AG2002/890, Transcript of Proceedings [2002] AIRCTrans 283 (29 January 2002)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER BACON

AG2002/890
AG2001/8031

DETERMINATION OF DESIGNATED AWARD
FOR CERTIFIED AGREEMENT

Application under section 170XF of
the Act by The Australasian Meat Industry
Employees Union for determination of
designated award for certified agreement

APPLICATION FOR CERTIFICATION OF AGREEMENT

Application under section 170LK
of the Act by Ramsey Food Packaging Pty Ltd,
Ramsey Food Services Pty Ltd, Ramsey Food Packaging
No 2 Pty Ltd and Paul Allen Contracting Services Pty Ltd
for certification of the South Grafton Abattoir
Certified Agreement 2001

BRISBANE

10.07 AM, FRIDAY, 18 JANUARY 2002

PN1

THE COMMISSIONER: Can I take the appearances, please.

PN2

MR G. HATCHER: May it please the Commission, I appear for Ramsey, or I seek leave to appear for Ramsey Food Packaging Proprietary Limited, Ramsey Food Services Proprietary Limited, Ramsey Food Packaging No 2 Proprietary Limited, and Paul Allen Contracting Services Proprietary Limited, in relation to the application for certification of the South Grafton Abattoir Agreement.

PN3

Commissioner, there is also a matter that's been called this morning which purports to be an application under section 170XF of the Workplace Relations Act. Could I enter a conditional appearance in that on behalf of those same companies, Commissioner, the purpose of entering a conditional appearance being that we do not concede that there is an application properly before the Commission for the purposes of that section. If it assists, I can explain that in very short frame.

PN4

Section 170XF contemplates, Commissioner, a party to - an employer or organisation of employees who proposes to make a certified agreement making an application. My client proposes to make an application for a certified agreement - in fact, has made application for a certified agreement with its employees - and no organisation of employees has sought to be party to that agreement. Accordingly, there is no one who proposes to be party to a certified agreement for the purposes of 170XF(1)A who brings application.

PN5

Similarly, if one has regard to 170XF(1)B, in order for there to be an application there must be - one must be able to satisfy the Commission that there is no relevant award in relation to some or all of the persons to whom the agreement will apply. And, Commissioner, all the employees subject to this agreement, as is clear on the face of the documents, previously had their employment conditions regulated, and indeed at the moment still have their employment conditions regulated by an Australian Workplace Agreement, and this Commission determined that the designated award for the purposes of that agreement - those workplace agreements was the Butchers Wholesale Newcastle and Northern Consolidated Award, an award that, intriguingly enough, the document that we are provided with, which purports to be an application under 170XF, is said to be appropriate for deciding whether the agreement meets the no disadvantage test.

PN6

THE COMMISSIONER: Very well. Thank you, Mr Hatcher.

PN7

MR HATCHER: If it please.

PN8

THE COMMISSIONER: I am still after appearances.

PN9

MR J. DAVIS: Yes. I appear for the Australasian Meat Industry Employees Union, Newcastle and Northern Branch, appearing in both matters, Commissioner, and I am happy to address the issues that have been raised by my friend.

PN10

THE COMMISSIONER: Very well. Thank you, Mr Davis.

PN11

MR HATCHER: If it please the Commission, might I oppose the appearance by Mr Davis in the South Grafton Abattoir certification of agreement matter. The organisation for which Mr Davis appears is not a party to the agreement, and accordingly cannot appear. Were Mr Davis to seek leave to intervene in the matter, he would need to satisfy the requirements of section 43 which, whether one regards it as regrettable or not, provides a mandatory guidance to the Commission on whether intervention is to be allowed. It must grant intervention if the pre-conditions are met, and must not grant intervention if they are not met, and those pre-conditions are not met, in my respectful submission. So we say that on no basis can the union be a party to the proceedings, and if it were to seek leave to intervene, it needs to meet the tests under section 43, which we say it cannot do.

PN12

THE COMMISSIONER: Very well, thank you. Well, Mr Davis, what do you say about that?

PN13

MR DAVIS: Commissioner, on 9 October, the union held a meeting with workers in their lunch break and was instructed in writing to represent them. I have got a copy of that document. That document was provided on that day to Ms Mortimer, who is in the Commission today, and to a Mr Beetson, who is a slaughter floor supervisor, and I propose to hand up a copy of that and give a copy to my friend. Further, Commissioner, on 9 October, in the afternoon of that day, following meeting with Ms Mortimer and Mr Beetson, I wrote to the company, and I tender a copy of that letter as well.

PN14

Commissioner, further to the events of that day, I verbally instructed the company that I wished to meet with them to represent the employees. When I met with them it was in the lunch room with the committee of employees, and I believe that the statutory declaration of Mr Ramsey alludes to that meeting, although I think it doesn't give the date of that meeting. On page 9 of Mr Ramsey's statutory declaration that forms part of the application, Commissioner, it says:

PN15

Thereafter, there were several small meetings -

PN16

this is about half-way down on page 9:

PN17

Thereafter, there were several small meetings with individual employees to further discuss proposals the employees desired. Ms Renee Mortimer and Mr Steve Beetson met with a representative of the Australasian Meat Industry Employees Union, Justin Davis, to discuss any proposals he may have.

PN18

Now, at that meeting I instructed the company that I wished to meet them and discuss the proposed certified agreement representing members of the union, and that I was available that day and other dates by arrangement, and that led to no meetings involving officials of the union despite the request and despite the requirement of the Act. Commissioner, the letter of 9 October also alludes to the fact that I would be visiting the premises the following week to talk to workers, and the solicitors for the company replied to my letter on 11 October, and I tender a copy of that letter.

PN19

Commissioner, I also have a copy - I also have available a copy of the log from my computer which records that that fax was sent, but I think that that is superfluous, given the reply to my letter. The reply to my letter indicates that the company received the letter. It says:

PN20

We refer to your facsimile to our client of the 9th instant -

PN21

etcetera. There was no other letter on the 9th, Commissioner; just the one that I have tendered today. So the company indicates through its lawyers in that regard that they are in receipt of my letter of the 9th, and if the Commission wishes, I am happy to supply a copy of the fax log as well, and I am comfortable showing my friend that as well at the moment, if that's needed. But I would like to just show him just that section, because it also covers other faxes sent around the same time. I don't have a copy for the Commission at this time of that.

PN22

THE COMMISSIONER: Is it contested?

PN23

MR HATCHER: No, Commissioner.

PN24

THE COMMISSIONER: Very well, thank you. I might mark the documents that have been handed up. The first, which is headed Ramsey Group of Companies Certified Agreement Proposal, will be exhibit AMIEU1.

EXHIBIT #AMIEU1 RAMSEY GROUP OF COMPANIES CERTIFIED AGREEMENT PROPOSAL

PN25

THE COMMISSIONER: The second, which is the letter dated 9 October 2001, will be AMIEU2.

EXHIBIT #AMIEU2 LETTER FROM MR DAVIS TO THE COMPANY DATED 09/10/2001

PN26

THE COMMISSIONER: And the third, which is a letter addressed to Mr Davis, the Assistant Secretary of the AMIEU, from Hannigans Lawyers and Solicitors, will be exhibit AMIEU3.

EXHIBIT #AMIEU3 LETTER FROM HANNIGANS LAWYERS AND SOLICITORS TO MR DAVIS DATED 11/10/2001

PN27

MR DAVIS: Accordingly, Commissioner, we seek leave to intervene in the proceedings.

PN28

THE COMMISSIONER: Very well, thank you. Well, Mr Hatcher, what do you have to say in response to all of that?

PN29

MR HATCHER: Can I invite the Commission's attention to section 43(2) of the Act.

PN30

If the matter before the Commission is an application relevantly under division 2 of part 6B ...(reads)... accept as mentioned in paragraph (a) must not grant leave to intervene.

