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Australian Industrial Relations Commission Transcripts |
AUSCRIPT PTY LTD
ABN 76 082 664 220
Level 4, 179 Queen St MELBOURNE Vic 3000
(GPO Box 1114J MELBOURNE Vic 3001)
DX 305 Melbourne Tel:(03) 9672-5608 Fax:(03) 9670-8883
TRANSCRIPT OF PROCEEDINGS
O/N VT05196
AUSTRALIAN INDUSTRIAL
RELATIONS COMMISSION
SENIOR DEPUTY PRESIDENT ACTON
AG2001/7748-7900
COLONY FURNISHING PTY LTD (MARK II)
ENTERPRISE BARGAINING AGREEMENT 2000
SCHIAVELLO GROUP OF COMPANIES ENTERPRISE
BARGAINING (MARK IV) AGREEMENT 2001
GEELONG WINDOWS PTY LTD ENTERPRISE
BARGAINING AGREEMENT 2001
PACIFIC SHOPFITTERS PTY LTD ENTERPRISE
BARGAINING AGREEMENT 2001
CORPORATE DESIGN AUSTRALIA PTY LTD
(MARK III) ENTERPRISE BARGAINING
AGREEMENT 2001
RBF CO t/as SUNNYSIDE FINE FURNITURE
(MARK I) ENTERPRISE BARGAINING
AGREEMENT 2000
ALL POINTS GLASS PTY LTD (MARK III)
ENTERPRISE BARGAINING AGREEMENT 2001
GRAPHIC OFFICE SYSTEMS PTY LTD ENTERPRISE BARGAINING (MARK IV) AGREEMENT 2001
CREATIVE COMMERCIAL FURNITURE PTY LTD
ENTERPRISE BARGAINING (MARK III)
AGREEMENT 2001
CORSETTI DESIGNS PTY LTD (MARK II)
ENTERPRISE BARGAINING AGREEMENT 2001
ALLITT JOINERY ENTERPRISE BARGAINING
(MARK I) AGREEMENT 2001
INTERIOR SOLUTION MANUFACTURING PTY LTD
ENTERPRISE BARGAINING AGREEMENT
(MARK II) 2001
GALLERY CARPET SERVICES PTY LTD (MARK II)
ENTERPRISE BARGAINING AGREEMENT 2001
ANGELO'S ALUMINIUM PRODUCTS ENTERPRISE
BARGAINING AGREEMENT 2001
TOOKEY NOMINEES PTY LTD ENTERPRISE
BARGAINING AGREEMENT 2001
NULINE CABINETS PTY LTD ENTERPRISE
BARGAINING AGREEMENT 2001
MELBOURNE GLASS (MARK IV) ENTERPRISE
BARGAINING AGREEMENT 2000
MCK PACIFIC PTY LTD t/as REGENCY AND
COLLINS SHOWERSCREENS ENTERPRISE BARGAINING
(MARK III) AGREEMENT 2000
DELTA CARPETS & VINYLS PTY LTD (MARK III)
ENTERPRISE BARGAINING AGREEMENT 2000
ADS GLASS PTY LTD ENTERPRISE BARGAINING
AGREEMENT 2001
WLG INDUSTRIES PTY LTD (MARK II) ENTERPRISE BARGAINING AGREEMENT 2001
ARTELL CABINETS PTY LTD (MARK II) ENTERPRISE BARGAINING AGREEMENT 2001
M.E.M. INDUSTRIES PTY LTD ENTERPRISE
BARGAINING AGREEMENT 2001
WHITTLESEA GLASS & MIRRORS (MARK III)
ENTERPRISE BARGAINING AGREEMENT 2000
FIGMAR CABINETS ENTERPRISE BARGAINING
AGREEMENT 2001
'A' SERIES PTY LTD ENTERPRISE BARGAINING
AGREEMENT 2001
AJ & SC GREWER CABINETMAKERS PTY LTD
ENTERPRISE BARGAINING (MARK I) AGREEMENT 2000
PROTECTION GLASS & GLAZING PTY LTD
(MARK III) ENTERPRISE BARGAINING
AGREEMENT 2001
JOENATH ENTERTAINMENT PTY LTD t/as
IMAGE GLASS ENTERPRISE BARGAINING
AGREEMENT 2001
INNERVATIONS PTY LTD (MARK II) ENTERPRISE
BARGAINING AGREEMENT 2001
BASECRAFT PTY LTD (MARK I) ENTERPRISE
BARGAINING AGREEMENT 2001
PLAN SYSTEM AUSTRALIA PTY LTD ENTERPRISE
BARGAINING (MARK II) AGREEMENT 2001
PROGLAZING PTY LTD ENTERPRISE BARGAINING
AGREEMENT 2001
PHILLIP LATHAM & JOHN QUINN t/as
SPECIALTY GLAZING ENTERPRISE BARGAINING
AGREEMENT 2001
JAIGOS HOLDINGS t/as/ BETTER FLOORS
(MARK IV) ENTERPRISE BARGAINING
AGREEMENT 2001
RABATOS SASHA NOM PTY LTD t/as CLAYTON
GLASS (MARK II) ENTERPRISE BARGAINING
AGREEMENT 2001
CLARK FLOORS PTY LTD (MARK III)
ENTERPRISE BARGAINING AGREEMENT 2001
HOWARD CARPET SERVICES PTY LTD (MARK II)
ENTERPRISE BARGAINING AGREEMENT 2001
HAWTHORN SHOWER SCREENS ENTERPRISE
BARGAINING AGREEMENT 2001
JAPSHAL PTY LTD t/as AIRPORT COMMERCIAL
JOINERY ENTERPRISE BARGAINING (MARK I)
AGREEMENT 2001
INTERLAY GLASS CORPORATION (MARK III)
ENTERPRISE BARGAINING AGREEMENT 2000
AXLE GLASS PTY LTD ENTERPRISE BARGAINING
AGREEMENT 2001
ALLCAR INSTALLATIONS ENTERPRISE
BARGAINING AGREEMENT 2001
JAZZ PTY LTD t/as MACEY'S CARPET & CURTAIN
CENTRE (MARK II) ENTERPRISE BARGAINING
AGREEMENT 2000
MIAMI DESIGN PTY LTD ENTERPRISE BARGAINING
AGREEMENT 2000
HANMAR NOMINEES PTY LTD t/as HANMAR - THE
CARPET TILE PEOPLE (MARK II) ENTERPRISE
BARGAINING AGREEMENT 2000
AURORA FLOOR COVERINGS (WAREHOUSE) PTY LTD
(MARK III) ENTERPRISE BARGAINING AGREEMENT
2000
AVLAZE GLAZING PTY LTD (ENTERPRISE
BARGAINING) AGREEMENT 2000
DBM HANDRAILS PTY LTD (MARK I) ENTERPRISE
BARGAINING AGREEMENT 2000
ELTOREA PTY LTD t/as JPH CABINET (MARK I)
ENTERPRISE BARGAINING AGREEMENT 2000
INTERFACE SERVICES PTY LTD (MARK III)
ENTERPRISE BARGAINING AGREEMENT 2000
STENNER CONSTRUCTION PTY LTD (MARK I)
ENTERPRISE BARGAINING AGREEMENT 2000
CABINET & FURNITURE MANUFACTURERS PTY LTD
ENTERPRISE BARGAINING AGREEMENT 2000
AUSTRALIA WIDE CARPETS (MARK III) ENTERPRISE
BARGAINING AGREEMENT 2001
VIEWTECH GLASS (MARK I) ENTERPRISE
BARGAINING AGREEMENT 2000
MICHAEL SCHIAVELLO OFFICE FURNITURE PTY
LTD ENTERPRISE BARGAINING (MARK IV)
AGREEMENT 2001
A & N GLASS PTY LTD ENTERPRISE (MARK I)
BARGAINING AGREEMENT 2001
EASTSIDE CARPET CHOICE (MARK I) ENTERPRISE
BARGAINING AGREEMENT 2001
EXECUTIVE SOUND WINDOWS PTY LTD (MARK I)
ENTERPRISE BARGAINING AGREEMENT 2000
W. BREMNER AND SONS PTY LTD (MARK IV)
ENTERPRISE BARGAINING AGREEMENT 2000
STEVENS GLASS (MARK III) ENTERPRISE
BARGAINING AGREEMENT 2000
STAHMERS CARPETS PTY LTD (MARK I)
ENTERPRISE BARGAINING AGREEMENT 2000
SYSTEMATIC CARPET INSTALLATIONS
PTY LTD (MARK II) ENTERPRISE BARGAINING
AGREEMENT 2000
SANISA PTY LTD t/as VINYL FLOORS (MARK I)
ENTERPRISE BARGAINING AGREEMENT 2000
SPECIALIZED GLAZING SERVICES (ENTERPRISE
BARGAINING) AGREEMENT 2000
PROJECT FLOORS PTY LTD (MARK II)
ENTERPRISE BARGAINING AGREEMENT 2000
PEART COVENEY & ASSOC PTY LTD t/as COVENEY
INTERLAY (MARK IV) ENTERPRISE BARGAINING
AGREEMENT 2000
P.W. GLASS SERVICES PTY LTD (ENTERPRISE
BARGAINING) AGREEMENT 2000
LIFESTYLE KITCHENS ENTERPRISE BARGAINING
AGREEMENT 2000
HIGHFIELD FURNISHINGS PTY LTD ENTERPRISE
BARGAINING (MARK III) AGREEMENT 2000
GEELONG FLOORWORLD (MARK II) ENTERPRISE
BARGAINING AGREEMENT 2000
FLETCHERS CARPET CHOICE (MARK II)
ENTERPRISE BARGAINING AGREEMENT 2000
FLOORING FUTURE PTY LTD (MARK II)
ENTERPRISE BARGAINING AGREEMENT 2000
EB MARKETING PTY LTD t/as CORPORATE
FLOORS MELBOURNE (MARK II) ENTERPRISE
BARGAINING AGREEMENT 2000
CARPET GALLERY (MARK II) ENTERPRISE
BARGAINING AGREEMENT 2000
