AG2002/4455, Transcript of Proceedings [2002] AIRCTrans 4111 (18 October 2002)

AUSCRIPT PTY LTD
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TRANSCRIPT OF PROCEEDINGS

O/N VT286
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

DEPUTY PRESIDENT LEARY

AG2002/4455

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LJ of the Act
by the National Union of Workers and Another
for certification of the Bunnings Victorian Distribution
Centre - National Union of Workers Certified
Agreement 2002

MELBOURNE

2.27 PM, THURSDAY, 3 OCTOBER 2002

PN1

MR T. LYONS: I appear for the National Union of Workers.

PN2

THE DEPUTY PRESIDENT: Thank you. Once again, there is no appearance by the employer who was properly notified but being an agreement I am hopeful there won't be a problem with it. Mr Lyons.

PN3

MR LYONS: In that regard, your Honour, we do note that there is or should appear on the file of the Commission a declaration of Mr Skermer, S-k-e-r-m-e-r, the East Coast Distribution Manager of the employer, attesting to the employer's agreement to the memorandum filed.

PN4

In this matter, your Honour, the union seeks certification of the agreement in the terms filed. We rely on the declaration of Mr Donnolly in making that application. We say that the requirements of the Act in relation to the application have been met. With the Commission's indulgence the copies of the documentation I have do not enable me to understand whether or not the application was lodged in time. I don't have Registry stamped copies.

PN5

THE DEPUTY PRESIDENT: I think it was.

PN6

MR LYONS: Yes.

PN7

THE DEPUTY PRESIDENT: I usually have a note if is not.

PN8

MR LYONS: Not having the benefit of one with the Registry stamp, your Honour, I am somewhat struggling on that score.

PN9

THE DEPUTY PRESIDENT: It is actually seven days out.

PN10

MR LYONS: Seven days out?

PN11

THE DEPUTY PRESIDENT: It was lodged on - the agreement was approved on 13 August and it was lodged on 13 September.

PN12

MR LYONS: Yes.

PN13

THE DEPUTY PRESIDENT: So it is about seven days out.

PN14

MR LYONS: I did out of abundance of caution, your Honour, seek the advice of the organiser before these proceedings and I am advised that the composition of the 19 employees who were engaged at the time of the vote has not altered so on that basis we would seek that you exercise your discretion to allow the application to proceed.

PN15

THE DEPUTY PRESIDENT: Yes, I am prepared to do that. The only concern I have is clause 19 which will possibly not come as any great surprise to you.

PN16

MR LYONS: Yes.

PN17

THE DEPUTY PRESIDENT: In the light of a recent decision which you should be quite familiar with.

PN18

MR LYONS: Indeed, your Honour. Just one moment, your Honour. Your Honour, clause 19 of the agreement which the - your associate indicated to me before these proceedings you would seek some submission in respect of - - -

PN19

THE DEPUTY PRESIDENT: Yes.

PN20

MR LYONS: - - - has been the subject of some recent consideration by this Commission and specifically whether or not a clause in that form is capable of inclusion in the agreement and an agreement including that clause is still an agreement for the purposes of 170LI of the Act.

PN21

If I can take your Honour in brief to the history in relation of this matter, the NUW has pursued clauses in this form in our certified agreements for some years, going back to 1996. There - in a decision earlier this year, his Honour, Deputy President Ives rejected a number of agreements that included that clause and also a clause providing for the payroll deduction of trade union dues.

PN22

The union's appeal from that decision was the subject of a decision by a Full Bench of this Commission in re Atlas Steels which is contained at print number 917092. The Bench in that decision found that a clause in a particular form providing for the provision of names and addresses to the union was not a matter that could be contained within an enterprise agreement.

PN23

THE DEPUTY PRESIDENT: It was somewhat differently worded.

PN24

MR LYONS: Yes it was, your Honour. A point to which I will turn. Perhaps if I could provide a copy of the Atlas Steels Full Bench.

PN25

THE DEPUTY PRESIDENT: I have got it.