PN31

So the test that must be met is that there must be a request to represent. Now, before I come to 170LK(4), if one has regard to AMIEU1 the one thing it does not say is that the AMIEU was requested to represent any individual. It is a form of petition in which the company is requested to explain its proposal for a certified agreement prior to a vote being taken and (b) to meet with officials of the AMIEU and then, intriguingly, and our elected representatives to discuss the employer's proposed certified agreement. So they don't confer authority on the AMIEU to represent them, they simply ask that the meeting take place. That is as high as the evidence gets, and that's a document that is undated but Mr Davis informs the Commission that it is prior to 9 October because AMIEU2 is said to be predicated upon the existence of that - of AMIEU1.

PN32

We then turn to AMIEU2, which is correspondence to the employer titled Re Notice of Entry. The relevant paragraph, the second paragraph:

PN33

As I advised Ms Mortimer this afternoon, a large number of workers require the employer to explain ...(reads)... these workers also request that the company meet and confer with the union and its elected representatives.

PN34

So even the correspondence doesn't purport to say that employees have asked the union to represent them, only asks that the employer meet with the union. One then is directed by the section to attend upon section 170LK(4). Now, that section puts a time frame around the request. The employer - subsection (1) provides:

PN35

(1) The employer may make the agreement with the valid majority of the persons employed at the time ...(reads)... employer must take reasonable steps to ensure that every such person either has or has ready access to the proposed agreement in writing;

PN36

and then:

PN37

(4) the notice must also state that if any person whose employment will be subject to the agreement ...(reads)... request the organisation to represent the person in meeting and conferring with the employer about the agreement.

PN38

Now, that, Commissioner, gives us the time frame. There must be a document that has been provided to the employees and that the employees have for 14 days that they are going to be asked to vote on. There must be a notice provided to the employees that at that time in relation to that agreement they are entitled to have a union represent them but they must request in writing the union to represent them. And then of course the union is to establish that it has that authority. Now, the case before the Commission is one where there were a number of proposals for agreements that never reached fruition. So much is apparent from the statutory declaration filed.

PN39

I think Mr Davis directed your attention earlier, Commissioner, to paragraph 5.10 of the stat dec on page 9 where the history is recounted. There was a first proposed certified agreement on 2 October, that was withdrawn. The second proposed certified agreement was handed to each worker on 17 October, that was withdrawn. The third and final proposed certified agreement was given to the workers on or about 8 November. So on 8 November the document is provided in accordance with the legislation, and this is apparent from clause 5.6 of the stat dec on page 8 - I'm sorry, 5.8:

PN40

The notice informed the employees that if any person whose employment was subject to ..(reads)... the person in meeting and conferring with the employer about the agreement.

PN41

So that is done, no request has come in. The union doesn't represent any person in relation to the agreement and there is no basis upon which intervention can be granted. It's not a matter upon which my client has - the views of my client are relevant. It's not a matter that is dependent upon a discretion in the Commission, the Act is mandatory. Either the tests are met or they are not met. In my respectful submission they are not met.

PN42

THE COMMISSIONER: Well, Mr Hatcher, while we are talking about tests being met can you tell me is the application in relation to more than one employer?

PN43

MR HATCHER: It is, Commissioner, but a single employer for the purposes of the Act.

PN44

THE COMMISSIONER: In what respect?

PN45

MR HATCHER: Can I take the Commission to section 170LB(2). One hopes we're not going to have more amendments to this legislation and more letters brought out. That subsection provides for the purposes of this part and part 6B of the Act:

PN46

If two or more employers carry on a business project or undertaking as a joint venture or common enterprise, the employers are taken to be one employer.

PN47

And (b):

PN48

If two or more corporations that are related to each other for the purposes of Corporations Law, each carrying on a single business the corporations may be treated as one employer and the single businesses may be treated as one single business.

PN49

Now, my client comes under both (a) and (b) but the evidence before the Commission satisfies (a): that is that there is a single enterprise, the South Grafton Abattoir.

PN50

THE COMMISSIONER: Who is Paul Allen Contracting Services Proprietary Limited?

PN51

MR HATCHER: It's a related company that provides some of the staff at that abattoir.

PN52

THE COMMISSIONER: Well, how are they - you are going to have do more than that, aren't you? How are they - is this an undertaking a joint venture or common enterprise?

PN53

MR HATCHER: Common enterprise, Commissioner.

PN54

THE COMMISSIONER: And what is a common enterprise?

PN55

MR HATCHER: The South Grafton Abattoir.

PN56

THE COMMISSIONER: But what is it? How does it work?

PN57

MR HATCHER: In terms of the division between the companies, Commissioner?

PN58

THE COMMISSIONER: Yes.

PN59

MR HATCHER: Will the Commission bear with me one moment?

PN60

THE COMMISSIONER: Certainly.

PN61

MR HATCHER: Sorry, Commissioner. Ramsey Food Services does the slaughtering in the abattoir. The two packaging companies do, not surprisingly, the packaging in the abattoir, and Paul Allen Contracting Services Proprietary Limited does the - deals with the offal and plant maintenance and the general work around the abattoir.

PN62

THE COMMISSIONER: And is there common shareholding, is there?

PN63

MR HATCHER: Certainly in relation to the food packaging services. There is common shareholding in relation to the first three companies; Paul Allen Contracting Services is a separate corporate group.

PN64

THE COMMISSIONER: And they are a separate corporate group, and what do they do; just provide labour, do they?

PN65

MR HATCHER: Yes, in the abattoir.

PN66

THE COMMISSIONER: Well, are they a labour-hire firm; they just provide labour?

PN67

MR HATCHER: Again, if you will bear with me, Commissioner.

PN68

THE COMMISSIONER: Yes.

PN69

MR HATCHER: That is the case, Commissioner.

PN70

THE COMMISSIONER: How do they undertake a common enterprise? They have - they are not part of the enterprise, are they? I mean, they just supply labour to it on a contract basis.

PN71

MR HATCHER: For the purpose of the conduct of that enterprise. The labour is directed to the common enterprise of the South Grafton Abattoir.

PN72

THE COMMISSIONER: But it requires them to undertake as a common enterprise; that should surely means more than just provide labour to as a labour-hire company. It says:

PN73

...or carry on a business project or undertaking as a joint venture or a common enterprise.

PN74

MR HATCHER: Well, Commissioner, there is a single business, the South Grafton Abattoir. There are two or more employers involved in that single business, the various Ramsey companies, and Paul Allen Contracting Services, and together their common business is the South Grafton Abattoir, the single business.

PN75

THE COMMISSIONER: Is Paul Allen Contracting, does it not provide labour to anybody else?

PN76

MR HATCHER: If you will bear with me. Purely to the South Grafton Abattoir.

PN77

THE COMMISSIONER: But that derives no, it derives no benefit from the operation of the enterprise, does it, other than the fact that it has got a contract to supply labour to it?

PN78

MR HATCHER: Well, that, in itself, is a benefit, Commissioner.

PN79

THE COMMISSIONER: I said other than that benefit.

PN80

MR HATCHER: Yes.

PN81

THE COMMISSIONER: Very well, thank you. I am sorry, Mr Hatcher, had you finished with the LK4 point?

PN82

MR HATCHER: Yes, Commissioner.

PN83

THE COMMISSIONER: Very well, thank you. Mr Davis, what do you say about the LK4 point?

PN84

MR DAVIS: Commissioner, if I could just deal, while we are dealing with that issue of the businesses, I do have some - - -

PN85

THE COMMISSIONER: You can't deal with that until such time as you get in.

PN86

MR DAVIS: Okay. The material before the Commission contains in AMIEU1 an instruction from a group of employees to the company to meet with officials and elected representatives about to discuss the proposed certified agreement. Now, the proposed certified agreement, it is true, went through a number of versions, but nevertheless it was a proposal for a certified agreement. This instruction is not limited to any time when the company may propose a certified agreement. The employees have instructed the union to represent them.

