AG2001/8143, Transcript of Proceedings [2002] AIRCTrans 329 (6 February 2002)

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TRANSCRIPT OF PROCEEDINGS

O/N VT02149
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER BLAIR

AG2001/8143
AG2001/8120
AG2001/8122

APPLICATIONS TO TERMINATE
AGREEMENT (PUBLIC INTEREST)

Applications under section 170MH of the Act
by Australia Post for termination of various
agreements

MELBOURNE

8.35 AM, TUESDAY, 22 JANUARY 2001

AG2001/8143

AUSTRALIA POST ENTERPRISE AGREEMENT 1999-2001

Application by Australia Post
to terminate agreement (public interest)

MR P. RYAN: I appear on behalf of Australian Postal Corporation.

PN1

MR E. KEANE: I appear for the CEPU Communications Division.

PN2

MR A. WATERS: I appear for the Community and Public Sector Union.

PN3

THE COMMISSIONER: Now, the first matter, I think, is 8143 - no, hang on. There is the Australia Post Enterprise Agreement 1994-1996. There is the Australia Post Enterprise Agreement 1999-2001. There is the Australia Post Enterprise Agreement 1996-1998. So I would assume that we deal with the '94-'96 agreement first, Mr Ryan? No? I will be guided by you; you made the applications.

PN4

MR RYAN: Thanks, Commissioner. The first matter I think is 8143 - 2001/8143 and that is the setting aside of EBA 1 which is the Australia Post Enterprise Agreement 1992, and that application is made under section 113 of the Industrial Relations Act of 1988.

PN5

THE COMMISSIONER: According to this it is - well, according to the cover sheet, the application is 170MH.

PN6

MR RYAN: Yes. I think on the second we had two - I think that might be, without knowing the processes of the Commission or the Registry, Commissioner, I think it might have been put under that sort of legislative basis on the grounds that there had to be some sort of basis for the listing.

PN7

THE COMMISSIONER: Hang on, wait until I get my instructions. The explanation as to why it is referred to as 170MH is the case management system, apparently, of the Commission doesn't have the ability to refer back to the old Act and so the instructions were to have reference to the new Act, of course, 1996 as opposed to the 1988 Act. Now, the 170MH provision does provide for the setting aside of the agreement, so that is the appropriate provision in the 1996 Act. You said you made application under 111 - - -

PN8

MR RYAN: 113, the application to set aside - - -

PN9

THE COMMISSIONER: 113.

PN10

MR RYAN: - - - of the old IR Act.

PN11

THE COMMISSIONER: 1988.

PN12

MR RYAN: That is correct, Commissioner. I was going to try and explain during my submissions the basis for that.

PN13

THE COMMISSIONER: For the application or - - -

PN14

MR RYAN: For the application being made under section 113 of the old IR Act.

PN15

THE COMMISSIONER: Right. Well, you start your submission, Mr Ryan, and we will see where we go.

PN16

MR RYAN: Thanks, Commissioner. The application before the Commission, Commissioner, is made pursuant to section 113 of the Industrial Relations 1988 to set aside Australia Post's first enterprise agreement which the parties have referred to as EBA 1. EBA 1 was certified by the Commission on 8 October 1992 in accordance with section 134C of division 3A of Part VI of the Industrial Relations Act 1988, and the relevant print number is print K5329.

PN17

The duration of the agreement was specified as 8 October 1992 to 7 April 1994. Although there have been a number of changes in industrial relations legislation since the time that EBA 1 was certified, none of those changes have displaced the operation of the Industrial Relations Act 1988 insofar as EBA 1 is concerned. The Industrial Relations Reform Act 1993 commenced on 30 March 1994. Although the Reform Act repealed division 3A of the Industrial Relations Act 1988 relating to certified agreements and replaced it with a new certified agreement regime, section 35(2)(b) of the Reform Act specified that agreements certified under division 3A and in force immediately before the Reform Act's commencement date were to have effect as if the 1988 Industrial Relations Act had not been amended by the 1993 Reform Act.

