than that the issues go to the questions of no disadvantage test and the ballot process, as to what the concerns are that the union has.

PN37

Nor has there been any attempt on the union's part to draw these matters to our attention, in detail such that we can address them. I apprehend, your Honour, from some statements that you've made earlier, that information which may provide the company with some further detail as to what the concerns of the union are with the Commission and we would request that copies of the documentation or information that is with the Commission be made available to the company in order that we can set about addressing the concerns that the union seems to have.

PN38

There are two other issues that probably need to be noted, your Honour. The first one is that the arrangements that have been put in place in relation to the agreement, with respect to the salaries that are currently being paid and the proposals during the life of the agreement for there to be salary increments mandate a requirement, or mandate a salary adjustment upon certification of the agreement, a not insubstantial, might I add, salary adjustment of 4 per cent. Now, because of the actions of the union this morning, your Honour - - -

PN39

THE DEPUTY PRESIDENT: When did they intend it to take effect from?

PN40

MR ADAMS: As soon as the agreement is certified.

PN41

THE DEPUTY PRESIDENT: So they're linked to the certification date?

PN42

MR ADAMS: Yes, they are.

PN43

THE DEPUTY PRESIDENT: Yes.

PN44

MR ADAMS: And while not providing a lot of detail this morning, I should say for the record that an overwhelming majority of employees who voted for the agreement voted in favour. An overwhelming majority.

PN45

THE DEPUTY PRESIDENT: Yes.

PN46

MR ADAMS: These people are going to have their wage adjustment deferred as a consequence of the actions of the union, who represents a very small minority of employees at the company.

PN47

THE DEPUTY PRESIDENT: Yes.

PN48

MR ADAMS: And as a consequence of the union's action this morning - - -

PN49

THE DEPUTY PRESIDENT: I doubt they will be happy.

PN50

MR ADAMS: Well, that would be putting it mildly, your Honour.

PN51

THE DEPUTY PRESIDENT: Yes.

PN52

MR ADAMS: At the moment we're looking at a situation where - unless, of course, the company's inclination is to back date the increase following certification, assuming the matter comes back on for hearing in a month or so, but it has to be said that the agreement - - -

PN53

THE DEPUTY PRESIDENT: I would be looking at listing it within 7 days, Mr Adams.

PN54

MR ADAMS: Well, that gives us some comfort, your Honour, thank you. The last thing that I want to say, your Honour, is that I noted the presence in the court today of Mr Young, who works on a part-time basis at the AWU and who, to my knowledge and to the knowledge of other people within the company that I work for, has initiated proceedings and applications in this Commission on behalf of the AWU and one would suspect from that, that Mr Young has some authority to act and appear on behalf of the union.

PN55

Now while I accept that Mr Llewellyn is probably better informed and has been requested to appear or act on behalf of the employees at Minesite Catering in relation to this matter, nonetheless it has to be said that Mr Young is an experienced advocate and one who clearly has the time to make himself available. He has been here since this matter commenced at 10 am this morning. And one ponders, and I put it no higher than that, your Honour, whether in fact the objections that the union has in relations to these matters might not have otherwise proceeded this morning. So having said all of that, extremely reluctantly, we will concede the union's application for an adjournment and respectfully request that the Commission note the concerns of the company.

PN56

We will make an endeavour to get in touch with Mr Llewellyn. I understand he is in Port Hedland today but he is due back tonight or tomorrow morning. We will make another attempt to arrange a meeting with Mr Llewellyn to get to the detail of the concerns that he has or that our employees have, with a view to overcoming them or at least satisfying them to the best of our ability that they are concerns that he ought not have. In any event, we are pleased and note for the record and appreciate your Honour's indication that the matter will come back on to hearing at short notice.

PN57

THE DEPUTY PRESIDENT: Yes. I can fully understand your angst, Mr Adams, particularly from the content of the statutory declarations which you have elaborated on this morning or referred to this morning over the processes that have been gone through, and the somewhat frustration that you and the parties to the agreement may have. I will list the matter within 7 days. My associate will be in contact with you to ensure that you have an availability at that time and should the union not be available, they will have to make arrangements to ensure that whatever they have concerns over is raised.

PN58

I should mention that should this have been any other nature of matter, an LJ matter or any other matter where the union was directly a party to it, I would not have been as receptive to their request. But when one bears in mind the provisions of 43(2)(a) and in effect the union is in effect representing employees party to the agreement rather than being a party in its own right, I think there is an obligation on me - well, I don't think, I know there is an obligation on me to ensure that the interests of those employees are given due weight and every consideration. And as it is not there because of them that the union has not been able to be here today but nevertheless they have expressed their objections and their request for representation, and unfortunately that representation has not been able on this occasion to be here.

PN59

Now, I would also mention that I will ensure that the union - and if Mr Young is here in the public gallery, I'm sure he will convey this to the officials of the union - but the union is directed to provide you with any materials that it has corresponded to the Commission with within 24 hours. Should they not be provided to you, if you request my office after that 24 hours has transpired, if you have not received them we will make them available to you. I will list it within 7 days. It would facilitate, I think, the proceedings, Mr Adams, in the 7 days time, if it was possible in the meantime for you to provide my office with some form of comparison chart or some greater outline of how the agreement does not contravene the no disadvantage test.

PN60

Having said all that, I will adjourn the matter in accordance with what I have just indicated. Thank you, Mr Adams.

ADJOURNED ACCORDINGLY [11.05am]