PN87

Otherwise, what does meet with officials of the union and their elected representatives to discuss a proposed certified agreement mean, if it doesn't mean an instruction to represent? I think that is fairly clear. I think it is drawing a long bow to say that this group of workers was doing something else. If they were doing something what were they doing? In our submission, they were instructing the union to represent them. We are a union that has coverage of the meat processing industry abattoirs, etcetera.

PN88

I believe my friend is satisfied to that extent. We do have members at the enterprise and I am happy to satisfy my friend and the Commission of that point. And I think if those two matters are satisfied then I think we have met the requirements of the Act in terms of intervention.

PN89

THE COMMISSIONER: I am sorry, what was your second point; that?

PN90

MR DAVIS: That we have coverage of the work and we have members, and I haven't at this point, provided the Commission proof of membership but I am happy to do so. My friend says it is not an issue, but I have material to supply the Commission if needs be. We have to have at least one member, which we do, and we have to have coverage of the work involved, and we do. And those workers have asked to be represented by the union. I do have some comments in relation to 170LB2, but I will reserve those until the Commission deals with the other matter.

PN91

THE COMMISSIONER: For reasons that will publish in writing in due course, I am satisfied that the AMIEU has been requested to represent members of the union in negotiations or discussions with the employer about the proposed certified agreement and I am satisfied that that request was made consistent with subsection 170LK(4) of the Act and accordingly section 43(2)(a) of the Act compels the Commission to grant leave to intervene to the AMIEU. Mr Davis.

PN92

MR DAVIS: Commissioner, if I could - - -

PN93

THE COMMISSIONER: I should say that I'm asking you to now address the - whatever it was, that - the LB(2)(a) point.

PN94

MR DAVIS: Commissioner, I'm not sure if my friend has satisfied the Commission that 170LB(2)(b) has been met and that is if two or more corporations that are related to each other for the purpose of the Corporations Law each carry on a single business, etcetera. I'm unsure whether Paul Allen Contracting is related for the purposes of the Corporations Law.

PN95

MR HATCHER: Well, let me make it clear, I concede that it's not. We must get in under (a).

PN96

MR DAVIS: Well, Commissioner, in that case, (a) and (b) need to be met for the purposes of 170LB(2). It's LB(2)(a) and (b) that need to be met rather than or one or the other.

PN97

THE COMMISSIONER: Mr Hatcher?

PN98

MR HATCHER: Well, it can't be cumulative, Commissioner. That would make no sense of it.

PN99

THE COMMISSIONER: There are other parts that could be - of this Act that might fall into that - - -

PN100

MR HATCHER: I accept that - - -

PN101

THE COMMISSIONER: - - - broad description.

PN102

MR HATCHER: I accept that, Commissioner. It's certainly not the easiest piece of legislation to deal with and I accept that the Interpretations Act generally says "and" is a cumulative word distinguished from "or" but in my respectful submission, it can't be intended to be cumulative. (b) is a lesser sub-set of (a) and it's - indeed, it's a quite different proposition. In (a), if two or more employers carry on a business project or undertaking so there is a single undertaking being undertaken, in (b), it can be separate businesses because the two or more corporations are carrying on - are each carrying on a single business.

PN103

So one cannot meet (a) and (b); it can't be a cumulative - it can't be interpreted cumulatively. It would just be a meaningless provision so they must be alternatives, in my respectful submission.

PN104

THE COMMISSIONER: Mr Davis?

PN105

MR DAVIS: Commissioner, there are provisions in the Act that allow for multiple business agreements to be made, but that's not what we're dealing with here, and as I understand it.

PN106

MR HATCHER: I accept that.

PN107

MR DAVIS: I come back to the point, Commissioner, that the other side I think needs to satisfy the Commission that these companies are related for the purpose of Corporations Law, and we have simply had submissions from the Bench that they are in relation to their shareholdings, etcetera, but perhaps my friend has evidence of that.

PN108

MR HATCHER: Well, I perhaps didn't make myself very clear, Commissioner. If the Commission finds that 170LB(2) is a cumulative requirement, that is, that we must meet (a) and (b), then the Commission is bound to, as presently constituted, reject the application and forward it to the Full Bench to be dealt with as a multiple employer. My submission is that it is not cumulative. They are alternatives and that we qualify under (a) because the single undertaking that is carried on is the South Grafton Abattoir, and perhaps if I, while I'm on my feet, deal with one matter that the Commission earlier raised with me, that is, a company only employing labour.

PN109

In my respectful submission, that will be the classic situation that this section is designed to cover. The Commission no doubt doesn't have the historical perspective that I suffer from in my dotage, but many years ago, there was a differential taxation rate for payroll tax depending upon the number of employees, and a number of companies proliferated so that where one enterprise would be constituted by ABC Door Opening Company Proprietary Limited, ABC Accounting Company Proprietary Limited, and so forth, each of those companies within the group would simply employ people, the advantage being that the number of employees could be kept below the threshold for payroll tax purposes.

PN110

In more recent times, a similar procedure has been adopted by companies with a view to minimising their workers compensation expense because some occupations carry much higher loadings than other occupations. So if, for instance, one were employing slaughtermen, and the company was an employer of slaughtermen, one would have a significant loading on workers comp, a significant premium on workers comp, whereas if one were simply employing maintenance employees, the workers comp premium would be substantially less, and so there becomes an advantage in companies establishing themselves in a separate way, commercial advantage for workers comp purposes.

PN111

I don't say that that's why one sees this particular arrangement in this case, but I deal with it as a general proposition. The Act is clearly designed to ensure that where there is effectively a single employer with a single operation, where all employees are engaged in the common enterprise, that there can be one industrial instrument without the necessity to go to - to the Full Bench and in my respectful submission, what one sees in this application is not unusual but rather is more likely to be the common experience.

PN112

THE COMMISSIONER: Well, what I'm going to do is reserve any decision on this particular debate and proceed to hear the substantive applications - I'm sorry, I withdraw that - the substantive application that goes to the certification of the agreement I've still got to deal with whether or not there's an XF application properly before me. But this matter will be dealt with obviously in a preliminary way provided both of you at this time are satisfied that anything you want to say about section 170LB(2)(a) and/or (b) has been said. Are you both of that view?

PN113

MR DAVIS: Commissioner, I'm unsure whether the Commission has enough material before it to make a judgment about whether these businesses are related for the purpose of corporations law and - - -

PN114

THE COMMISSIONER: So that - - -

PN115

MR DAVIS: I've said all I need to say there, Commissioner.

PN116

THE COMMISSIONER: Yes. So it comes down to a simple point that if that fact is conceded, then if you're right in relation to the requirement being cumulative, then the matter will have to be referred to a Full Bench. If I adopt the view that Mr Hatcher urges me to adopt, then it won't, and I will then go on in any decision and deal with the substantive application to certify the agreement.

PN117

MR DAVIS: If the first case is true, Commissioner, then it may be pointless proceeding with the certification hearing at this point in time, but that's all I need to say on that.

PN118

THE COMMISSIONER: Mr Hatcher, do you have any view on that?

PN119

MR HATCHER: Commissioner, if the union says that it has instructions from these employees to seek an adjournment so be it. But so far as my client is concerned - - -

PN120

MR DAVIS: That's not what I said.

PN121

MR HATCHER: - - - this agreement represents an additional impost to it of some $40,000 per week. It is here in good faith with the employees who voted the agreement up. It presently has in place Australian Workplace Agreements that continue to regulate the employment and will continue in the event that this matter doesn't proceed. It's only in the interests of the employees and in good faith with the employees that my client is here urging certification of the agreement.

PN122

THE COMMISSIONER: Well, it's a matter for yourself. I mean my view is that given that we are here, I'd rather take the submissions in relation to the substantive applications potentially rather than have your all here for 40 minutes, deal with a little preliminary point, go back consider it, call you all back. I think there's more efficient ways we - I get everything you want to put and it if does fall over on the preliminary point then it may be much of that material can simply be through the transcript and the case file provided to the Full Bench in any event.