CRYSTAL SHOWERSCREENS PTY LTD (MARK II)
ENTERPRISE BARGAINING AGREEMENT 2000
CLEARVIEW GLASS (ENTERPRISE BARGAINING)
AGREEMENT 2000
BRITEASH PTY LTD t/as MR CARPETS
(MARK III) ENTERPRISE BARGAINING
AGREEMENT 2000
LIVING HARDWOOD FLOORING PTY LTD
(MARK I) ENTERPRISE BARGAINING
AGREEMENT 2000
FLOORS BY GREENSBOROUGH PTY LTD (MARK III)
ENTERPRISE BARGAINING AGREEMENT 2000
DESIGNER SHOWERSCREENS & WARDROBES
ENTERPRISE BARGAINING (MARK II)
AGREEMENT 2000
AYWON CARPET CONTRACTORS PTY LTD (MARK IV)
ENTERPRISE BARGAINING AGREEMENT 2000
ART ALUMINIUM PTY LTD (ENTERPRISE
BARGAINING) AGREEMENT 2000
PREMIUM (VIC) PTY LTD ENTERPRISE BARGAINING
(MARK 1) AGREEMENT 2000
MITFORD GLASS (MARK IV) ENTERPRISE
BARGAINING AGREEMENT 2000
STYLECRAFT PTY LTD ENTERPRISE BARGAINING AGREEMENT 2000
D. HOUSTON VINYL & CARPET SERVICES
(MARK II) ENTERPRISE BARGAINING
AGREEMENT 2000
BLATTA PTY LTD t/as WEISSMAN CARPETS
(MARK II) ENTERPRISE BARGAINING
AGREEMENT 2000
WIT CORPORATION PTY LTD t/as FLOORWORLD
ORMOND (MARK II) ENTERPRISE BARGAINING
AGREEMENT 2000
ULTIMATE GLASS & GLAZING PTY LTD (MARK II)
ENTERPRISE BARGAINING AGREEMENT 2000
TRUMP PROPERTY MAINTENANCE (MARK IV)
ENTERPRISE BARGAINING AGREEMENT 2000
SKINNER COMMERCIAL CARPET SERVICES PTY
LTD (MARK II) ENTERPRISE BARGAINING
AGREEMENT 2000
RINGWOOD FLOORCOVERINGS PTY LTD (MARK I)
ENTERPRISE BARGAINING AGREEMENT 2000
KEN SPARKS CARPETS PTY LTD (MARK I)
ENTERPRISE BARGAINING AGREEMENT 2000
JO FI PARQUETRY SPECIALISTS PTY LTD
(MARK II) ENTERPRISE BARGAINING
AGREEMENT 2000
JACANA CRAFT PTY LTD t/as STATEWIDE COMM
FLOORING (MARK I) ENTERPRISE BARGAINING
AGREEMENT 2000
JJ CONTRACT CARPETS PTY LTD (MARK I)
ENTERPRISE BARGAINING AGREEMENT 2000
HILLS & MASON PTY LTD ENTERPRISE
BARGAINING AGREEMENT 2000
CLIPFIT GLAZING SERVICES PTY LTD
ENTERPRISE BARGAINING (MARK I)
AGREEMENT 2000
B & D CABINETS PTY LTD (MARK I)
ENTERPRISE BARGAINING AGREEMENT 2000
BALLARAT CARPET COURT (MARK I) ENTERPRISE BARGAINING AGREEMENT 2000
ACADEMY COMMERCIAL FLOORS PTY LTD
(MARK I) ENTERPRISE AGREEMENT 2000
ASSETT FLOORING PTY LTD (MARK II)
ENTERPRISE BARGAINING AGREEMENT 2000
APS SHOPFITTERS ENTERPRISE BARGAINING
AGREEMENT (MARK II) 2000
PROFESSIONAL VINYL FLOORS VICTORIA PTY LTD
ENTERPRISE BARGAINING AGREEMENT 2001
VISION LINE PTY LTD t/as FINK BROTHERS
DESIGNER CARPETS (MARK II) ENTERPRISE
BARGAINING AGREEMENT 2000
INTERIOR FLOORS PTY LTD (MARK I)
ENTERPRISE BARGAINING AGREEMENT 2000
FIRSTON PTY LTD t/as UNI FLOORING
RESOURCES (MARK II) ENTERPRISE BARGAINING AGREEMENT 2000
DISTINCTIVE FLOORCOVERINGS PTY LTD
(MARK II) ENTERPRISE BARGAINING
AGREEMENT 2000
COLONIAL TIMBER FLOORING PTY LTD (MARK I) ENTERPRISE BARGAINING AGREEMENT 2000
COMMERCIAL FLOORS (VIC) PTY LTD
(MARK II) ENTERPRISE BARGAINING
AGREEMENT 2000
BENCHMARK JOINERY AUSTRALIA PTY LTD
ENTERPRISE BARGAINING (MARK I)
AGREEMENT 2000
ADDERSOME INDUSTRIES PTY LTD t/as DELTA
CARPET ONE (MARK II) ENTERPRISE BARGAINING AGREEMENT 2000
VALECAP PTY LTD ENTERPRISE BARGAINING
AGREEMENT 2000
TINT DESIGN t/as HIGH PERFORMANCE FILMS
(ENTERPRISE BARGAIN) AGREEMENT 2000
T & G FLOORCOVERINGS PTY LTD (MARK II)
ENTERPRISE BARGAINING AGREEMENT 2000
SIMON CARPETS COMMERCIAL PTY LTD
(MARK IV) ENTERPRISE BARGAINING
AGREEMENT 2000
R & B FLOORS PTY LTD (MARK II) ENTERPRISE
BARGAINING AGREEMENT 2000
NORTHERN SHELDON PTY LTD t/as VICTORY
CARPET CONTRACTORS (MARK I) ENTERPRISE BARGAINING AGREEMENT 2000
NOBLE PARK GLASS ENTERPRISE BARGAINING
(MARK I) AGREEMENT 2000
LE PARQUETEUR PTY LTD (MARK II) ENTERPRISE BARGAINING AGREEMENT 2000
ITV CABINETS PTY LTD (MARK II) ENTERPRISE
BARGAINING AGREEMENT 2000
HOMESTEAD CARPETS PTY LTD (MARK I)
ENTERPRISE BARGAINING AGREEMENT 2000
GUYETTS CARPET SERVICES PTY LTD (MARK II)
ENTERPRISE BARGAINING AGREEMENT 2000
EXPERT GLASS ENTERPRISE BARGAINING
(MARK IV) AGREEMENT 2000
DUNCAN GLASS PTY LTD (MARK IV)
ENTERPRISE BARGAINING AGREEMENT 2000
COTTER FLOORS PTY LTD (MARK IV)
ENTERPRISE BARGAINING AGREEMENT 2000
CBD CARPETS PTY LTD (MARK II)
ENTERPRISE BARGAINING AGREEMENT 2000
AUSTRALIAN ALUMINIUM SHOPFITTINGS PTY LTD
ENTERPRISE BARGAINING (MARK IV)
AGREEMENT 2000
AVONDALE GLASS ENTERPRISE BARGAINING
AGREEMENT (MARK III) 2000
AUDSLEY WINDOWS (MARK II) ENTERPRISE
BARGAINING AGREEMENT 2000
CUSTOM KITCHENS & SHOPFITTING PTY LTD
ENTERPRISE BARGAINING AGREEMENT 2000
WILSON NOMINEES PTY LTD t/as ECLIPSE
WINDOW TINTING (ENTERPRISE BARGAINING)
AGREEMENT 2000
VISION GLAZING (ENTERPRISE BARGAINING)
AGREEMENT 2000
PREMIER KITCHENS (AUST) PTY LTD
ENTERPRISE BARGAINING AGREEMENT 2000
TECH GLASS INSTALLATIONS PTY LTD
(ENTERPRISE BARGAINING) AGREEMENT 2000
MAKKEN CLEANING SERVICES PTY LTD
ENTERPRISE BARGAINING AGREEMENT 2000
MENZEL GLASS ENTERPRISE
BARGAINING AGREEMENT 1999
HERITAGE GLASS PTY LTD (ENTERPRISE
BARGAINING) AGREEMENT 2000
H & G GLASS PRODUCTS PTY LTD
(ENTERPRISE BARGAINING) AGREEMENT 2000
HIGH PERFORMANCE GLASS PTY LTD
(ENTERPRISE BARGAINING) AGREEMENT 2000
HAKEA GLASS (VIC) PTY LTD (ENTERPRISE
BARGAINING) AGREEMENT 2000
m d & k KITCHENS PTY LTD
ENTERPRISE BARGAINING AGREEMENT 2000
GEELONG GLASS ENTERPRISE BARGAINING
AGREEMENT 1999
CONTRACT GLASS AND ALUMINIUM PTY LTD
(ENTERPRISE BARGAINING) AGREEMENT 2000
BONDWELL INVESTMENTS PTY LTD t/as CENTURY
GLASS (ENTERPRISE BARGAINING) AGREEMENT 2000
CENTURY GLASS (ENTERPRISE BARGAINING)
AGREEMENT 2000
BRADFORD GLASS (ENTERPRISE BARGAINING)
AGREEMENT 2000
AA IBRAHIM CABINETS ENTERPRISE
BARGAINING AGREEMENT 2000
SPECIALISED FLOOR COVERINGS (VIC) PTY
LTD (MARK 11) ENTERPRISE BARGAINING
AGREEMENT 2000
BRAESIDE FLOORS PTY LTD (MARK III)
ENTERPRISE BARGAINING AGREEMENT 2000
Applications under section 298Z of the Act
for the removal of objectionable provisions
from the above certified agreements
MELBOURNE
10.39 AM, FRIDAY, 2 AUGUST 2002
Continued from 23.5.02
PN202
MR A. LINDEMAN: I appear again for the Employment Advocate in each of these applications. Do you require appearances again from - - -
PN203
THE SENIOR DEPUTY PRESIDENT: I might as well.
