AG2002/3257, Transcript of Proceedings [2002] AIRCTrans 3011 (7 August 2002)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT O'CALLAGHAN

AG2002/3257

THE DISTRICT COUNCIL OF TUMBY BAY
AND THE AUSTRALIAN WORKERS' UNION
ENTERPRISE BARGAINING AGREEMENT
NO 8 2002

Application under section 170LS of the Act
by the Australian Workers' Union, Greater
South Australian Branch and Another re agreement
about industrial dispute (Division 3)

ADELAIDE

9.08 AM, TUESDAY, 23 JULY 2002

Continued from 4.7.02

PN67

THE SENIOR DEPUTY PRESIDENT: Good morning. I note that there are no changes to appearances. This matter was last before me on 4 July and on that occasion there were two outstanding issues one of which related to the rates of pay and in particular the schedule provided by the employer and one related to the operation of the dispute resolution provision in this agreement. The matter was adjourned so that the AWU could clarify both issues. I could advise that on 8 July I received advice from you, Mr Grue, to the effect that the AWU agreed with the rates of pay or the schedule of rates provided for under this agreement but that the AWU were of the view that either the Australian Industrial Relations Commission or the South Australian Industrial Relations Commission would have the power to hear a dispute notified to it under clause 22 of the agreement.

PN68

I decided on the basis of my earlier undertaking to the parties that if I continued to have a doubt as to the extent to which the agreement could be certified I would call the matter back on so as to raise those questions with the parties and it is on that basis primarily that I've scheduled this morning's hearing. Mr Grue, I have your position and if I can put your position in my words to make sure that I properly understood it, it is to the effect that both the Australian Relations Commission and the South Australian Industrial Relations Commission would have the power to hear a dispute pursuant to clause 22 of the agreement and that the AWU would have no jurisdictional objection to either Tribunal hearing the matter. Is that correct?

PN69

MR GRUE: That would be our position, Senior Deputy President. I'd imagine if you have a scenario when both parties had notified different Commissions of a dispute, then there would a question as to which Commission should hear it but - - -

PN70

THE SENIOR DEPUTY PRESIDENT: You see that is the issue that perhaps I am most interested in from the AWUs perspective and I will ask Ms James in a minute about her perspective. Perhaps if I could put a "what if" scenario to you, that is that there was a dispute over a provision of the agreement and that disputed works it way through the various provisions of clause 22 to the point where the employer may have notified a dispute in this Commission and the union may have notified a dispute in the South Australian Commission. What I'm interested in is the AWUs position in the event that such an event were to occur.

PN71

MR GRUE: The way I'd imagine that would be dealt with is that the Commission that was notified first should be the Commission that could exercise its power and while the other Commission's jurisdiction was also enlivened I would imagine that that Commission would exercise its discretion not to hear a matter based on the same facts that was already before a different Commission.

PN72

THE SENIOR DEPUTY PRESIDENT: Can I take that a step further? Can I understand then that the AWU are saying to me that whilst you believe that the agreement provides for notification of dispute in either or both Commissions, the AWU would have, would take no jurisdictional objection to it being raised in either Commission. It would simply be a question, to your mind, of the Commission which was first notified of the dispute, dealing with it?

PN73

MR GRUE: Yes sir.

PN74

THE SENIOR DEPUTY PRESIDENT: Thank you. Thank you, Mr Grue, I should foreshadow I've got another couple of questions for you later but I think it might be best if we deal with this matter in stages. Ms James, you have heard many of my questions on this issue in other agreements and I think it only fair to indicate to you once again, if both parties are telling me the same thing, then that is a substantially satisfactory position, from the point of view of my appreciation of the dispute resolution provision.

PN75

If, however, both parties are telling me a different thing, then I need to look into the matter further. Now, on 4 July, you foreshadowed to me that the employer position was fundamentally that the appropriate Tribunal was the Australian Industrial Relations Commission but that that was not a matter that the employer was adamant should be the case. Is that still a correct summary of your position?

PN76

MS JAMES: It is very much like that, sir. It is more - - -

PN77

THE SENIOR DEPUTY PRESIDENT: I thought I would do the talking for you today, given that I have been advised that you have got very little vocal power.

PN78

MS JAMES: That is right. I think it might be something to do with the climate that was in the conference yesterday. You weren't there in the morning, it was - we had an air-conditioning malfunction. It was very humid. Sir, basically what counsel wants to see is a little more direction. They certainly are not - they don't have any passion for either Tribunal except that any disputes out of - - -

PN79

THE SENIOR DEPUTY PRESIDENT: Few people have passions for either Tribunals, Ms James. I guess I'm wanting to take the issue a step beyond passion.