PN123

MR HATCHER: Commissioner, I think the reason I rise is to alert the Commission to the fact if my earlier submissions on intervention weren't sufficiently clear, my client's perception is that no employee asks the AMIEU to be here today. And the Commission ought not put itself in a position where it becomes the instrument of the AMIEU in opposing or postponing the benefits of the agreement to the employees. If the union wishes it that the agreement not proceed it ought clearly take responsibility for that position and not invite the Commission to take steps of its own volition if it pleases.

PN124

THE COMMISSIONER: Well, what I intend to do is to proceed to hear submissions in relation to the substantive applications. There is still the preliminary point that needs to be dealt with and that's the application for determination of a designated award pursuant to section 170XF. As I understand the case against you, Mr Davis, it is that you don't have the capacity - or at least not you - but the union doesn't have the capacity to make the application and I've not heard you on that.

PN125

MR DAVIS: Commissioner, I have filed the application for these reasons. The document is unclear when it comes to rates of pay in relation to the no disadvantage test. It refers to the Butchers Wholesale Newcastle and Northern Consolidated Award but my understanding is that the employer is a member of the National Meat Association and, if they are not, then there is the question of whether the Federal Award is the correct Award as opposed to the State Award which is Wholesale Newcastle and Northern Award. Because this matter is in the Federal Commission it ought perhaps be the Federal Award, that is, the Award used for the no disadvantage test.

PN126

Given that there is a Federal Meat Industry Processing Award, and the company is presently operating in the Federal system by way of the AWA's, then its perhaps the Federal Award that ought to be used for the purposes of the no disadvantage test.

PN127

THE COMMISSIONER: The first part of your argument, it appears, as I understand the submission it was that the relevant employers are members of the National Meat Association and, therefore, are respondent to the Federal Meat Industry Processing Award 1996; and, if that were so, there would be no requirement - sorry, end of your submission. If that were so, there would be no requirement for an XF determination because you would be arguing that there is a relevant Award. XF determination only requires such a determination in the event that there is no relevant award. If you're correct on what you put, there is a relevant award and that award should be used for the no disadvantage test.

PN128

MR DAVIS: Yes, Commissioner, but there are additional problems in relation to the document that I wish to deal with, but perhaps that's dealt with best in the certification proceedings.

PN129

THE COMMISSIONER: That's correct. It's a matter of whether or not there's properly before the Commission an application pursuant to Section 170XF. Now, on your own submission, which award should apply for the no disadvantage test can be dealt with in the - well, perhaps I'll hear what you've got to say, Mr Davis, about - we've heard your submission that the employers are members of NMA and, therefore, are bound by the terms of the federal award. If that be so, then that obviously is the award that must be used for the no disadvantage test.

PN130

MR DAVIS: Well, further, Commissioner, I don't believe that an application for a certified agreement in the federal system is able to use a state award for the no disadvantage test where there is a federal award in place covering the work.

PN131

THE COMMISSIONER: Well, that's so. If there's a federal award that applies to an employer, then that is the award which must be utilised for the no disadvantage test. Now, Mr Hatcher, do you have any submissions to make on - - -

PN132

MR HATCHER: Just, Commissioner, I accept what the Commission has said. If there is a Federal award that applies to the employer, that will be the relevant award. The Act makes that clear; if the federal award doesn't apply and the state award applies, then the state award will be the relevant award. The state awards are caught by the definition of award.

PN133

THE COMMISSIONER: Yes.

PN134

MR HATCHER: If neither a state award nor a federal award applies, then application should be made by a party to the proposed agreement - must be made by a party to the proposed agreement to the Commission to determine or designate an award. It's relatively straight forward, in my respectful submission. In this case, the AMIEU is not a party to a proposed agreement, so it has no standing to bring an application, nor does it suggest that there is no relevant award, so there can be no application before the Commission for the purposes of 170XF.

PN135

THE COMMISSIONER: And do you say that you are bound by the New South Wales award, do you?

PN136

MR HATCHER: Yes, it's a common rule award, Commissioner, so it applies to my client. My client is not a member of any federal organisation which is bound by the federal award nor is it a party in its own right to the dispute which led to the making of the award, or nominated as a respondent to the award. In those circumstances, the common rule award - state award applies.

PN137

THE COMMISSIONER: Very well, thank you. Well, I'm satisfied - were there any other points in relation to XF? That was - - -

PN138

MR DAVIS: That's it, Commissioner.

PN139

THE COMMISSIONER: Well, I'm satisfied that there is not properly before the Commission, an application pursuant to Section 170XF and the Commission, therefore, lacks the jurisdiction to deal with the application that's been made. On the submissions of both the parties, either there is a state award that applies and binds the parties and covers the work undertaken by the employees, and that's an award of the New South Wales Commission and is designated by the Act as a state award and can be used for the purposes - and shall be used for the purposes of the no disadvantage test in the event that an application is made to have any agreement made between the employee and the employer certified in this Commission.

PN140

In the event that Mr Davis is right, and there is a federal award that regulates the wages and conditions of the employees concerned, then the federal award must be used for the purposes of the no disadvantage test. So on either submission, there isn't a requirement for an XF determination and therefore there's no need to deal with that application. So that leaves us with the application to certify the agreement. Mr Hatcher.

PN141

MR HATCHER: Yes, if it please the Commission, can I immediately take the Commission to the rather unusual form of the agreement and the Commission - might I take it that the Commission has had the opportunity to review the statutory declaration?

PN142

THE COMMISSIONER: Yes, I have.

PN143

MR HATCHER: Yes. So the Commission understands from the history that there was a desire to adopt a minimalist approach to change to an instrument that was well known and understood at the workplace, the standard form Australian Workplace Agreement which had regulated the employees employment and to that end, the approach adopted was to take that agreement and then simply agree on the changes that would be made to that agreement. I can inform the Commission that the agreement itself has its origins in the New South Wales or the Butchers Wholesale Newcastle and Northern Consolidated Award.

PN144

It was found in the AWA proceedings not to meet the no disadvantage test under legislation as it then stood but was nonetheless certified because of public interest considerations. The reasons why it failed to meet the no disadvantage test largely amount to a state wage case having taken place since the agreement was arrived at so that the award against which it was tested had higher rates but only by the most recent state wage case, and - so this agreement attempts to overcome that difficulty by the formula of simply adopting the rates as they occur from time to time in the state award, and the Commission sees that from clause 7 of the agreement and clause 9 of the agreement.

PN145

If it please the Commission, the only other substantive changes that would affect employees entitlements for the purpose of the no disadvantage test relate to sick leave and the question of double overs on tally. Can I deal with those in turn? As to sick leave, I'm instructed that in the negotiations, there was an acknowledgment by employees that attendance at the abattoir was a difficulty and that no amount of checking doctors certificates and so forth seemed to have the effect of reducing sick leave and so it was agreed to use what might be characterised as a carrot and stick approach, reducing sick leave generally from 10 days to eight days which might be said to represent a disadvantage from the award position but to compensate for that by adding the two days back to any employee who didn't take sick leave during the year.

PN146

So an employee who doesn't take sick leave still has the benefit of the 10 days which can be taken as time off, and the attendance bonus of $25 per week. That's an additional $1300 per annum. That deals with sick leave. As to the question of double overs, under the New South Wales award there is tally and this enterprise works on tally. The Commission would be aware that in the federal award, tally has been removed, but in the tally area, there is a practice of if a certain number of beasts over tally are slaughtered, there's a premium rate for the employees doing the work, notwithstanding that it's still within their ordinary hours and they get time and a half for the first number and then it goes to double.

PN147

Now the practice my clients adopted as - because double was too expensive as it perceives the situation to make the meat marketable, it simply doesn't allow the employees to go beyond the time and a half premium over tally. The employees would prefer to be in the situation where they're making more money and so they've asked for the opportunity to continue doing overs at the time and a half rate, and my client has acceded to that. My client makes it clear it would be content to maintain the current position, that is, it simply doesn't make available sufficient beasts for slaughter to put employees in a position where they would get tally.