PN26

MR LYONS: Your Honour has that?

PN27

THE DEPUTY PRESIDENT: Yes.

PN28

MR LYONS: Right. If I can take your Honour specifically - I am sorry, your Honour, I just need to - - -

PN29

THE DEPUTY PRESIDENT: 38 and 39 I think possible address the - - -

PN30

MR LYONS: Yes. 36 actually, your Honour, is where we would seek to start - - -

PN31

THE DEPUTY PRESIDENT: Yes.

PN32

MR LYONS: - - - where I would first draw your attention. We say that the Bench knocked out the provision that was in the Cadbury Schweppes Agreement which in summary, your Honour, which given your perusal of the agreement you are probably aware, did not contain the rider at the commencement of that clause that appears in the one before you. It says:

PN33

In order to facilitate the operation of and for the purposes of clause 8 and 9 of this agreement -

PN34

those words were not present in the matter that was before the Bench. Their Honours, or the Bench found that in the middle of paragraph 36, and I quote:

PN35

There is nothing in the agreement to suggest that the provision is relevant to any matter pertaining to the relationship between the employer and the employees. In dealing with the union fees clause we note that the clause operates upon and alters the employer's obligation to pay wages. The union notification clause does not operation on any obligation, whether established by the agreement or not pertaining to the employment relationship.

PN36

The Bench then went on to consider the circumstances under which the Deputy President had accepted the Cadbury Schweppes clause. His Honour having found that the agreement was incidental to the employment relationship and thus permitted under section 170LI.

PN37

The Deputy President identified dispute resolution consultation about industrial change and re-negotiation in making that finding and critically then, your Honour, the Bench said, and I quote and this is the conclusion at paragraph 37:

PN38

With respect, we do not think that conclusion was open. There is nothing in the terms of this clause which link its operation in any way to these other clauses. Furthermore, it is difficult to envisage circumstances in which the provision by an employer of employees addresses to a union would pertain to the relationship between the employer and employees.

PN39

And I end the quote there. The union in considering its position in the light of the Full Bench and Atlas Steels has adopted a position where we seek inclusion in agreements a clause in the form that appears before you.

PN40

THE DEPUTY PRESIDENT: And that is the same or similar to the clause in the Goodman Fielder?

PN41

MR LYONS: Yes.

PN42

THE DEPUTY PRESIDENT: Yes.

PN43

MR LYONS: And in summary, what the union has done is this, your Honour. We, in considering the Full Bench and Atlas Steels noted that their Honours did not reject the clause specifically before them and noted that there was nothing in the clause which related the clause to anything that pertained to the employment relationship elsewhere in the agreement.

PN44

The clause that is before you, unlike the one in earlier matters, does not provide for the union to seek names and addresses for whatever purpose the union chose. That right and obligation is specifically limited and is expressed as being only for the purposes provided by clauses 8 and 9 of the Agreement. Clause 8 of the agreement, your Honour, is the re-negotiation provision. Clause 9 is the industrial disputes procedure.

PN45

So, your Honour, we say that unlike the matter that was before the Full Bench in Atlas Steels the clause before you is one where the clause is directly linked to matters that pertain to the industrial relationship - I am sorry, the employment relationship and is an incidental or machinery provision associated with those employment related matters.

PN46

The fatal flaw in the original clause, your Honour, we say so much is evident by clause 37 - or paragraph 37 of Atlas Steels - what it was was, that there was nothing to link that clause to anything in the agreement.

PN47

THE DEPUTY PRESIDENT: And the concern was that it could be used for any particular reason. There was nothing specific.

PN48

MR LYONS: Yes, yes. There was nothing to link that to the employment relationship and in these circumstances, your Honour, the union is able to access that information for the purposes of renegotiating the agreement or for purposes associated with a grievance or industrial dispute being processed under the disputes procedure.

PN49

THE DEPUTY PRESIDENT: Yes.