PN80

MS JAMES: Okay. They are of the view that they would prefer any disputes arising out of the operation of the agreement, that it would be the AIRC. It is a Federal agreement and therefore they say that it is their view that the Federal Tribunal would be the better venue. They don't really have any fixed view of whether it should be State or Federal in terms of any disputes arising out of employment or the award. If it is a State Award, quite happy to go the State Commission, so there's no investment there in terms of the employer. They would just prefer to see it specify in the actual clause rather than just leaving it open.

PN81

THE SENIOR DEPUTY PRESIDENT: Yes, well you see, I don't have a capacity to re-write the clause.

PN82

MS JAMES: No.

PN83

THE SENIOR DEPUTY PRESIDENT: The clause is part of the document that went to employees for a vote.

PN84

MS JAMES: Yes.

PN85

THE SENIOR DEPUTY PRESIDENT: All that I have the capacity to do is to clarify with the representatives of the parties, their intentions in relation to that particular clause and I'm just wondering whether I can ask you the same question that I posed to Mr Grue?

PN86

MS JAMES: yes.

PN87

THE SENIOR DEPUTY PRESIDENT: In the event that there was a dispute that it reached a point in the dispute resolution process which necessitated involvement of - in an industrial Commission and the employer notified a dispute to the Federal Commission, the union notified a dispute to the State Commission, can you tell me that there would be no possibility of a jurisdictional challenge from the point of view of the employer?

PN88

MS JAMES: No, there would not be.

PN89

THE SENIOR DEPUTY PRESIDENT: There would be no possibility of such a challenge?

PN90

MS JAMES: No, no sir.

PN91

THE SENIOR DEPUTY PRESIDENT: How would you propose then that, in the event of notifications being put into both Tribunals, the question of which Tribunal should hear the matter, be determined?

PN92

MS JAMES: This is a very difficult question.

PN93

THE SENIOR DEPUTY PRESIDENT: You see, perhaps I should explain the question. What I am concerned about is that you have got in clause 22, a reasonably standard and clear dispute resolution procedure right up to the point where a matter might be referred to an industrial Tribunal. What I'm concerned about is that it is that fork in the road which has the potential, and I put it as no more than that, to be a matter of disputation in itself and there have been disputes, very recent disputes, which have gone on for some substantial period of time, over which Tribunal should deal with a particular issue and I am concerned, and I put it as no more than that, that this clause by itself might be characterised in two ways. One would be to say: it is in effect proposing two dispute resolution mechanisms with no apparent agreement between the parties as to which of those two should be prevail - - -

PN94

MS JAMES: Well definitely the, sorry - - -

PN95

THE SENIOR DEPUTY PRESIDENT: - - - or secondly, it could be described as saying it is proposing a dispute resolution procedure with an inherent flaw in it which itself could well be the subject of an ancillary or subsidiary dispute and it is those two sets of concerns that I'm particularly wanting to clarify.

PN96

MS JAMES: I do understand. It is definitely an employer's view that they would prefer it to be the Federal Tribunal. That is what they have advised me of.

PN97

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Grue, I think the best way of addressing this problem is to indicate to you that, whilst I have the concerns that I outlined to both you and to Ms James, my over riding approach is to say that, wherever I can, I will certify an agreement but I do have some fairly significant concerns in this regard and it might be best if I raised those concerns with you now and give both you and Ms James the opportunity to either comment on them today and/or to provide me with some written advice on those issues because they may require a little homework over the next two weeks.

PN98

Based on the information that you may or may not care to give me today and the information that you may or may not care to give me over the next two weeks in a written form, I can then determine which way I should be going in terms of the application for certification. I hasten to say that the questions that I raise with you are not necessarily unique questions. They draw in part upon various decisions of the Commission and I think it only fair that I refer you to a couple of those now in the event that you want to reference them in considering your responses to me.

PN99

The first is a Full Bench decision which is print A620 of February 1998 and the matter was Ampol Refineries v The Australian Institute of Marine and Power Engineers. This was an appeal against a decision of Senior Deputy Polites that went to the operation of the dispute resolution provision in a proposed agreement. The second decision to which I would refer you is the decision of Commissioner Bacon of 16 May 1997 being print P1035. That was in the matter of the Bradkin v Ipswich Certified Agreement and the third is a decision of Commissioner Simmonds in print N1058, being the Gainsborough Hardware Industries Certified Agreement of 1996.