PN148

So there is an advantage to employees in the change from double to time and a half for that level of overs in that it makes available more earnings to the employees. They are, essentially, Commissioner, the substantive changes from the Butchers Wholesale Award effected by this agreement. I might just make one thing clear because it was a matter that caught my eye and may trouble the Commission. In the Butchers Wholesale Award the minimum tally provided by - or the minimum beasts to attract tally provided by Clause 13, Tally Slaughtering, is 19 beasts for the form of enterprise that my client operates, but there is then a premium for certain mechanical aids and that is to be found in sub-clause 6 of the Clause.

PN149

The premium, relevantly for my client's operations, Commissioner, is for a hide puller .5 head for - I'm sorry, I will withdraw that - for a downward hide puller three units of production or head of cattle; for an aitch bone cutter .25; for a buster splitting saw .35 head; for a hock cutter .25 head; for a brisket saw .25 head, which yields a minimum beasts for tally of 23.1 head which is the only figure which appears in the existing AWA which becomes incorporated into the new agreement. It's not a change. I just explain that to make it clear that that was not a concern on the no disadvantage test previously. If it please the Commission on that basis we invite the Commission to find that this agreement passes the no disadvantage test, and, accordingly, to certify the agreement.

PN150

THE COMMISSIONER: Mr Hatcher, the no disadvantage test on the last occasion was applied by the employment advocate was it?

PN151

MR HATCHER: No, Commissioner, the employment advocate wasn't satisfied and referred the matter to the Commission and his Honour, Deputy President Duncan, as he then was, determined that the matter didn't - the award didn't meet - I'm sorry, the agreement didn't meet the no disadvantage test, but because it was a start up - the abattoir had been closed for some time and my client was proposing to re-open a country abattoir which was a fairly unusual thing in those days - perhaps still is - and that the benefit to the community warranted the agreement being certified in any event.

PN152

THE COMMISSIONER: Very well. Thank you. You don't have a print number of his Honour's decision, do you, or?

PN153

MR HATCHER: I think, Commissioner, it caught by the AWA provision so that no decision could be published.

PN154

THE COMMISSIONER: Oh, I see, of course.

PN155

MR DAVIS: Excuse me, Commissioner, if I could help, there was a decision published. I don't have a copy with me today but - - -

PN156

THE COMMISSIONER: There will be a print.

PN157

MR DAVIS: There is a print.

PN158

THE COMMISSIONER: Very well. I will find it. Thank you. Thank you, Mr Hatcher. Mr Davis.

PN159

MR DAVIS: Commissioner, there's some threshold issues that I wish to deal with in relation to the application. The first is that - - -

PN160

MR HATCHER: I wonder, Commissioner, if I could trouble the Commission for this assistance. Is the union opposing certification of this agreement?

PN161

THE COMMISSIONER: Mr Davis.

PN162

MR DAVIS: Commissioner, what we say is that the Commission at this point doesn't have in front of it an application that meets the needs of the Act. We would like to see an application that meets the needs of the Act and our view is that eventually a document ought to be certified by the Commission. We are not opposing that the Commission eventually make a certified agreement between the parties and it may be in similar terms to the one that's before the Commission, the document that's before the Commission, but there are a number of problems in relation to the employer's application and I wish to put those before the Commission because I think there are parts of the Act that aren't satisfied by the application and those aren't small matters, Commissioner.

PN163

THE COMMISSIONER: Does that answer your question?

PN164

MR HATCHER: Well, my friend ought be under no misapprehension. There is only one agreement. The task of the Commission today is to either certify that agreement or not certify that agreement. If my friend says - - -

PN165

THE COMMISSIONER: Or to give you a chance to make it, put it in a position that it is certifiable.

PN166

MR HATCHER: Well, if it involves a change to the agreement it can't be put into that position but there must be another agreement, so there is - either this agreement will be certified or it will not be certified. My friend ought be aware of what it is he is doing. There is an agreement. He either asks that the Commission certify it or he asks the Commission to reject its certification. He can't ask the Commission to amend it. The Commission can't do that.

PN167

THE COMMISSIONER: The Commission doesn't have the power to, on it becoming satisfied pursuant to Section 170LT or LU, that there are grounds to refuse to certify do anything other than then allow the parties the opportunity to allow your client the opportunity to make the agreement certifiable, I think is the language of the Act. See, before the Commission can refuse to certify an agreement, the Commission must - I'm sorry, this is Section 170LV(b):

PN168

Before refusing to certify the agreement, the Commission must give the person who made the ...(reads)... to make the agreement certifiable.

PN169

MR HATCHER: Yes.

PN170

THE COMMISSIONER: So there's an interim step before refusal in any event and that's what I was referring to, but it seems that what Mr Davis is saying is there may be some - I don't quite know how to describe these and given that I don't know what you're about to tell me, Mr Davis, it's a bit hard to - but there may be things that need - - -

PN171

MR DAVIS: Some deficiencies in the application, Commissioner.

PN172

THE COMMISSIONER: Yes. There is one that troubles me for instance, Mr Hatcher, and it's one that I have to draw to your attention in any event, and that is that you've already referred to the unusual form in which the agreement comes forward. The Commission is not likely to get too excited about unusual forms of agreement, but it doesn't identify who is bound by this agreement; particularly it doesn't identify the employers that would be bound by the agreement. There is nowhere in the agreement which identifies the relevant employer or employers who are bound. If you go to the first paragraph of - - -

PN173

MR HATCHER: Yes, it refers to a schedule; first schedule and second - - -

PN174

THE COMMISSIONER: Yes, it refers to a schedule but the schedule is blank.

PN175

MR HATCHER: Yes.

PN176

THE COMMISSIONER: And so it's those sort of issues that was troubling me and that's why I was interested to hear what Mr Davis had to say about it.

PN177

MR DAVIS: There are a number of matters that we believe are deficiencies in the application. That was one of the matters we wished to raise. The other matter is that there is no signed copy of an agreement before the Commission, as I understand it, unless there's documents that I haven't seen. But the document that I have provides room for signature of the employer and the employee. Now, I'm unsure whether the Commission has copies signed by the employees involved, but I think that that's a minimum requirement of certification. That's one deficiency.

PN178

THE COMMISSIONER: You say it is?

PN179

MR DAVIS: Yes. The employees - there is no evidence that this is the document that was voted upon, Commissioner, and I think the Commission needs to be satisfied that that's correct. There are no - - -

PN180

THE COMMISSIONER: But there is evidence, isn't there? Isn't the evidence - - -

PN181

MR DAVIS: There's evidence of a ballot, but to my knowledge there are no signatures on documents unless my friend has those to supply.

PN182

THE COMMISSIONER: Well, let me ask you this question then. In an LK agreement, who is it you say must sign it?

PN183

MR DAVIS: The parties, Commissioner.

PN184

THE COMMISSIONER: Every one of them? So, for instance, if such an agreement was made with Suncorp, we would need a document with three and a half thousand signatures. I don't know if that's how many people Suncorp employ but - or if BHP Group of companies, carrying on a number of projects - you say that - - -

PN185

MR DAVIS: No, Commissioner, I don't say that. There are provisions in the Act that allow for an employee to sign a statutory declaration stating that they are acting on behalf of a group of employees and provide that. I don't believe that's been done in this situation, and I think that's a requirement.

PN186

THE COMMISSIONER: But nevertheless it's your submission that in these circumstances, it's a requirement that the agreement be signed by each of the employees who are said to be covered by its terms. Is that the submission?

PN187

MR DAVIS: Not necessarily, Commissioner, but it certainly needs to be signed by the employer.

PN188

THE COMMISSIONER: Well, the document I have is signed by the employer. I'm happy to hand a copy down to you. Well, it is signed by one - it has one signature on it under that part of the agreement. It says:

PN189

Signed for and on behalf of the employer.

PN190

Given that there are four employers, I'm happy to hear about what all that means.

PN191

MR DAVIS: I see, Commissioner, that that's signed by Mr Ramsey.