PN204
MR S. PETERS: I appear in the matter AG7825; that is the Crystal Showerscreens Proprietary Limited Enterprise Agreement.
PN205
MR P. EBERHARD: I am from the Victorian Employers Chamber of Commerce and Industry. We continue to represent those organisations which we have previously notified the Commission of.
PN206
MS A. GOOLEY: I seek leave to appear on behalf of the CFMEU FFTS division.
PN207
THE SENIOR DEPUTY PRESIDENT: Leave to appear is granted in the necessary instances. Mr Lindeman.
PN208
MR LINDEMAN: Thank you, your Honour. You will recall that this matter has been before you on a number of occasions and we, through the course of the listing arrangements, have in accordance with your Honour's directions provided the other parties - that is the employer advocate has provided the other parties with its contentions; that is the Employer Advocate's contentions of fact and law. Those contentions of fact and law have been responded to by the CFMEU and other parties, and we are now at the position, your Honour, where we understand it would be - we would be speaking to our submissions thus far filed with the Commission and served on the other parties.
PN209
If the Commission pleases, could I just by way of just some housekeeping, firstly, in the contentions of fact and law - I should, if I may, just hand you a copy of the folder of documents that my instructing solicitors have prepared, so that we have provided a copy of this to each of the other parties. That folder has a list of contents and yours is the same as mine, your Honour. It has tabs with the contents, the numbered contents described rather than numbered.
PN210
And, firstly, it contains the applicant's contentions of fact and law and a further reply which is what I intend speaking to this morning. It has got the respondent's contentions of law and facts, CFMEU; then other parties contentions of law and fact; then under tab 4 the applicant's authorities as to objectionability; then 5, applicant's authorities as to remedy; then 6, the CFMEUs authorities; and 7, the Master Builders Association of Victoria additional authorities as to remedy; then 8, VECCIs additional authorities as to remedy. Then there is a full copy of the Colonial Furnishing Proprietary Limited Mark II Enterprise Agreement 2000 just so that there is a form copy of the particular agreement that is the subject of consideration, as the example of the 155 odd. And then there is a copy of the application, or one of the applications under the tenth tab which is standard, repeated for each of the other applications. Your Honour, in the contentions of fact and law of the Employment Advocate there is just one error that I wanted to correct in paragraph 19.
PN211
THE SENIOR DEPUTY PRESIDENT: Let me turn it up.
PN212
MR LINDEMAN: I quoted from the Second Reading Speech of the Minister, and in the fifth line from the bottom it has the word - the sentence starting :
PN213
The freedom of associated provisions of the Act prohibit discrimination -
PN214
I have got "base", it should say -
PN215
based on membership.
PN216
So the "base" needs to have the letter "d" added to it. A couple of other matters that I just wanted to refer to by way of general observation if I may, your Honour. In the CFMEUs contentions of fact and law you will notice that there is a repeating of the - I don't want to say this by way of criticism, but there is a repeating of the numbering. The contentions go to number 15 and then start again at number 11 on page 4, and that might create a little bit of confusion if one doesn't - hasn't had one's mind brought to it.
PN217
Just by way of general observation, the contentions of the CFMEU argue, firstly, that the clause in question is not objectionable and, if it is found to be objectionable, that it should be substituted by an alternative clause by way of remedy: and we will address that in due course. Going to the Master Builders Association of Victoria, we note that in paragraph 5 of the contentions filed on behalf of the MBAV it is said, amongst other things, that:
PN218
The MBA reserve their position as to the question of objectionability.
PN219
We would reserve our right to respond to any new matter that is raised. We don't anticipate that the Master Builders Association is intending by that statement to, in a sense, seek to file submissions on the question of objectionability but just as a matter of extreme caution, we note the manner in which they have addressed the issue of objectionability by reserving their rights and we would seek to reserve our right to respond to anything that is original that may be sought to be put to the Commission by the Master Builders Association of Victoria.
PN220
Now, as to the submissions by the Glass Glazing Association of Victoria, they argue for removal and modification, and we - insofar as the submission is based on removal, it is consistent with our submissions. But insofar as it would seek modification, again if there is anything that is put or sought to be put in support of that proposition, we would reserve the right to respond to it; again, if there is anything new as opposed to anything that we may have already dealt with. We note that in VECCIs submissions that there are no submissions as to the issue of objectionability but they do deal with remedy and they request removal of the clauses. And insofar as they do that, their submissions are consistent with ours.
PN221
And then, finally, the OI Group of Industrial Advocates on behalf of Crystal Showerscreens Proprietary Limited, those submissions broadly adopt VECCIs position as to removal and, therefore, the three of us are in the same boat. And then they appear to adopt the Employment Advocate's contentions generally but add by way of reply further submissions which we have read and we are grateful for and, in fact, we seek to adopt those submissions and, in effect, we provide our own version, if you like, of those submissions.
PN222
Now, your Honour, unless you would be guided by it, I wasn't proposing to go through the contentions of law and fact that we filed originally, given that they are now fairly historic, so to speak. If you require me to do so, I will, if you - - -
PN223
THE SENIOR DEPUTY PRESIDENT: Well, I have read them.
PN224
MR LINDEMAN: Yes, all right. Well, if I may leave it on that basis that they are taken as read and, obviously, they form part of the foundation upon which we seek to make some further observations. Now, you have, your Honour, a copy of a written reply and, for the sake of brevity and being able to focus precisely on what we want to say with respect to those that oppose our applications, it is perhaps best if I just take you straight through that.
PN225
THE SENIOR DEPUTY PRESIDENT: Yes. I will mark the contentions of fact and law as L4.
PN226
MR LINDEMAN: I understood that the affidavit of service is marked L1, your Honour; L2 is the second affidavit of service; and L3 has been marked as the contentions, yes.
PN227
THE SENIOR DEPUTY PRESIDENT: It is already marked, is it?
PN228
THE SENIOR DEPUTY PRESIDENT: Well, let us leave it as already marked. What about your reply?
PN229
PN230
MR LINDEMAN: If your Honour pleases, the Employment Advocate's application under section 298Z(3) of the Workplace Relations Act are directed to what is contained in the impugned clauses. I just interpolate there, in this case we are essentially dealing with the clauses that we say are objectionable. This is not a case where we are looking at any other facts that are said to be needed or required in order to make sense of the actual clauses. It is the very clause itself that we are essentially concerned with in these applications. Going back to paragraph 1. The approach adopted by the Full Bench in Accurate Factory Maintenance Labour Hire Agreement 2000 to 2003, hereafter referred to as Accurate, that, inter alia:
PN231
The impugned clauses must -
PN232
quoting -
PN233
...overtly require the employer to differentiate as between unionists and non-unionists ...(reads)... provide non-union employees with the same benefits as are obliged to be provided to union member employees.