PN100

Each of those three decisions resulted in the certification of the agreements in question and each raised various questions which may or may not be relevant to this particular case. The questions that I have for you fall into three broad groups and the majority of my questions are directed specifically at section 170LT(8) which is the section of the Act that requires that, as a pre-requisite for certification, the agreement should have a process for preventing and settling disputes and in that respect, I would be interested to hear from the parties as to whether the proposed clause 23 envisages a process for discussion and agreement for the preventing and settling of disputes. My emphasis in that regard is on the concept of discussion and agreement.

PN101

Secondly, whether the clause in question in this agreement has the object or purpose of preventing or settling disputes. Thirdly, whether the clause represents a procedure the object of which is the settlement of the dispute. Fourthly, I would be interested in hearing from the parties as to what extent there is any expectation that the clause will lead to an arbitrated solution and in this respect I would ask whether the parties distinguish between an arbitration on an issue of jurisdiction and an arbitration on the actual merits of the issue in dispute.

PN102

I would be interested in advice from the parties as to whether the cause does represent one process for dispute resolution or whether it represents potentially, two processes. If it is indeed, two, then how are disputes over the two processes to be determined? Finally, with respect to section 170LT(8), you may care to comment on the extent to which I should err on the side of certification, given the objects of part 6B of the Act. I then have a further question that draws upon section 170LW of the Act relates to the procedures for preventing and settling disputes and provides for a discretion available to the Commission under the Federal Act which would empower the Commission, if it so approves, to do either or both of the following, the first being to settle disputes over the application of the agreement and the second being to appoint a Board of Reference.

PN103

The specific question that I have in relation to section 170LW is that if the agreement was to be certified, can the parties provide reasons why the Commission should not include in the certificate a rejection of the capacity to utilise that section 170LW, given the uncertainties inherent in the dispute resolution process. A final question that draws upon section 170LU(1) of the Act which is the section that addresses when the Commission should refuse to certify an agreement. I would be interested in this respect in hearing from the parties as to whether because of the uncertainties in the dispute resolution process, the parties can provide reasons for certification given the specific provisions of section 170LU(1).

PN104

I fully appreciate some of those are reasonably technical and complex questions and it is on that basis that I suggest it might be more appropriate for the parties to provide a written response to them. If you wish, however, to either address me on them today, I'm happy to hear you on them today, or alternatively should you wish me to make a further hearing date, I'm happy to do that. I need to make it absolutely clear my preferred position is to approve the agreement and I am raising these questions simply because of a concern that the requirements of the Act need to be met, such that I can be confident that what we have here is indeed a valid, legitimate and workable dispute resolution procedure and not a land mine that we are just waiting to step on at some stage in the future. Mr Grue, what would you have me do today?

PN105

MR GRUE: My preference would be to provide the Commission with a written submission covering all those issues that have been raised and if there are any further issues that arise from any such submission, then perhaps another hearing date would be required to clarify any issues in such a written submission, but I would imagine it would take a little bit of time and a little bit of research to give you a comprehensive submission of that type.

PN106

THE SENIOR DEPUTY PRESIDENT: Yes, all right. Ms James, are you in agreement with that approach?

PN107

MS JAMES: Yes, we would concur with that process.

PN108

THE SENIOR DEPUTY PRESIDENT: What I propose then, Mr Grue is - is 2 weeks a reasonable sort of time-frame? Do you need longer? I'm just conscious of the fact that the agreement is - is obviously not certified at this stage and the longer we delay the process the greater the potential for the employees who voted some time ago to endorse this agreement to scratch all their heads to say: where's the money that we thought we were getting.

PN109

MR GRUE: I think 2 weeks is probably reasonable. I can pretty much guarantee, I think, that - - -

PN110

THE SENIOR DEPUTY PRESIDENT: Look, what I will do, is I will ask that the transcript be made available as soon as practicable so that you can digest the various questions that I've raised and I will indicate to you the parties that, in the event that either party wished that there be a further hearing so that you could either supplement or address further, your written submissions, then you need to incorporate that request in your written submissions. Further, in the event that having read your written submissions, I have the need to ask further questions, I will organise for a further hearing in any event. Failing that, I will simply work off the - from the basis of the material that is provided to me by the parties.

PN111

MR GRUE: Thank you, sir, Deputy Commissioner.

PN112

THE SENIOR DEPUTY PRESIDENT: Very well, look I will adjourn the matter on that basis. Thank you.

ADJOURNED ACCORDINGLY [9.34pm]