PN192

THE COMMISSIONER: Who may well have authority to sign, it appears, for three of the employers. That's an assumption.

PN193

MR DAVIS: A requirement of the application is a statutory declaration is required in respect of each employer as well. I have a statutory declaration from Mr Ramsey but I don't have one in relation to the other employers.

PN194

THE COMMISSIONER: Do you say that arises from the Commission's rules, do you?

PN195

MR DAVIS: Well, the form itself - the form R30, rule 49, the document that the Commission has in the application, the second paragraph says:

PN196

A statutory declaration is required in respect of each employer.

PN197

Furthermore, Commissioner, we take issue with some of the material in the statutory declaration. Part 4 is the involvement of employees in employer organisations:

PN198

Was the agreement negotiated with an employee acting on his or her own behalf or on behalf of the employees?

PN199

And the answer to that question is "Yes." Then it goes on to give some details but I'm unsure who the employee is acting on behalf of the other employees. It talks about some meetings occurring involving some workers and some management people. Then 4.2 says:

PN200

Has an organisation of employees notified the employer in writing that it wants to be bound by the agreement?

PN201

And the answer is "No." However, the union sought to represent employees and meet with the employer and that wasn't done; in fact, it was refused. At point 5.9 of the application:

PN202

If an organisation was so requested to represent such a person, did the employee give ...(reads)... before it was made.

PN203

And the answer to that question is:

PN204

The employer is unaware of any request. The employer did not receive any request from any organisation.

PN205

Well, that's patently untrue, Commissioner, and I think the Commission granting intervention did so on the basis of the material provided this morning, AMIEU 1, 2 and 3 documents which clearly show a request to meet and yet the employer says in its application, "The employer is unaware of any request. The employer did not receive any request from any organisation." Well, not only did they receive it but their solicitors replied to it. Not only did they receive that letter from me but they received signatures that are set out in AMIEU 1 which requests meetings.

PN206

We say, as well, that the document wasn't explained to employees at all. There were meetings involving the document and representatives of the workers, and there were meetings where Mr Ramsey talked about the document, but there was no effort to explain the terms of the document in full and it is, in our submission, insufficient or inadequate to say that if an employee desires the terms of the agreement to be explained to them please contact people within management. I mean, there is a positive requirement on the company to explain its terms.

PN207

The employer must say in response to that, well, it's based on an AWA that is already in place, and the employees are aware of that. I think that's a matter that the Commission needs to be satisfied about. There are requirements that the AWAs be explained to people as well. Now I'm not sure whether those requirements have been met in relation to recent employees or not, and that may go part way to dealing with explaining the document, but the document itself as a proposed certified agreement needs to be explained to workers. That's a requirement of the Act. These aren't small matters, Commissioner; these are requirements of the certification. The company has refused to meet with the Union acting on behalf of its members, and that again is a requirement of certification.

PN208

Commissioner, I haven't dealt with the issue of the no disadvantage test and I reserve my comments in relation to that, but I don't believe that the document in front of you for those and reasons advanced earlier in relation to the relationship between the companies, is a document that you can certify today and I would ask you not to proceed on the basis of the - - -

PN209

THE COMMISSIONER: Mr Davis, I have already made a ruling on that point, and said that I am going to proceed. I may not proceed, and have indicated that I will not proceed to the extent of deciding whether or not to certify the agreement, or even whether there is a proper application before the Commission, and whether or not a fresh application should be made pursuant to the relevant section of the Act that is an application to a Full Bench for certification of a multi-employer bid agreement.

PN210

But in relation to the application for certification, I thought I was reasonably clear that I wanted to hear anything any one had wanted to put on that today. So if you do have submissions that go to whether or not this agreement meets the no disadvantage test, then you need to put them.

PN211

MR DAVIS: Well, Commissioner, I object to that course of action, because I am not sure the Commission has jurisdiction to deal with the matter on the basis that in the first case it may be a multiple business agreement to start with, and in the second case there are parts of the - - -

PN212

THE COMMISSIONER: If it is I won't deal with those submissions. If it is a multiple business agreement then the Act is clear the Commission, on deciding that it is such an agreement, simply lacks the jurisdiction to proceed any further, and would have to give a decision to that effect, and those who want the agreement certified would have to make an appropriate application to a Full Bench.

PN213

MR DAVIS: Commissioner, I think to proceed at this point is putting the cart before the horse. It is assuming jurisdiction that we say the Commission may not have, and it is something that we ask the Commission to decide prior to moving on to a full hearing on the no disadvantage test. I have got substantial submissions to put on that issue, but not today, because I am not in a position to put those submissions because I don't believe the Commission has got the jurisdiction to proceed, and would ask the Commission not to do so.

PN214

I am quite comfortable putting submissions at a later time in relation to no disadvantage test, but they need to be detailed submissions, but those submissions need to be done with an application that is in our view correctly put before the Commission. And if the employees have requested the union to meet and confer with the company and the company has ignored that request, then I would think that the Commission ought to refer the matter back to the parties for discussion, and that is what I would ask the Commission to do.

PN215

THE COMMISSIONER: Well, there is no doubt about that, Mr Davis, that in the event that the Commission is not satisfied that the statute has been met, then the Commission will refrain from certifying the agreement, and what course the Commission takes after that I can't say. But nevertheless the matter was listed for hearing today and it is within the power of the Commission to hear both the preliminary point as to jurisdiction, to hear the submissions that you have already put, that is that the agreement has, or it does not meet certain requirements of the Act, and to hear the submissions you wish to make in relation to the no disadvantage test.

PN216

To the extent that you now say, well, this is as much as I want to say and I have other material to put at a later time, I have made it clear that that is not the course I intend to adopt, and there is nothing to compel me to adopt that course. It is a common practice of the Commission, even when jurisdiction is questioned, Full Benches do it almost as a matter of routine, where all the material is put, both whether or not there it is in the public interest to grant leave to appeal and to hear the appeal at the same time, and in the event that a decision is made that it is not in the public interest to grant leave, then the Bench does not deal with the substantive appeal. And I am adopting a similar approach here; I am happy to - in fact I want all the material to be put.

PN217

There was at no time - and I am happy for you to correct me if I am wrong, Mr Davis - any contact made with my associate to advise that you had certain submissions to put, but in relation to the no disadvantage test you were going to - you were putting the employer and the Commission on advance notice that you wanted any submissions in relation to that matter deferred to some other day.

PN218

MR DAVIS: Commissioner, I did contact your associate and allude to the fact that I felt there were substantial problems with the application itself. I didn't, you are right, go on to say that the other matters are matters I wish to put at another day, but I believe that in terms of jurisdiction, if this were, for example, a multiple business agreement that is before you, then the rest of what happens today is irrelevant, and I ask that the Commission determine that matter first because there are issues going to the no disadvantage test that we are unable to address today.

PN219

THE COMMISSIONER: But why?

PN220

MR DAVIS: I am unaware whether any of those companies, for example, are members of the National Meat Association.

PN221

THE COMMISSIONER: You have already told me they were.

PN222

MR DAVIS: I beg your pardon, Commissioner.

PN223

THE COMMISSIONER: You have already told me they are.

PN224

MR DAVIS: I said I believed that they were, but I am unsure.

PN225

THE COMMISSIONER: I see.

PN226

MR DAVIS: I don't have evidence one way or the other, Commissioner, and that has some bearing on what I wish to put. I only received the application proper yesterday, and it was only at that time that I knew, for example, that Paul Allen Contracting was a company that was part of the application. I had never prior heard of the company.

PN227

THE COMMISSIONER: You only received the application.

PN228

MR DAVIS: Yesterday.

PN229

THE COMMISSIONER: Which application?

PN230

MR DAVIS: The employer's application.

PN231

THE COMMISSIONER: But you nevertheless had the agreement.

PN232

MR DAVIS: A copy of the agreement and the copy I have has no employers listed and no employees listed.