PN18

In short, although the Reform Act 1993 introduced a new certified agreement regime, the EBA 1, which was still in force at the time, continued on foot under the Industrial Relations Act of 1988. Subsequent amendments to the Workplace Relations Act 1996 introduced by the Workplace Relations and Other Legislation Amendment Act 1996, or the WROLA Act, and the transitional provisions contained in the 1996 Act were not directed at agreements made under the 1988 Industrial Relations Act.

PN19

Section 134J(3) of the Industrial Relations Act 1988 provides that if a certified agreement remained in force until the end of the agreement, section 148 of that Act applied and the agreement continued in force. Therefore, EBA 1, which is an agreement made under the Industrial Relations Act 1988 prior to the commencement date of the Industrial Relations Reform Act 1993 on 30 March 1994, which was the date of the Industrial Relations Reform Act, the EBA 1 continued in force and in accordance with section - well, it continued in force in accordance with section 148 of the Industrial Relations Act of 1988.

PN20

Section 113 of the Industrial Relations Act of 1988 allows the Commission to set aside an award, including a certified agreement, made under section 134 of that Act. There are five grounds on which we are seeking to terminate EBA 1. First and significantly, the agreement is obsolete in that it has been superseded by later agreements, and in particular by the Australia Post Enterprise Agreement 2001 which was certified by the Commission as presently constituted on 20 December 2001 and the relevant print number is PR913151.

PN21

The most recent agreement, which is known as EBA 5, specifies at clause 20.2 that it replaces and wholly supersedes the four previous Australia Post Enterprise Agreements which includes EBA 1 which is the subject of this application. For convenience, Commissioner, I am happy to hand up a copy of the relevant clause of EBA 5.

PN22

THE COMMISSIONER: Thank you.

PN23

MR RYAN: I refer the Commission to clause 20.2 of that document. Secondly, the parties to EBA 1 who continue to have a presence in Australia Post have agreed during negotiations in respect of the new enterprise agreement - that is EBA 5 - that the Australian Postal Corporation will apply to terminate the previous four enterprise agreements with effect from the date of certification of EBA 5 and the unions will consent to such an application. That commitment is also set out in clause 20.2 of EBA 5.

PN24

Thirdly, no employee will suffer any detriment by the setting aside of EBA 1 because of protection of employment conditions provided by subsequent EBAs which have been approved by the employees and also the transfer of some of these conditions to the Australia Post awards.

PN25

Finally, it is desirable to formally set aside EBA 1 for reasons of certainty; that is, to avoid any doubt about the operation of EBA 1. Commissioner, for the reasons given, we seek that the Australia Post Enterprise Agreement which came into force on 8 October 1992 be set aside from 20 December 2001 which is the date on which EBA 5 came into operation and which is the same date that the parties to EBA 5 agreed should apply to the setting aside of the previous EBAs. If the Commission pleases.

PN26

THE COMMISSIONER: Mr Ryan, you said the application was under section 113.

PN27

MR RYAN: That is correct, Commissioner, of the old Industrial Relations Act 1988.

PN28

THE COMMISSIONER: What provision of 113?

PN29

MR RYAN: I just can't find the reference in front of me, Commissioner, but there was application to vary an award or set aside - application to vary an award, I think, under the old section 113 which - - -

PN30

THE COMMISSIONER: 113 in the - - -

PN31

MR RYAN: - - - old IR Act included a certified agreement.

PN32

THE COMMISSIONER: Yes, 1988 says:

PN33

Power to set aside or vary awards. The Commission may set aside an award or any of the terms of an award -

PN34

doesn't refer to an agreement.

PN35

MR RYAN: If I could refer the Commission to the definition clause, I think is 4.1.

PN36

THE COMMISSIONER: Okay, but then it deals with removal of ambiguity. The Commission must remove discrimination. Opportunities for parties to amend certified agreement. Opportunity for employer to remove discrimination from enterprise flexibility agreement. Variation of an award:

PN37

The Commission may on application by an organisation or person bound by an award vary a term of the award referring by name to an organisation.