PN234
The obligation to advance the interests of one group and not the other we say is the very crux of the reason the impugned clauses are said to be objectionable. The characterisation of the impugned clauses as providing, quote, "the minimum entitlements" for insurance cover for union members as, for example, is said in the second paragraph of 12 of the CFMEUs contentions does not assist in determining whether such clauses are or are not objectionable. Both the question posed in the second paragraph 13 of the CFMEUs contentions, namely would an employer breach this agreement if they offered non-union employees insurance cover on the same terms as that offered to union members and the minimum entitlements approach and it is submitted seek to divert this inquiry on to a meaningless path, that is by asking what entitlements employers could, independent of the impugned clause, provide to employees. It is submitted these arguments are the very antithesis of the approach adopted in Accurate, that is asking whether or not the clause on its face obliges differential treatment as between for example union and non-union member employees.
PN235
THE SENIOR DEPUTY PRESIDENT: Why do you say it is the antithesis?
PN236
MR LINDEMAN: We say it is the opposite, because what the CFMEU seem to be saying is that what you do is to look at what the effect of these clauses are in terms of what could be done independent of it. You have got the requirement in the insurance clause for the employers to provide various entitlements to union members only. The CFMEU are saying, but it is merely a minimum entitlements clause and therefore the employer is at large to provide the same entitlement to any other person, whether member of another union or even non-union members and we say, well, that is not the issue.
PN237
What one has got to do in terms of determining whether or not a clause is objectionable is in accordance with what the Full Bench said in Re Accurate. What you have got to do is look at what the words actually say on their face and say whether or not those words require - and the other various provisions within the relevant section - an employer to do something which is in breach of the freedom of association part of the Act, so we say that by attempting to characterise this insurance clause, as we have called it, as a minimum entitlements clause and/or by asking the question as set out in paragraph 2, really that takes you nowhere. I mean, it takes you outside the clause and we say that is the antithesis of the approach that was suggested was the appropriate approach to adopt in looking at whether or not a clause either is objectionable or is not.
PN238
THE SENIOR DEPUTY PRESIDENT: So if one asked oneself whether the clause provided that an employer must not or may not provide the insurance to non-union members, you say that would be the wrong approach, is it?
PN239
MR LINDEMAN: I am sorry, your Honour, you are asking if the clause actually said that you mustn't provide it to non-union members?
PN240
THE SENIOR DEPUTY PRESIDENT: Yes.
PN241
MR LINDEMAN: Would we say it was still objectionable?
PN242
THE SENIOR DEPUTY PRESIDENT: Yes.
PN243
MR LINDEMAN: Yes, we would.
PN244
THE SENIOR DEPUTY PRESIDENT: Would it be more objectionable?
PN245
MR LINDEMAN: It is either objectionable or not, in our respectful submission and either objectionable or not on its face. It matters not whether - it seems to us not to matter whether the degree of objectionability is higher or lower.
PN246
THE SENIOR DEPUTY PRESIDENT: Well, it goes to the issue, doesn't it, of whether the clause requires discriminatory treatment? Does the clause require that the employer not provide, must not provide the insurance to non-members?
PN247
MR LINDEMAN: I see the point, your Honour. If what your Honour is saying is that if it operates in a negative, then you don't trigger the require element of the provision. I haven't thought that through, your Honour. May I just take that on consideration and perhaps address it towards the end of the submission, because I apprehend it probably goes more to what you would do by way of remedy than determining whether or not a clause is objectionable, whether it is couched in direct or indirect terms. That is, I am sorry, negative as opposed to positive terms.
PN248
THE SENIOR DEPUTY PRESIDENT: Well, the clause, to be objectionable, as I understand it, has to require or permit objectionable conduct.
PN249
MR LINDEMAN: Yes.
PN250
THE SENIOR DEPUTY PRESIDENT: Discriminatory conduct. What part of the clause requires that the employer must not or may not pay to non-union members or provide to non-union members?
PN251
MR LINDEMAN: I don't understand what the point is, I am sorry, your Honour. We are not dealing with a requirement that the employer not do something in respect of non-union members in terms of what is stated in the clause. The clause simply - the clause is drawn in terms where it obliges the employer to provide in respect of union members certain entitlements in circumstances where by inference, because of the absence of the reference to non-union members, it discriminates on its face in favour of union members. Now, what I understand your Honour to be saying, if the clause were drawn in terms where it simply said that in respect of the entitlements that are contained in the clause, those were not to be provided to non-union members, the problem is that such a clause wouldn't make a lot of sense because it wouldn't on its face require those entitlements to be provided to union members, but simply said in respect of these entitlements, the employer shall not provide those to non-union members. You don't have the positive obligation flowing, so am I understanding your Honour's proposition properly?
PN252
THE SENIOR DEPUTY PRESIDENT: Well, if the clause said the employer must provide to union members and must not provide to non-union members, that would be a requirement that was clearly discriminatory, arguably.
PN253
MR LINDEMAN: Well, I would submit that in such a situation, it would clearly on its face be discriminatory.
PN254
MR LINDEMAN: So what part of the clause says that the employer must not provide to union members?
PN255
MR LINDEMAN: It is there by clear inference. The fact that there is an obligation to - - -
PN256
THE SENIOR DEPUTY PRESIDENT: It would be a breach to not provide - if you did provide to non-union members?
PN257
MR LINDEMAN: If it did, would you breach the clause?
PN258
THE SENIOR DEPUTY PRESIDENT: Yes.
PN259
MR LINDEMAN: No.
PN260
THE SENIOR DEPUTY PRESIDENT: So why is it by clear inference?
PN261
MR LINDEMAN: No, the clause creates an obligation in respect of union members. It is silent with respect to non-union members as to that entitlement. Therefore, it differentiates as between union members and non-union members and in that way discriminates.
PN262
THE SENIOR DEPUTY PRESIDENT: The discrimination is the conduct by the employer, isn't it?
PN263
MR LINDEMAN: No, it is the obligation. It is the obligation on the face of the clause that we are focused on. It is not the conduct that flows or any conduct that might occur between the employer and employee subsequently.
PN264
THE SENIOR DEPUTY PRESIDENT: Does the clause require the employer to discriminate?
PN265
MR LINDEMAN: It does, yes, clearly.
PN266
THE SENIOR DEPUTY PRESIDENT: How does it require him to discriminate, or her?
PN267
MR LINDEMAN: The clause requires it in respect of union members. They shall be provided with these additional insurance provisions, in contradistinction to there being no such requirement in respect of non-union members.
PN268
THE SENIOR DEPUTY PRESIDENT: But it doesn't require not to provide the insurance to non-union members, does it?
PN269
MR LINDEMAN: We are not concerned with what it doesn't provide. We are concerned with what it provides.
PN270
THE SENIOR DEPUTY PRESIDENT: Aren't we concerned with clauses that require discriminatory conduct?
PN271
MR LINDEMAN: Well, yes, we are concerned with clauses that oblige conduct that will discriminate and we say that is exactly what occurs. The fact that the employer, independent of the certified agreement, can undertake other action which might result in, if you like, an even-handed approach to both union and non-union employees is not to the point. The thing is that the union members and/or unions representing those union members can proceed to enforce the entitlements that are created by the impugned clause in respect of union members but not in respect of non-union members, and it is the existence of that entitlement in this clause which is at the heart of the fact that it is objectionable.
PN272
As I say, in Accurate, what one had to do is to say these fees that were being sought from - through a direction in the relevant clause to employers to direct that all employees pay the unions a particular fee and, if subsequently demanded to the union on behalf of the employees, it wasn't until one looked at what conduct occurred or was proposed to occur in the field, that is, that employees that were members or subsequently became members, would have, effectively, part of their fee returned to them. It wasn't until you looked at what the consequences of the clause were, if you like, down line in operation that gave rise to the fact that there was a different treatment between union and non-union members.
PN273
In the Accurate case, although that seemed to be a given in terms of what was likely to be the factual situation, the Full Bench said that wasn't enough, because what you have got to do is to look at the actual clause. If one just looks at the clause in terms of what conduct it purports to require or permit or has the effect of purporting to require or permit, if you limit yourself to just looking at the clause, the clause on its face in Accurate didn't go far enough. We say that this clause is clearly, on its face, objectionable because it requires a differential treatment as between the employer's conduct in favour of union members as opposed to non-union members, and we say it is not to the point that the employer may provide similar entitlements to non-union members.
[11.05am]
PN274
THE SENIOR DEPUTY PRESIDENT: You raised as part of that the issue of enforceability. Is there authority for the proposition that its enforceability is relevant?
PN275
MR LINDEMAN: Enforceability in terms of looking at the question of whether it is objectionable?
PN276
THE SENIOR DEPUTY PRESIDENT: Yes.