PN233

THE COMMISSIONER: I accept that. But nevertheless the contents of the agreement you have had, and you had the material to apply the no disadvantage test to see whether or not the agreement met or otherwise the no disadvantage test.

PN234

MR DAVIS: No, Commissioner, because I am unaware at this point whether all of those companies or some of those companies or any of them are members of the National Meat Association. I am unaware at this point whether, for example, Paul Allen Contracting, or any of those other companies are subject to an industrial dispute which would bring them within the jurisdiction of the Federal Meat Industry Processing Award, and mean that that award was the award for the purpose of the no disadvantage test. I have had insufficient time to deal with those matters because I received a faxed copy of the application yesterday.

PN235

THE COMMISSIONER: Mr Hatcher?

PN236

MR HATCHER: Commissioner, this borders on the bizarre, with the greatest of respect. Mr Davis says to this Commission that in October of this year he was authorised, indeed asked by his members to represent them in negotiations - I am sorry, that is October last year. He says that he had one meeting and there was a second meeting cancelled, but he did nothing since. The Act required, and my client did, when it had an agreement that it was going to put to the vote, issue a notice advising employees that they had a right to be represented by our union in negotiations. Not one asked on the receipt of that notice that they be represented by the union.

PN237

Mr Davis informs the Commission that not one of them said anything to him about this application. He says he was going to represent these employees in negotiations, but he didn't even find out whether this enterprise was covered by the Federal Award or not. He didn't even find out who was involved in the enterprise. Not a difficult task when you're representing a member. You say to the member, "What name appears on your pay-roll chit, what name appears on your group certificate", but he says to this Commission, "This agreement I've concerns about but I don't know what those concerns are because I haven't looked at it yet, and I don't tell you that I'm here representing one employee, five employees, 10 employees. I don't tell you whether I'm here for the 59 who voted it down or whether the only ones that I have as members specifically didn't want me here because they voted it up; they want this agreement".

PN238

He can't tell the Commission any of that, but he invites the Commission to simply not deal with an application by a group of employees and the employer for an agreement. In my respectful submission, that is why the operation of section 170LK in conjunction with 43 is in accordance with the submissions I earlier put, and I don't canvass your ruling, but it cannot be the situation contemplated by this legislation that a union can come along and do what Mr Davis purports to do today, which is to say, "None of my members have told me anything about this agreement but I'm here to object", and that's the substance of his submission.

PN239

In my respectful submission, the Commission is quite entitled to conduct its procedures in accordance with what it sees to be most practical. The Commission has made its position quite clear on that from the outset of these proceedings. It ought not countenance this, with the greatest of respect to Mr Davis, nonsense from the organisation, particularly so in a case where he cannot point to any real interest in the proceedings. It is simply frustrating the agreement between my clients and their employees.

PN240

While I'm on my feet, Commissioner, can I indicate that I can see there is a difficulty with the statutory declaration and the signing by and on behalf of the employers. I'm instructed to undertake to the Commission to provide statutory declarations under company seal for each of the four companies and to provide a copy of the agreement executed by each of the four companies under company seal. If it please.

PN241

THE COMMISSIONER: Mr Hatcher, there's - and I'll come back to the other issue, Mr Davis, but there's an issue that now arises - well, can I ask you, do you intend to do anything about the fact that the agreement doesn't identify even the employer or the employers that are bound by its terms?

PN242

MR HATCHER: Yes, Commissioner, that's what I was intending when I said a copy executed under company seal for all four copies would be provided. That would - - -

PN243

THE COMMISSIONER: So that the agreement would be amended to - the agreement will be changed to identify the four employers in the appropriate schedule; is that what is being proposed?

PN244

MR HATCHER: Well, I don't make the concession, if it be a concession, Commissioner, that the agreement will be changed, but I do say that a copy will be filed with the - that is, duly executed by the four employer parties.

PN245

THE COMMISSIONER: Yes. See, because there is a recent decision of Deputy President Ives of the Commission that says that such a change, and I think he might refer to a comma or a full stop, I can't be sure which from memory, to an LK agreement means that LK(8) must be complied with and the whole process must recommence.

PN246

MR HATCHER: That's why I didn't make the concession that it is a change.

PN247

THE COMMISSIONER: Well, he goes - I understand what you're saying and I'm not - but he does say that even if it's clearly a typographical error, in this case perhaps an inadvertent omission, that the process must recommence. All I want to do is (a) make you aware of what I understand to be the Deputy President's decision and (b), invite you to make any submissions you might want to make about that, and as I understand your submission, your submission is that we're not changing the agreement in any way that would be captured by section 170LK(8), is it? I had better make sure I've got the right - - -

PN248

MR HATCHER: Yes, it is 8.

PN249

THE COMMISSIONER: LK(8) yes.

PN250

MR HATCHER: And we simply say that this is not a variation of the agreement.

PN251

THE COMMISSIONER: Very well, thank you. Mr Davis?

PN252

MR DAVIS: Commissioner, the notice to employees that attaches the proposed certified agreement says "Notice to employees of the South Grafton Abattoir". There is room on the document for identifying who the employer is but there is no employer identified. I should say I - after receiving the document yesterday being the application and the statutory declaration, there was another company that I wasn't aware of as well which was Ramsey Food Packaging Number 2 Proprietary Limited.

PN253

There was a Ramsey Food Packaging Proprietary Limited I was previously aware of, but the Number 2 Proprietary Limited company is one that is new to me. These are obstacles that we faced that would easily have been overcome by following a simple procedure which would be a notice to employees of Ramsey Food Packaging Proprietary Limited and Ramsey Food Packaging Proprietary Limited Number 2, or Number 2 Proprietary Limited, and Paul Allan Contracting Proprietary Limited being on the notice itself when employees came to vote, and it's not simply a matter of saying, well, workers know who their employer is.

PN254

In the case of this establishment their employer has changed a number of times for some workers. Some workers it has stayed the same, but some workers it has - the company name has changed and workers in many cases aren't aware of the actual company name of their employer and as a result, the union is put at a disadvantage in relation to this matter. In our view, we are unable to proceed to give you meaningful submission on the matter because I don't know whether any of these companies are members of National Meat, whether they are subject to industrial dispute at this time or not or previously, and those are issues that go to the heart of whether it passes the no disadvantage test.

PN255

And those are issues that I seek to clarify first, but I think they could have easily been dealt with by the company putting clearly on the document what it was workers were voting on. And I make the observation that the document itself in many ways isn't an actual agreement, it is an amendment to an AWA attached to the back. There are no rates of pay in this document. There are rates of pay at the back, but they are rates of pay that no longer apply, or aren't the rates that the workers voted upon.

PN256

This document was a document that apparently workers accepted by vote and contains no rates of pay. It contains reference to a State Award which has rates of pay. I don't believe those rates of pay were supplied to the employees, and I think that goes to the heart of whether the document itself was ever explained to them, because I don't think it was. We say it wasn't. Those aren't small matters, Commissioner. The union requested to be represented despite what my friend keeps saying. The company had before it a very clear request to meet and confer with the union, and it ignored that request. Those are matters that the Commission needs to be satisfied about process.

PN257

The company simply can't, in our view, come in here, having ignored basic requirements of the Act about certification, and ask you to proceed. In our view, these things are matters that ought to be dealt with at the very start because they can be clarified; who were the employers here; what are the rates of pay, etcetera.

PN258

THE COMMISSIONER: But Mr Davis, the issue here is that, to the extent that you say certain things haven't occurred, there is a statutory declaration. Now, again, it has always been within your right, because any application and any file of the Commission's is a public document, to ask to see the statutory declaration that must be filed according to the Commission's rules, and in the event that you thought there were things in the statutory declaration which were wrong, to require the deponent - in this case, Mr Ramsey - for cross-examination. And again, that wasn't done. You can test it from the bar table, but you have every right, in the event that you were granted leave to intervene, to introduce your own evidence and/or to cross-examine the employer on the evidence that has been put in.