PN38

I must say I cannot read in 113 where, other than discriminatory provisions, there is the ability to set aside the agreement under that provision. There is under 170MI, which is the operation of certified agreements. It says:

PN39

A certified agreement comes into force when it is certified during the period of the agreement for three months after that period it remains in force unless...

PN40

It goes on. Then it says:

PN41

...a period of the agreement has ended and the agreement is replaced by a new certified or by an enterprise flexibility agreement.

PN42

MR RYAN: Yes, I would have to get instructions on that, Commissioner. My instructions were that we should be applying under section 113 to set aside the award.

PN43

THE COMMISSIONER: Well, I hear that, but I must say - I mean, I am quite happy to give you the Act that I have got, but it doesn't, other than for discriminatory provisions and the removal of ambiguity, I am not aware in reading 113 that that is the appropriate provision.

PN44

MR RYAN: I actually didn't think I was going to get into trouble on section 113. I actually got provisions on the Industrial Relations - of the Act as amended by the Industrial Relations Legislation Amendment Act 1992. That was the Act that applied just prior to the commencement of the Industrial Relations Reform Act of 1993. Just according to my advice, Commissioner, that was the - we should be seeking to set aside the certified agreement under section 113.

PN45

THE COMMISSIONER: Section 111 doesn't provide the ability - see, I thought 111(1)(f), but that excludes certified agreements.

PN46

MR RYAN: The definition in the 1988 Act of an award includes a certified agreement.

PN47

THE COMMISSIONER: Well, that is right, but section 111(1)(f) specifically excludes certified agreements because 111(1)(f) says the Commission may set aside or vary an award excluding a certified agreement, so it is not available under section 111. I can't read in section 113 where it provides the ability to set aside a certified agreement.

PN48

MR RYAN: Well, it provides the ability to set aside an award, and if you look in the definition - if I could refer the Commission to section 4(1) of the Definitions, I think section 4(1) an award includes a certified agreement.

PN49

THE COMMISSIONER: So you are simply relying on 113(1)?

PN50

MR RYAN: That is correct, Commissioner.

PN51

THE COMMISSIONER: Okay. All right. Sorry if I threw a spanner in the works. Yes, Mr Keane.

PN52

MR KEANE: Thank you, Commissioner. In line with Mr Ryan's comments about the parties recognising and agreeing to an application to set aside enterprise agreement number 1 or the 1992-1994 agreement, the CEPU is in agreement with the application. Mr Ryan made that point in his grounds; I think it was point number 2, so we have no objection to this application.

PN53

I have also received, Commissioner, correspondence from the AMWU signed by Mr Whitehead, National Industrial Officer, in that he asks if the CEPU could appear for and represents the interests of that union in this and the other matters today. I have got a copy of that if you - - -

PN54

THE COMMISSIONER: No, I have got that, thanks. I was intending to draw the parties' attention to that as well as one from Mr Nadenbousch from the Association of Professional Engineers, Scientists and Managers, saying that they also consent to the applications.

PN55

MR KEANE: On this matter of 2001/8143 I have no further comments to make, Commissioner.

PN56

THE COMMISSIONER: Thank you. Yes, Mr Waters.

PN57

MR WATERS: Commissioner, similarly, as pointed out by Mr Ryan, we have agreed to the setting aside of this certified agreement and we have no objection to that proceeding.

PN58

THE COMMISSIONER: Okay. All right. In this particular matter, which is an application to set aside the Australia Post Enterprise Agreement (A693) print number K5329, the Commission is satisfied that the appropriate section is 113(1); that is, the Commission may set aside an award or any of the terms of an award, an award being defined as including a certified agreement. The setting aside is intended to take effect as from 20 December 2001. The Commission accordingly will issue the appropriate orders.

PN59

THE COMMISSIONER: Now, is the next one AG8120, Mr Ryan?

PN60

MR RYAN: Commissioner, just before that other matter is ended, I just thought I should bring it to the Commission's attention - and I apologise for not doing it earlier - there are other parties to EBA 1 which are not present here today.

PN61

THE COMMISSIONER: But they were notified?