PN277
MR LINDEMAN: I am not aware of any authority on that point, your Honour, no. Thank your Honour. Going to paragraph 3, it is submitted that the conclusions of Commissioner Laing referred to in the second paragraph 11 of the CFMEUs contentions were overtaken by the appeal decision in the Railway Salaried Officers Interim Award case. More significantly, the appeal decision, in fact, supports the employment advocate's position. The Full Bench found it unnecessary to deal with the arguments advanced by the appellant against what is contained in the quotation attributed to Commissioner Laing at first instance and which are here relied on by the CFMEU.
PN278
That case concerned a, quote, "members only award"; that is, it also defines the nature of WestRail's obligations by limiting it to union members. See paragraph 6 of the case. By way of contrast to that which was considered in the Railway Salaried Officers case, the impugned clause has general application and, therefore, cannot be assisted by considerations which apply to a members only award, as the Full Bench pointed out in paragraph 9 of the Railway Salaried Officers case:
PN279
If the award was not a members only award but the benefit of a particular condition was limited to union members, or an identified detriment was applied to non-union members, section 298K(1)(e) and section 298L(1)(b) would almost certainly be attracted and the award would be caught by section 298Y. Such provisions could properly be described as having the effect of requiring or permitting discrimination in the terms upon which employment is to be offered by reason of the persons' membership or non-membership of an industrial association.
PN280
And we have added the bold - the emphasis. We say that that statement by the full bench is totally consistent with the position that we are advocating in the present applications.
PN281
Going to paragraph 4:
PN282
Notwithstanding that the Employment Advocate has not relied on anything said by the full bench in SDA Dominoes, the Dial-a-Pizza decision, at paragraphs 15 and 19 of the CFMEUs contention ...(reads)... that was necessary to make the agreement certifiable.
PN283
The relevant section being 170LV(1)(b) of the Workplace Relations Act. Further:
PN284
After the full bench in Dial-a-Pizza had merely directed the parties' attention to Vice President McIntyre's decision in Print Q6068 of 11 September 1988 concerning exclusive representation by the CEPU, after noting that the objectionable provision considered by Vice President McIntyre was relevantly indistinguishable from the clause under its consideration, the parties amended the exclusive representation clause by inter alia removing the word "exclusive" from the clause.
PN285
The full bench in Dial-a-Pizza in respect of the amended clause at paragraph 27 concluded:
PN286
In our view, the amended clause 2.1 does not offend section 170LU(2)(a). We express no view as to the correctness or otherwise of the decision of his Honour, Vice President McIntyre, referred to above.
PN287
Going to paragraph 6:
PN288
The CFMEU argues that the "silence" in the amended clause in Dial-a-Pizza decision to "representation by other than SDA", did not make the provision objectionable.
PN289
Assuming, without conceding, that the decision of the full bench in Dial-a-Pizza established a rule of general application and/or that the CFMEUs characterisation thereof is correct, there is nonetheless no syllogistic or logical argument which converts the CFMEUs view of the Dial-a-Pizza decision into something to support its case.
PN290
The mere fact that the insurance provision is silent as to the employer's right to provide equal entitlements to non union members as must be provided to union member employees, does not equate with what flows implicitly from the amended Dial-a-Pizza clause. It is submitted that the latter clause merely recognised in purely permissive terms the named union's right to represent the employer's employees: that is, it added nothing of substance to rights already enjoyed by the said union.
PN291
It follows that nothing of substance flows from the mere "silence" of any entitlement of some other union to seek representation over some or all of the same employees.
PN292
As to remedy, we say that the CFMEU also relies on the Dial-a-Pizza decision as authority for the proposition that the Commission may amend the insurance provision by varying it. This submission is misconceived, given that the full bench in Dial-a-Pizza were concerned with an entirely different application, and hence, as indicated in paragraph 8 in that decision, the full bench was obliged under section 170LV:
PN293
... to give the person who made the agreement an opportunity to take any action that may be necessary to make the agreement certifiable.
PN294
In other words, the parties there were in the process of actually writing, or able to rewrite their agreement, because all parties that were concerned in the agreement were before the Commission to seek its certification. That is not the situation here, of course, because each of the relevant agreements has been certified, and we say certified with clauses that offend the freedom of association provisions.
PN295
So, by way of conclusion we say that in the circumstances, for the reasons raised on behalf of the Employment Advocate in his contentions of fact and law and its reply, the Commission ought to be satisfied as follows:
PN296
(a) That the Employment Advocate is authorised to bring this application. Refer to the section. I do not hear any argument to the contrary, your Honour.
PN297
(b) That the provision in the certified agreements obliges employers to "ensure all union members covered by this agreement against ..." etcetera, is an objectionable provision so far as it operates to a require or permit, or to require or permit, or have the effect, or purport to have the effect of requiring or permitting conduct that would contravene this Part. Going to the relevant sections referred to.
PN298
(c) That the conduct imposed on the employers by the imputed clause will injure employees, alter the position of employees to their prejudice and/or discriminate against employees in the terms and conditions on which the employer offers to employ them. Going to the relevant sections mentioned.
PN299
(d) That the conduct is carried out because the employees are not or do not propose to become members of a union, and therefore is a prohibited reason. Again, within section 198L(1).
PN300
(e) That this application having been made by a competent person, and on the Commission being satisfied as to the matters contained in (b) to (e) inclusive, the Commission must vary the agreement so as to remove the objectionable provision. Section 298Z(3).
PN301
I should just say this. That the CFMEUs contentions as to remedy do not propose a variation alone. Your Honour, if you go to paragraph 24 on page 6, the final paragraph of the CFMEUs contentions, you will see the proposed clause set out there. It shows that the words "union members" need to be deleted, and to be substituted by the word "employees."
PN302
So the fact that what is being proposed, and indeed what would be required to achieve CFMEUs ends, requires one not only to take out something which is said to be objectionable, but to substitute it with something else. It means one doing more than seeking to - it has the effect of writing a condition, rather than varying it, we would say.
PN303
THE SENIOR DEPUTY PRESIDENT: You could just take out union members, couldn't you?
PN304
MR LINDEMAN: Mm?
PN305
THE SENIOR DEPUTY PRESIDENT: Couldn't you just take out union members?
PN306
MR LINDEMAN: If you remove the words "union members", the clause where the employer will insure all covered by this agreement, the problem, your Honour, is that it extends the operation of a requirement, and would have in effect the same - would operate in the same way as being contended by this amended clause: and that is it actually requires the Commission to write something into the agreement which is not there.
PN307
THE SENIOR DEPUTY PRESIDENT: But, I mean, do we care about that? Because we are after all removing a provision that is there.
PN308
MR LINDEMAN: No, we are removing something that is objectionable. We would say the objectionability in this case really attaches to the whole clause, and therefore the whole clause needs to be removed. We say that an attempt to rewrite it does not fall within what is provided in 298Z(1), which provides that where on application by a person mentioned in - no, it is (3):
PN309
That a certified agreement contains objectionable provisions the Commission must vary the agreement so as to remove the objectionable provisions.
PN310
And it is submitted that one does not remove the objectionable provisions by altering it to read something else. One removes it by taking it out.
PN311
THE SENIOR DEPUTY PRESIDENT: Is that because you say the objectionable provision is the whole clause?
PN312
MR LINDEMAN: Yes.
PN313
THE SENIOR DEPUTY PRESIDENT: Yes.
PN314
MR LINDEMAN: Thank you, your Honour.
PN315
THE SENIOR DEPUTY PRESIDENT: Who is next? Are you next, Ms Gooley, necessarily, or have you got a - - -
PN316
MR GOOLEY: I don't know, your Honour.
PN317
THE SENIOR DEPUTY PRESIDENT: I think you might want to go later, might you not, after you have heard all the others who - - -
PN318
MR GOOLEY: That might be sensible, your Honour.
PN319
THE SENIOR DEPUTY PRESIDENT: - - - it seems to me, give support to the Employment Advocate's position.
PN320
MR GOOLEY: Yes, your Honour.
PN321
THE SENIOR DEPUTY PRESIDENT: Mr Peters.
PN322
MR PETERS: Thank you, your Honour.
PN323
THE SENIOR DEPUTY PRESIDENT: Let me turn up your submission, as part of this document I have been provided with.
PN324
MR PETERS: You will find that in the Employment Advocate's submission under tab 3, I think that is.
PN325
THE SENIOR DEPUTY PRESIDENT: Yes, I have got it. Thank you.
PN326
MR PETERS: Your Honour, in terms of the Employment Advocate's opening address, I am grateful to his comments in terms of adopting some of our submission. I would like to just clarify, though, that clause 7 of our submission, I would like to remove that clause in terms of the CFMEU faxed us a document which was, with no disrespect intended, inaccurate insofar as it was a '95 document. Because it was faxed, I also couldn't read the Print number. And then, of course, my argument that a '95 document could not be valid under a '97, or a '96 Act at clause 7, is removed.