PN259

MR DAVIS: Well, Commissioner, I think I have satisfied the Commission that there was a request for representation on behalf of employers, and I make the submission that there was no meeting to confer, there was no conferring between the parties as requested by those workers.

PN260

THE COMMISSIONER: Well, I am not - yes, I understand what you are saying.

PN261

MR DAVIS: I honestly can't see how the Commission can proceed when basic principles in the Act that are supposed to be at the start of the process are not complied with, they are requirements of the Act.

PN262

THE COMMISSIONER: Yes, but to the extent that there is evidence - perhaps I best not say anything further. I understand what you say. You have nothing you want to put at this stage on the no disadvantage test, because you want me to grant you an adjournment and determine these other matters before I hear submissions on the no disadvantage test.

PN263

MR DAVIS: I would put it in these terms, Commissioner: that the Commission ought be satisfied that it has an appropriately designed application before it for a certified agreement that the Commission as it is presently constituted can make before proceeding to hear submissions on issues such as the no disadvantage test. These are some matters that I put before the Commission today that are at the start of the process, that are designed to ensure that workers are, firstly, represented, and secondly, that they get a full explanation of the document.

PN264

Those matters are matters that I think the Commission ought to be satisfied in the first instance about. Those are matters that the Commission has a statutory declaration about which I have shown today to be not correct. Those are matters I think the Commission ought to be satisfied are true before proceeding to hear any matter in relation to the no disadvantage test, let alone the issue of the multiple business scenario.

PN265

And those are matters that are in the hands of the employers, to make correct applications to the Commission for the Commission to hear, and we will address them when they do. We just don't - we say you just don't have such an application in front of you today. You have an application in front of you which has a list of deficiencies. Some of those deficiencies my friend has conceded. I don't think the Commission ought to proceed. I mean, the document in front of the Commission has those deficiencies of that kind.

PN266

Number 1, the Commission has constituted now, may lack jurisdiction because it ought to be a Full Bench matter, and I will put submissions to the Full Bench in relation to the no disadvantage test if required to do so. And number 2, there are matters at the start of the process that we say haven't been complied with, despite what the statutory declaration says. And we have shown the Commission today that that statutory declaration is incorrect. It was prepared with the assistance of Mr Hannigan, the solicitor for the company, and Mr Hannigan himself was aware that there was a request to represent.

PN267

And my friend has said that the document that is before the Commission now has gone through some changes. He tried to say at the start of the proceedings that to ensure the union wasn't given right to intervene that this was a discrete agreement being made, and those earlier ones were, again, discrete other agreements. Transcript will show at the start of the proceedings that that is what was being put. You can't have it both ways. These workers have asked to be represented and they deserve to be represented appropriately, and when the procedures that are required by the Act are complied with, and the Commission has an appropriate application in front of it, we are quite happy to address the issues of the no disadvantage test.

PN268

But we believe those matters ought to be attended to first, and that is why we wrote to the company. We told them verbally, but we wrote to them as well. And they replied to that letter. And they were quite aware of it. They were hand-delivered, those listed employees' names who asked to be represented by the union. They refused to deal with it. Not only that, some of the workers requested in the meetings themselves that the union officials be involved and that was refused.

PN269

Those are matters that are to be dealt with prior to anything coming before the Commission. I ask the Commission not to proceed until it has before it a correct application and correctly framed application. And for the record, we do wish to become a party to an application for a certified agreement applying at the premises. But it ought to be done correctly, Commissioner, that is all we are asking.

PN270

THE COMMISSIONER: Mr Hatcher, do you have anything further to put?

PN271

MR HATCHER: Commissioner, there is a real temptation when my friend keeps canvassing your decisions to revisit your earlier decision. I won't take that course. Commissioner, can I again reflect on the terms of AMIEU1; it simply doesn't say represent, it simply says meet, there was a meeting. 170M, in view of what my friend just put about the organisation being bound, one of the things that the organisation must satisfy the Commission of is that it has at least one member who requested the organisation to give a notification and the notification was a notification to the employer in writing that it wants to be bound by the agreement.

PN272

So you have got this bizarre situation where Mr Davis comes along and says, "You can't certified this agreement. We say that the application is wrong because it didn't nominate the employers and we don't know who the employers were, because we took no steps to find out. We haven't checked whether the agreement passes or fails the no disadvantage test, notwithstanding that back in October we say we were asked to represent these employees; just didn't check what award applied to them." Not in a position where he can say to the Commission, "If it is the State Award then these are the respects in which we say it fails; if it is the Federal Award, then these are the respects in which we say it fails." Just says not in a position to deal with it at all; in the face of the Commission's ruling, not in a position where he calls any evidence from any of these purported members who ask him to represent them. Not one of them is here to say, "This is dreadful. We've never had it explained to us. We wanted the Union there and the employer refused to meet with the Union." But where's this evidence? We just have Mr Davis saying from the bar table, "I'm not satisfied that it was explained to them." Well, with respect, he doesn't have to be satisfied. It's a question of whether the Commission is satisfied.

PN273

The Commission has a statutory declaration before it that is unchallenged that says it was explained to them. Mr Davis says, "They refused to meet with me." Well, where is the request? All he presents as evidence for that proposition is a letter from Mr Hannigan saying:

PN274

Accordingly, the ballot to be held on 18 and 19 October is cancelled.

PN275

There is no dispute that that occurred.

PN276

A new date will be set.

PN277

No dispute that that occurred.

PN278

Your attendance at our client's premises this week is now not necessary.

PN279

Well, if that's a refusal to confer, it's in an entirely different form to that which the Commission would usually see. He doesn't even say, "I rang them on this day. I spoke to this person and this person said, 'No, we will not meet with you'". That might be a refusal but he doesn't even say that, let alone call any evidence as to it and, on that basis, he invites the Commission not to deal with an agreement that has been voted on by the employees which has substantial benefits for the employees; an agreement which, ironically, he says his organisation would like to be party to.

PN280

In my respectful submission, the Commission has ruled. The Commission ought insist upon Mr Davis complying with the Commission's ruling. If he wishes to put submissions as to the no disadvantage test he should put them. If he doesn't, then he doesn't, and the Commission can determine the matter. May it please the Commission?

PN281

THE COMMISSIONER: Well, I've heard what has been put in relation to the application for an adjournment. I'm not prepared to adjourn. What I will do is reserve my decision in relation to the material that has been put, and I understand that Mr Davis is desirous of putting submissions in relation to the no disadvantage test but says that the Commission shouldn't hear those submissions until other preliminary matters are determined. That's not the course that I said that we would adopt.

PN282

As far as I'm concerned, I'm entitled to ask for all the material and I did ask for all the material but there was never any prior notice that these matters should be dealt with in a preliminary way. If I get to the no disadvantage test, that is, that I rule against you on all of the other material that you've put and a Full Bench takes the view that I've denied you procedural fairness, I'm sure that they will restore the position but, in my view, you've had an opportunity. You would have preferred to deal with the matter in a different course but, at the end of the day, that's a matter for the Commission. The Commission made a ruling that I would gather all the material and I don't see a reason to change that course.

PN283

Having said all of that, it is, of course, necessary for me to decide these issues sequentially and it may be that if you're right on some of your points, then the Commission won't deal with the no disadvantage test. As I've said, in relation to all those materials I haven't ruled on today, I reserve my decision which we'll publish in writing in due course. I can say that I will be waiting for the transcript before I issue a decision. That ordinarily takes at the outside one week. I would indicate to the parties that they could expect a written decision within a week of that time, so within a fortnight you should have a decision.

ADJOURNED INDEFINITELY [12.06pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #AMIEU1 RAMSEY GROUP OF COMPANIES CERTIFIED AGREEMENT PROPOSAL PN25
EXHIBIT #AMIEU2 LETTER FROM MR DAVIS TO THE COMPANY DATED 09/10/2001 PN26
EXHIBIT #AMIEU3 LETTER FROM HANNIGANS LAWYERS AND SOLICITORS TO MR DAVIS DATED 11/10/2001 PN27