PN62

MR RYAN: They were notified. I have got copies of the notices of the applications and notices of the listing, but they are not here to obviously give their agreement and there are four parties which are not a party to EBA 5. I think we had 12 parties to EBA 1 and we are now down to four parties in EBA 5. So there are four parties that as a result of amalgamations that have not given really their consent to the setting aside of EBA 1 which I thought I should bring to your attention, but they have been notified of the application and notified of the listing.

PN63

THE COMMISSIONER: Right. Well, if they choose not to - unless there is something that I am not aware of - - -

PN64

MR RYAN: Well, I was just - - -

PN65

THE COMMISSIONER: - - - if they choose not to turn up or to notify the Commission that they object to the setting aside of the agreement, then there is the process of appeal later on if they feel so aggrieved, but I wouldn't have thought so.

PN66

MR RYAN: No, okay, thank you, Commissioner.

PN67

THE COMMISSIONER: All right, Mr Ryan, is the next one 8120? That is again an application to terminate an agreement.

[9.00am]

AG2001/8120

AUSTRALIA POST ENTERPRISE AGREEMENT 1994-1996

Application by Australia Post
to terminate agreement (public interest)

THE COMMISSIONER: In this one it is the application to terminate the Australia Post Enterprise Agreement 1994/1996.

PN68

MR RYAN: That is correct, Commissioner. I was just wondering though whether it would be appropriate to join the two applications, 8120 and 8122.

PN69

THE COMMISSIONER: Right.

PN70

MR RYAN: Because the reasons in support basically of terminating both agreements are pretty well the same. Both agreements were made under section 170MH of the Workplace Relations Act 1996. The commitment to terminate both agreements was given in the current EBA, EBA5, so it was thought for the convenience of the Commission that it may be appropriate to join the two applications.

PN71

THE COMMISSIONER: Yes. Because both applications are identical in terms.

PN72

MR RYAN: Exactly.

PN73

THE COMMISSIONER: Yes. Fine. Do you have any objections to that Mr Keane?

PN74

MR KEANE: No objections, Mr Commissioner.

PN75

THE COMMISSIONER: Mr Waters?

PN76

MR WATERS: No objections, Commissioner.

PN77

THE COMMISSIONER: All right. We will join matters AG8120 and AG8122, both of 2001.

AG2001/8122

AUSTRALIA POST ENTERPRISE AGREEMENT 1996-1998

Application by Australia Post
to terminate agreement (public interest)

PN78

MR RYAN: Thank you, Commissioner. Commissioner, the application, of course, is to terminate both agreements pursuant to section 170MH of the Workplace Relations Act 1996. The commitment to terminate both agreements was given in the current EBA, EBA5. EBA2 came into force on 20 October 1994, and the relevant print number is A1126, with a nominal period of operation of 18 months and the relevant case number is C number 34636 of 1994.

PN79

EBA3 came into force on 18 April 1996, and the relevant print number is A1799, with a nominal period of operation of two years and the relevant case number is C number 31651 of 1996. Commissioner, both agreements, that is EBA2 and EBA3 were certified in accordance with section 170MA of the Industrial Relations Act 1988. This section, that is section 170MA, was inserted into the 1988 Act by the Industrial Relations Reform Act 1993, which commenced operation on 30 March 1994.

PN80

Both agreements were certified after the introduction of the Industrial Relations Reform Act, but before the commencement of the Workplace Relations Act 1996, and it would therefore be appropriate to describe them as Reform Act agreements. Section 170MI of the 1988 Act, had the effect that agreements such as EBA2 and EBA3, which were made under section 170MA, remained in force for a period of three months after the specified period of operation ended. After that period, which was 19 July 1996 in respect of EBA2, and 17 July 1998 in respect of EBA3, section 148 of the 1988 Act applied to EBA2 and EBA3.

PN81

The effect of this is that because neither of the agreements have been set aside, EBA2 and EBA3 have continued in force after those dates. The transitional provisions relating to certified agreements under the Workplace Relations Act in item 23 of schedule 8 of the Workplace Relations and Other Legislation Amendment Act 1996, which is the WROLA Act, make it clear that the Workplace Relations Act 1996 does not apply to Reform Act agreements.