PN327
THE SENIOR DEPUTY PRESIDENT: So, what are you doing? You are removing the whole para, or the last sentence?
PN328
MR PETERS: Look, the whole paragraph, your Honour, does not - it would only be valid if it was earlier than the Act itself. Otherwise, your Honour, our submission is similar, as has been mentioned by the Office of Employment Advocate, to the Office of the Employment Advocate, and to my friend from VECCI.
PN329
We have listened carefully to the submission, and without belabouring the point to any great extent, we notice of course, in our view, that 298Z part 5 is the important area to emphasise some of what the Office of Employment Advocate has just said: and that is the issue concerning both - and if I read it:
PN330
An objectionable provision being a provision that requires or permits or purports to require or permit -
PN331
etcetera. In our view, the issue is permission. And in such a case an employer should be guided by what is at the end of the day a statutory document, or a certified document, in the view of an agreement. So, therefore, reading that particular provision that has just been referred to in terms of the clause for insurance to union members, does permit an employer to act according to the agreement.
PN332
Now, whether or not that in the end would mean that an employer has acted in appropriately, would be for the Commission to hear, in our view, at another time. But an employer should be guided by the agreement, and can be, in our view.
PN333
THE SENIOR DEPUTY PRESIDENT: And the Act.
PN334
MR PETERS: Yes. No, I appreciate, and the Act. I don't say that if they did, that they would be right. And there is precedent, as I understand it, before the Commission to say that an agreement, even certified by the Commission, can be wrong in some of its clauses. What I am saying is there is an opportunity for an employer to, as we put it at clause 9 of our submission, act in such a way as to discriminate against non union employees.
PN335
THE SENIOR DEPUTY PRESIDENT: But an employer cannot just rely on a certified agreement, can they?
PN336
MR PETERS: No, but the object in terms of 298Z part 5, in our view, your Honour, is that permission is granted in the objectionable provision. Now, whether or not that would be found later to be incorrect, is not, in our view, the fact. We would submit, without any form of incrimination, that there would be employers in this 155 group that are not insuring non union members by virtue of their reading of the agreement. And if that is the case, the permission was granted by the agreement.
PN337
THE SENIOR DEPUTY PRESIDENT: Well, that is a submission, isn't it? That is a submission you make?
PN338
MR PETERS: Well, yes, it is, your Honour. Other than that, the Dial-a-Pizza case, clearly the Office of the Employment Advocate has already indicated that we see that case differently than the CFMEU does, certainly, and I would not belabour that point.
PN339
The only other submission that I would suggest is, as to the meaning of the word "provision". And if we look at - clearly that is a matter for your Honour to decide - but if we look at the submission of the remedy by the CFMEU, we would submit that the removal of a word, union members, does not remove a provision. We would suggest the provision is the clause. There is a provision for insurance.
PN340
Now, I am not sure if your Honour wants me to go to this in any great length. I am happy to, but in the process - certainly as I understand it, in the process of reaching an agreement, an employer would in most cases boil down, if you like, the costs of that agreement, so that the overall cost of employing people under the agreement is taken into account in the managing of that employer's business.
PN341
We would submit also that an employer would consider each of these provisions as a cost in their totality, and therefore some of the employers, if in fact they are not insuring non union members, may be doing that for a variety of reasons: and one of those is that they have not accounted for that cost.
PN342
All of this boiled down again is that it is not, in our view, the words "union members" that are the provision, but the whole of the clause. So we agree, as we have said in our submission, that if your Honour finds that this is an objectionable provision, that the whole of the provision should be removed. Thank you, your Honour.
PN343
THE SENIOR DEPUTY PRESIDENT: Mr Eberhard.
PN344
MR EBERHARD: Your Honour, very quickly, VECCI makes no submission as to whether or not the Commission should find or should not find whether each of the clauses in question contains an objectionable provision. However, we would submit that should the Commission find that each of the clauses in question contains an objectionable provision, then VECCI would submit that the objectionable provision must be removed.
PN345
PN346
PN347
THE SENIOR DEPUTY PRESIDENT: Is anybody aware of any other, apart from those Ms Gooley represents, that they have that I have not mentioned?
PN348
MR LINDEMAN: The CFMEUs have not been marked, I don't think.
PN349
THE SENIOR DEPUTY PRESIDENT: I know. I am saying those apart from those Ms Gooley represents, which we will come to in a minute. Yes.
PN350
PN351
MS GOOLEY: Your Honour, in relation to that, we rely on those submissions and don't intend going through them in any detail. The first issue I wish to address, and it is sort of taking it in reverse, is the question of remedy in terms of whether the Commission has power to, as opposed to deleting the entire clause, either blue line the clause or vary the clause. In doing that, I would refer you to a decision of a Full Bench of the Australian Industrial Relations Commission. This was an application under 298Z for removal of a seniority clause and it was heard by Munro, Senior Deputy President Polites and Commissioner Hodder.
PN352
In that decision, and, relevantly, I take you to page 8 of 10, the Full Bench had to determine whether, in fact, the whole clause was objectionable, whether, in fact, they could vary the clause so as to remove those objectionable provisions and retain the rest of the provision in terms of what were the other elements to it. I take you to paragraph 41 of that agreement, in which the Full Bench says:
PN353
It follows an avenue that is inconsistent with both the arbitral history and the main function of clause 25(a) to characterise the subclause in its entirety as a preference clause. We consider that the union membership determinant that is a part of the existing scheme of the provision made in subclause 25(a), although incidental to it, may be removed without setting aside the subclause in its entirety. The effect will be achieved by striking words from clause 25(a) so it reads as follows: -
PN354
We think that is authority, your Honour, for the proposition that in determining, you must look at the clause as a whole. You can determine that parts of the clause are objectionable and remaining parts are not. I don't think there are any submissions before this Commission that the provision of insurance for employees is, in itself, objectionable. The matter complained of is the allegation that the clause in some way limits that provision to union members only. We have put forward a particular variation. Just striking out the word "members" would still make the clause make sense, and would - - -
PN355
THE SENIOR DEPUTY PRESIDENT: Union members, is it?
PN356
MS GOOLEY: Yes, union members, and leaving it that it is "for all" would certainly make the clause a meaningful clause. In furtherance of our submissions that the powers of the Commission when dealing with variations to remove provisions is much broader than is suggested, or has been held to this date by Vice President McIntyre, I take you to a decision that deals with the removal of an ambiguity or uncertainty in an agreement while not dealing with a 298Z application, your Honour, but you would be aware that the words in 298Z say you must vary the agreements so as to remove the objectional provisions.
PN357
In 170M - let me just find it - MB(6) my friends are telling me, the words are:
PN358
The Commission may, on application, by order vary a certified agreement.
PN359
So we have got the same words. You can vary the agreement. In the matter before the Full Bench, headed by Vice President Ross, Senior Deputy President O'Callaghan and Commissioner Foggo, there was a question of whether a certified agreement was ambiguous or uncertain, and the Commission in that case, having decided that there was ambiguity to to remove the ambiguity.
[11.33am]
PN360
I will take you to paragraph 115 on page 17 and 32. Have said:
PN361
We have decided to vary the agreement pursuant to 170MD(6) of the Workplace Relations Act to give effect to what we regard as ...(reads)... to insert the following words: The calendar in this agreement -
PN362
And then they insert into the agreement a clause that was not in the agreement at first instance. So the power to vary, to remove ambiguity, the power to vary to remove objectionable provisions, we say, is a broad power. It is a power that enables you to, at its broadest, to remove and substitute words into the clauses we propose. Or as was done in the 298Z matter I referred you to, allows you to blue pencil the agreement, does not require that you remove the entire clause. You are only required to address yourself to the objectionable provision.
PN363
The Act uses the word "provision", not "clause". Therefore, you must focus on what is the - if there is an objectionable provision in the agreement, what is that objectionable provision. The position that has been put forward today is that that objectionable provision is that it is - that it is limited to union members. Then if you were to determine that against our primary submission, which is that it is not an objectionable provision, we say you can do that without removing the clause as a whole.
PN364
Contrary to the submissions of the AI Group, we say that that in the circumstances of a certified agreement is absolutely appropriate, otherwise the removal of the entire clause would be a windfall gain to employers who in fact consented and agreed to the terms of this agreement, because they would then have no obligation to provide insurance to anybody.
PN365
The current agreement provides a minimum entitlement for union members to insurance. The Act provides under 298K that an employer must not discriminate in the terms on which it offers employment. So any employer out there who is currently not providing the equivalent benefit, or better. I might get into trouble with that "better", but the equivalent or better to non union members is in breach of the Act, an enforceable right on those people's part enforceable under 298K of the Workplace Relations Act. Any non union member not currently receiving non insurance in these circumstances has a remedy.
PN366
So that question you raised with my friend before, as to whether enforceability - in this circumstance the very inclusion of the clause we have put into this agreement creates an enforceable right for both union members and non union members to insurance.