PN82

The only exception is that they are to be terminated in accordance with section 170MH of the Workplace Relations Act 1996, rather than section 170MN of the 1988 Industrial Relations Act. Accordingly we are seeking to terminate both EBA2 and EBA3 under section 170MH of the Workplace Relations Act 1996, and the grounds for the application as follows. Firstly, both agreements are obsolete in that the Australia Post Enterprise Agreement 2001, print 913151, that is EBA5, specifies in clause 20.2, that it replaces and wholly supersedes the three previous Australia Post Enterprise Agreements, which includes EBA2 and EBA3, which are the subject of this application.

PN83

I am happy to hand up for the Commission's file a copy of the relevant clause in EBA5, if that is convenient.

PN84

THE COMMISSIONER: Thank you.

PN85

MR RYAN: Secondly, the nominal expiry date of both EBAs have well and truly passed, in the case of EBA5, the period is over five years and in the case of EBA3 the period is over three years. They are actually coming up to six and four years respectively, Commissioner. Thirdly, the parties to EBA2 who continue to have a presence in Australia Post, and the parties to EBA3, have agreed during negotiations in respect of the new enterprise agreement, that is EBA5, that the Australian Postal Corporation will apply to terminate the previous four Australia Post Enterprise Agreements, including EBA2 and EBA3, with effect from the date of certification of EBA5, and the unions will consent to such an application.

PN86

Fourthly, employees who are covered by EBA2 and EBA3 have been advised in the EBA5 agreement document, and as part of the consultative process conducted in relation to EBA5, that Australia Post will apply to the Commission to terminate all four previous Australia Post Enterprise Agreements, and no employee will suffer any disadvantage by terminating EBA2 and EBA3 because of the protection of employment conditions provided by EBA5. And as no employee will be disadvantaged by the termination of both agreements, in our submission, it is not contrary to the public interest to terminate these agreements.

PN87

Finally, it is desirable to formally set aside both agreements for reasons of certainty to avoid any doubt about the continued operation of these agreements. Commissioner, for the reasons given Australia Post seeks the Australia Post Enterprise Agreement 1994 to 1996, which came into force on 20 October 1994, and the Australia Post Enterprise Agreement 1996 to 1998, which came into force on 18 April 1996, both be terminated from 20 December 2001, which is the date on EBA5 came into operation and which is the same date that the parties to EBA5 agreed should apply to the termination of the previous EBAs. If the Commission pleases.

PN88

THE COMMISSIONER: Thank you. In these two matters, as in the previous matter, the Commission has received correspondence from Mr Nadenbousch from the Association of Professional Engineers Scientists and Managers Australia, indicating they have no objections to the applications currently before the Commission. And also correspondence from the AMWU indicating that the CEPU would be representing their interest in these two particular matters. Mr Keane.

PN89

MR KEANE: The CEPU has no objection to the application by Australia Post to set aside the Australia Post Enterprise Agreement number 2. And the Australia Post Enterprise Agreement number 3. Thank you, Commissioner.

PN90

THE COMMISSIONER: Thank you. Mr Waters.

PN91

MR WATERS: Commissioner, the CPSU, has no objection to the setting aside of either of the two agreements.

PN92

THE COMMISSIONER: Thank you. All right. In this matter there are two applications which have now been joined, that is AG8122 of 2001, and AG8120 of 2001, which are applications to terminate two enterprise agreements, one titled the Australia Post Enterprise Agreement 1994-1996, commonly called the Australia Post Enterprise Agreement EBA2. And the Australia Post Enterprise Agreement 1996-1998, commonly called the EBA agreement 3.

PN93

Both these agreements were certified in the Commission in 1994, in print L6168 and in 1996, print N1142. Application has been made under section 170MH to set aside both agreements. No objections have been raised by parties to the agreements to the application by Australia Post and accordingly both agreements will be set aside effective from 20 December 2001, which is the date in which EBA5, which is now commonly known, was certified. The Commission wishes you a good morning and stands adjourned.

ADJOURNED INDEFINITELY [9.10am]