PN367
THE SENIOR DEPUTY PRESIDENT: Is that only the case, though, if the provision is not objectionable? Because if it is objectionable, the provision is void, is it not?
PN368
MR GOOLEY: That is right, your Honour. That is correct. Though it is void - well, what it is, your Honour, that gets us up into the High Court decision in a CFMEU case and another mining company - it might have been Gordonstone - which suggested that a certified agreement exists as an agreement, and there may be rights created at common law. And then you have the agreement as certified.
PN369
So it may be an issue as to whether the terms are enforceable outside of the Workplace Relations Act and exist at common law.
PN370
THE SENIOR DEPUTY PRESIDENT: It may also beg the question of what is the provision: is the void part the union members.
PN371
MR GOOLEY: What, the provision?
PN372
THE SENIOR DEPUTY PRESIDENT: I just put that rhetorically.
PN373
MR GOOLEY: Yes, that is right, your Honour. Now, we say, your Honour, that if the submissions that have been put forward to you in relation to this clause were to be adopted, it would, in effect, mean that all the terms of members only awards would be voidable. In the case that was considered by the full bench, they were looking at the scope clause, as I recall, and went on to say, well, that is not an objectionable provision. Just bear with me while I find the decision.
PN374
It was initially considered by Commissioner Laing, and then went on appeal. In the appeal, of course, the full bench held that members only awards were not in themselves objectionable. It looked at a particular clause in the award which was, in effect, the scope clause. And they did say - and the Employment Advocate is quite right in their submissions - they did say in that decision that the fact that it was a members only award did not protect every clause that might be in a members only award from the application of 298Z.
PN375
They said if an award was not a members only award, but the benefit of a particular conditions was limited to union members, or an identified detriment was applied to non members. They didn't say it was 298K and they were attracted, but they say most certainly would be attracted, and the award could be caught by 298Y.
PN376
A members only award by its very nature sets down terms and conditions for union members only. They set wage rates, they set all the other general terms and conditions. If the Employment Advocate's submission is correct, then each one of those clauses is objectionable, because each one of those clauses only provides an entitlement to union members. It provides no entitlement under the award to non union members.
PN377
We say that the same logic applies to this clause. What this clause does, is it says you will provide this for union members. It does not contain - very importantly, it does not contain anything about what is supposed to happen to non union members. It does not say, you shall provide this to union members only. If it said, you shall provide this to union members only, then to comply with the agreement, the employer would have to discriminate.
PN378
To comply with the current agreement does not require the employer to discriminate. It does not say anything to the employer about non union members. And we think that is a significant difference, in terms of the clauses that have been considered before under objectionable provisions, and the decisions. My friend wants to imply into the agreement: he says it is a logical conclusion that it requires discrimination. We say it is not a logical conclusion that it requires discrimination.
PN379
We think the question of, would the employer be in breach of any Act, any law, any agreement, if it provided the same benefit to non union members, is a reasonable question to ask. In fact, in - I only have one copy of this, your Honour, but it is the Transport Workers, Print S7276. I am not sure whether that is in the Employment Advocate's list. It is the Employment Advocate v Transport Workers Union. I think it is there - yes, it is. It is under tab 4.
PN380
The Commission in that case, at paragraph 23, was considering the clauses in the Media and Entertainment and Arts Alliance agreement about requiring the written consent of the performer or of MIA in terms of the dubbing of the performer's voice into the English language. Vice President McIntyre, I believe it was, on that occasion said:
PN381
On the other hand, I do not think the impugned words in the acronym in the post synchronisation clauses are objectionable. The clauses including the words `do not require or permit' etcetera, the producer to say to a performer ...(reads)... I am permitted to deal only with MIA'.
PN382
What we say in this case is an employer could not say to a non union members, "I am not permitted to offer you insurance; I am only permitted to offer that to union members." So we think that question about what the employer is able to do, is relevant. And we think it is clear on the face of it that the agreement in no way requires the employer to discriminate against non union members.
PN383
We say that the observations of Munro J, when he was considering the certification of the Klout Engineering Agreement - I have a copy of that for you, your Honour. Again in that case, Munro J was considering the issue of whether he should certify agreements. He was considering the implications of 298Z in terms of the Act. If I take you to paragraph 14, where in what I have always considered very nicely expressed language, Munro J recanted from his view that if it looked like a duck, it must have been a duck, and decided that, in the middle of that paragraph:
PN384
I have exercised the power under 170LU(2)(a) and section 100LT in ways that it reflects too much intolerance of the right of parties to agreements to formulate in this case union rights facilitation clauses ...(reads)... simply because a suspicion springs to the mind of the reader.
PN385
We say in this instance the words of the clause are clear. They do not offend the Act. Therefore, we submit that you should not - you should dismiss the application of the Employment Advocate. In the event that you find they are objectionable, we rely on our submissions in terms of your powers in relation to varying the agreement, which we submit is a broad power. Your power, though, to vary it is to remove the objectionable provisions.
PN386
The wording of the Act does not say remove the entire clause in which the objectionable provision exists. The objectionable provision that has been identified has been the requirement in the clause that the insurance be offered to union members. That can be removed without upsetting the clear intentions of the parties to the agreement. Thank you, your Honour.
PN387
THE SENIOR DEPUTY PRESIDENT: Mr Lindeman.
PN388
MR LINDEMAN: If I can address the Gordonstone case firstly, your Honour. It has been our respectful submission that that case does not assist the CFMEU. It is most obviously able to be concluded that that is the case by looking at paragraph 41, and having a look at the fact that what actually occurred was a mere deletion of some words without substituting other words. It is submitted that what is necessary, what is sought, is more than a mere deleting of some words. What it is sought to do is to delete some words and to add the word "employees".
PN389
A couple of other observations in the case are helpful, in my respectful submission. If you go to paragraph 35, and to about mid-way, where the Commission says:
PN390
In our view, the provision in sub-clause 25(a) therefore requires or permits conduct that would result in dismissal of an employee for the reason that the employee is not a member of an industrial association.
PN391
THE SENIOR DEPUTY PRESIDENT: Sorry, which paragraph are you in?
PN392
MR LINDEMAN: Sorry, I am in paragraph 31, about half-way through it.
PN393
THE SENIOR DEPUTY PRESIDENT: Yes.
PN394
MR LINDEMAN: I will say it again:
PN395
In our view, the provision in sub-clause 25(a) therefore requires or permits conduct that would result in the dismissal of an employee for the reason that the employee is not a member of an industrial association. Sub-clause 25(a) is to that extent at least an objectionable provision. Accordingly, the Commission is obliged to remove at least that objectionable provision and constituent of sub-clause 25(a).
PN396
Again, if one goes back to paragraph 41, which sets out the clause, you can see that that is what his Honour has done. By simply removing - leaving intact the last in/first out type provision, but removing from the provision the effect of that clause - the effect of that provision insofar as it attaches to membership of an association.
PN397
Again, going over to paragraph 37, the final sentence there is relevant:
PN398
However, there is no source of power in section 398Z to renovate them if they do not need to be removed.
PN399
We submit that what is sought to be done by the CFMEU here is to renovate the clause, rather than to remove it. Then paragraph 38:
PN400
In our view, it is necessary to determine whether sub-clause 25(a) can be amended in a way that leaves intact a duty on the employer to observe a last on/first off principle, while removing the objectionable constituents of it.
PN401
That sets out, if you like, the substance of what was sought to be done, and what was ultimately done. It is submitted that the objectionable provision was able to be, if you like, narrowed down to the words that attach to membership of an association. As a consequence this particular clause could be amended quite appropriately within the meaning of 298Z, without the need to remove the whole of the clause. Indeed, the effect of their Honours' decision is that the last on/first off principle was an important one historically, and it was deserving of being preserved in the particular agreement.
PN402
We say no similar analogy can be made between what was done in the Gordonstone case with what would be sought to be done by way of remedy here, and that is by effectively changing the clause. My learned friend says, look, there is a windfall situation that occurs if the Commission accedes to the Employment Advocate's submissions on remedy, that is, that you remove the whole of the clause. But as your Honour observed, if the clause if void - if it is objectionable it is void, and if it is void it is not enforceable in any event.
PN403
So the argument that there is some sort of windfall gain really does not travel terribly far, if in every other respect it is objectionable, as it would not be enforceable; any action on it would be unlawful. And that is the whole purpose of the introduction of the - or the amendments to Part XA to introduce the formula whereby the Employment Advocate could move in cases where he considered on review of agreements that had been certified that they were objectionable, that they be removed.
PN404
We say that really the arguments do not go terribly far in terms of the application of either the Gordonstone decision and/or the arguments based on some form of windfall gain.
PN405
Now, the references to the TENIX case which sought to compare section 170MD(6), that is, the power to vary to remove ambiguities, compared with what the obligation is under 298Z(3), we submit that the words are quite different when carefully compared. Because 170MD(6), apart from dealing with ambiguities, which is a different notion altogether to the concept of removing something which is void on its face, says that:
PN406
The Commission may on application of any person bound by a certified agreement by order vary a certified agreement - a) for the purpose of removing the ambiguity or uncertainty ...(reads)... however expressed that authorised an employer to stand down an employee.
PN407
When one compares that with the - firstly, it is entirely permissive, insofar as it says that the Commission may. If one compares that with 298Z(3), which says quite clearly - it is headed, the Commission must vary an agreement, which provides:
PN408
... on an application of a person mentioned in subsection (4) the Commission is satisfied that a certified agreement contains an objectionable provision, the Commission must vary the agreement so as to remove the objectionable provisions.
PN409
We say in addition to the fact that this provision is cast in mandatory terms, it is quite different in its effect insofar as it requires, in quite clear and explicit terms, a variation that results in removal of the objectionable provisions.
PN410
We say that the attempts to, if you like, resuscitate the arguments based on the Railway Officers case rely entirely on the proposition that the clause requires something to be done. But of course to focus on the proposition that the legislation in this part is only concerned with something that is required would be just entirely wrong, because the provision, quite clearly on its terms, says that a provision is objectionable if it requires or permits, or purports to require or permit, or have the effect of purporting to require or permit.
PN411
So we say that insofar as our friends say that the clause is not objectionable simply because it does not clearly on its face require, because it allows something else to be done, simply ignores the fact that on its face it may permit or purport to require or permit, or have the effect of purporting to require or permit.
PN412
THE SENIOR DEPUTY PRESIDENT: Is the difference between require and permit, must and may?
PN413
MR LINDEMAN: No.
PN414
THE SENIOR DEPUTY PRESIDENT: What is the difference then?
PN415
MR LINDEMAN: I think to interpret the word "permit" as must or may, certainly I am not aware of any authority that suggests that that is the case. One would have thought - - -
PN416
THE SENIOR DEPUTY PRESIDENT: Well, why do you say it is not? I am not citing any authority either, but you say no. Why do you say no?
PN417
MR LINDEMAN: Well, the term "permit" is a term of art. One finds it in a broad range of legislation, and it has been interpreted in - as used in many different situations, to mean not only the act of allowing, but to have associated with it the degree of onus that flows from the word "permit".
PN418
I was in a case only last week, this time last week, which dealt with permitting - an employer permitting drivers to drive contrary to core hour driving arrangements under the Road Traffic legislation. And looking at the cases of permitting - I do not have them to hand, but there is a large body of case law, both general and specific to log book type cases. But in substance, what the main authority on which I relied said was that it introduced not only the concept of the employer having failed to have done something, it goes into the state of knowledge that is necessary, and what have you, in order to characterise a failure when one is looking at breach.
PN419
In the case in question, they said that that characterisation was relevant to require proof of some knowledge, or some active participation beyond purely negative things. So it is a terms of act, in my respectful submission, when it is used, the word "permit". And I do not think it can be simply equated with may or shall - shall or may, in the terms it has been suggested, with all due respect.
PN420
THE SENIOR DEPUTY PRESIDENT: Can you provide me with authority on that?
PN421
MR LINDEMAN: I can give you a list of cases that deal with require and permit, if your Honour pleases. Would that be all right within, say - - -
PN422
THE SENIOR DEPUTY PRESIDENT: Within the next week, would be fine.
PN423
MR LINDEMAN: Yes, thank you. I should say this, that in relation to any windfall gain, it needs to be said that it is always open to the parties to seek a variation of the certified agreement, to correct any consequence that might flow, or they see flowing from a finding that the clauses were objectionable. So it is not the case that the door is essentially closed, in any event.
PN424
Parties to agreements, like everyone in this society, is presumed to know the law. If these provisions are objectionable, they are void, and they ought not be seeking to put clauses into agreements that are void. It has been suggested that the employer should not get a windfall gain: neither should those advocating the case on behalf of employees broadly. And even if it extends beyond the people they purport to represent, they should not be getting a windfall either, for some of the reasons Mr Peters mentioned.
[12.01pm]
PN425
So, in any event, as I say, this is not a case where the parties are without remedy consequent on any removal of the clause in its entirety. It is suggested to me that I should remind your Honour that the railway officers' case, of course, was dealing with a union members only award and, indeed, one of the central points in that case was whether or not it was possible to make a union members only award. It is suggested that if we are correct in our characterisation of these impugned provisions as being objectionable that it would result in the clauses that were considered in the railway officers' case to all be objectionable, but that turns on whether or not it is possible to, in fact, bring down an award which applies only to union members and that was fully argued in the railway salaried officers case and decided in favour of the fact that it could be, if that is the case, as a matter of law, that one can bring down or, rather, fix awards that apply to only one class, don't extend as do the clauses with which your Honour is concerned, that there are general applications as we have already said, then, as I say, there can be no real comparison between the two we say and the distinguishing difference is the fact that one deals with a defined class, the other is a general application.
PN426
THE SENIOR DEPUTY PRESIDENT: Hang on, I don't understand that argument. What are you saying?
PN427
MR LINDEMAN: It is put against us that the types of clauses that were allowed in the railway salaried officers case, that is clauses that deal with only union members or provide terms and conditions for only union members on their face must be objectionable under part VIA, but we say that that is answered by one of the very questions that were central to the railway salaried officers case and fully argued there and that is as to the competence of the Commission to actually make awards that only apply to a limited class such as union members only and contrary to the submissions that were made, that it wasn't possible, the Commission as constituted in the railway salaried officers case determined that it was.
PN428
That being the case, it is submitted it is not possible to simply rely on the claim that clauses of the type that were approved in the railway salaried officers case, albeit to a limited class, would be objectionable, because they have got to be read in terms of their limited application. We are concerned with division 2 agreements which apply by virtue of section 170M(1)(b) to all persons whose employment is at any time when the agreement is in operation subject to the agreements, section 170M(1).
PN429
THE SENIOR DEPUTY PRESIDENT: What are you reading?
PN430
MR LINDEMAN: I am reading from section 170M(1), persons bound by division 2 cases.
PN431
THE SENIOR DEPUTY PRESIDENT: 170M(1)?
PN432
MR LINDEMAN: 170M(1), persons bound.
PN433
THE SENIOR DEPUTY PRESIDENT: Yes.
PN434
MR LINDEMAN: We say that the agreements in question are division 2 agreements and section 170M(1) tells us, amongst other things, who has the benefit of those agreements. We say that these types of certified agreements are by virtue of section 170M(1).
PN435
THE SENIOR DEPUTY PRESIDENT: Why do you say section 298Z only applies to division 2 agreements?
PN436
MR LINDEMAN: No, no, we are not saying that. We are saying that the agreements which you are dealing with are division 2 agreements, of general application, in contradistinction to the railway salaried officers award which was being sought to be certified which applied only to union members.
PN437
THE SENIOR DEPUTY PRESIDENT: Well, it is not your submission that section 298Z only applies to division 2 agreements?
PN438
MR LINDEMAN: No, not at all.
PN439
THE SENIOR DEPUTY PRESIDENT: It also applies to division 3 agreements, you would say?
PN440
MR LINDEMAN: Well, we say it is a provision of general application. On its terms, it in no way is limited to - - -
PN441
THE SENIOR DEPUTY PRESIDENT: So how does the railways case help you, then?
PN442
MR LINDEMAN: No, no, what we say is it doesn't help our friends in the manner in which they have suggested because, as I say, as we have submitted, that it is distinguishable because it is concerned with only making provisions for a limited class, that is union members only, so the award itself has no application to non-union members, as would be the case in respect of the agreements that are before you.
PN443
THE SENIOR DEPUTY PRESIDENT: But it would, wouldn't it, in your submission, because only the union members get the award provisions? The non-union members don't get the provisions of the award.
PN444
MR LINDEMAN: That is in contradistinction to here where the entitlement contained in the impugned clause is - well, the certified agreement as a whole applies to employees, irrespective of whether they are or are not union members.
PN445
THE SENIOR DEPUTY PRESIDENT: The non-union members do get the benefit of the provisions. They are just not bound to it, are they? They don't get the detriments. They get the benefits, don't they?
PN446
MR LINDEMAN: They don't get the benefits of this clause on its face. They could. The argument is that, well, the employer could simply provide them and that may or may not be the case, but the question is whether or not the employer is required or permitted by the terms of this clause to give a preferential benefit to one class over the other and we say that that is what it does do on its face, so we are certainly not, as was the case under 170MD, we are not here concerned with a mere ambiguity. We are concerned with the provision that is - and it is submitted that one would need to take great care to try to cross-fertilise any case concerning ambiguity which has its own formula to a provision that is alleged to be objectionable and the consequences that it is submitted that must by way of the imperative contained in section 298Z(3) be dealt with by removal. If your Honour pleases.
PN447
THE SENIOR DEPUTY PRESIDENT: Very well, I will reserve my decision.
ADJOURNED INDEFINITELY [12.10pm]
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