PN50

MR LYONS: Now, in that respect, your Honour, we say two things. A number of things have happened since the consideration of this matter by the Bench in Atlas Steels. As your Honour will recall, much of the reasoning in respect of the construction of 170LI and Atlas Steels was based on an adoption of the remarks made in obiter by Merkel J in the trial at first instance in Electrolux.

PN51

In the interim, the Full Court has expressed a view in respect of the Electrolux matters. Put simply, his Honour, Merkel J in obiter remarks expressed a view that every single provision of a certified agreement must pertain to the employment relationship or be incidental or be a machinery provision to make that agreement certifiable.

PN52

That issue was not directly before him as your Honour will be cognisant of because that matter concerned a bargaining period issue.

PN53

THE DEPUTY PRESIDENT: That is right.

PN54

MR LYONS: But regardless of that, the Full Court, took up the cudgels in relation to that issue and in the Full Court decision expressed a view directly contrary to that of Merkel J and accepted the urging of counsel for the relevant unions that the proper test was to characterise the agreement as a whole. That is, if the agreement taken as a whole is one that pertains to the employment relationship that is an agreement which is clearly within the scope of 170LI.

PN55

As a consequence of that the NUW has a view that the clause in its original form does not make an agreement uncertifiable. However, we say it is not necessary for your Honour to go to those issues in relation to the Baines agreement because the agreement itself or clause 19 itself is clearly an incidental or machinery provision to a clause that otherwise relates to the employment relationship.

PN56

THE DEPUTY PRESIDENT: And I guess - I mean I have ak personal view about it.

PN57

MR LYONS: Yes.

PN58

THE DEPUTY PRESIDENT: And I don't necessarily agree with the decision in Goodman Fielder, but I don't want to create any more mud than is necessary.

PN59

MR LYONS: No. Perhaps if I could turn to that then, your Honour.

PN60

THE DEPUTY PRESIDENT: Yes.

PN61

MR LYONS: What has occurred since then is that the union sought certification in agreement with the clause in its original form.

PN62

THE DEPUTY PRESIDENT: That is without the reference to the other clauses.

PN63

MR LYONS: Yes.

PN64

THE DEPUTY PRESIDENT: Yes.

PN65

MR LYONS: And the amended clause.

PN66

THE DEPUTY PRESIDENT: Yes.

PN67

MR LYONS: And that has been the subject of two decisions. The matter was heard first by his Honour, Deputy President Hamilton and subsequently the same issue was before his Honour Deputy President Ives. The decisions were then issued in the contrary order to that, your Honour. That is Deputy President Ives' decision came down first.

PN68

THE DEPUTY PRESIDENT: Yes.

PN69

MR LYONS: In summary, his Honour, Deputy President Ives, continued or formed the view that he was bound by the Full Bench in Atlas Steels and was not able to certify an agreement in the old form, but was content to allow the clause in the form before you to proceed.

PN70

His Honour, Deputy President Hamilton, formed the view that Atlas Steels was authority for the proposition that no clause in this form could be accepted. Now we take issue with that and his Honour's decision is under appeal.

PN71

THE DEPUTY PRESIDENT: Yes, I am aware of that.

PN72

MR LYONS: His Honour, Deputy President Ives' decision is under appeal on the other question.

PN73

THE DEPUTY PRESIDENT: Yes.

PN74

MR LYONS: And it may well be that this matter is settled in the Courts at some point in the future, your Honour.

PN75

THE DEPUTY PRESIDENT: Yes, and the provision in this agreement will survive or otherwise depending on the outcome of those decisions. That is why I don't really want to issue another decision - - -

PN76

MR LYONS: No.

PN77

THE DEPUTY PRESIDENT: - - - just to create some more work for lawyers, basically.

PN78

MR LYONS: No. If I can provide the Commission an extract of some recently certified agreements.

[2.39pm]

PN79

THE DEPUTY PRESIDENT: Thank you.

PN80

MR LYONS: Does your Honour wish to mark this?

PN81

THE DEPUTY PRESIDENT: No, I won't.

PN82

MR LYONS: Okay.

PN83

THE DEPUTY PRESIDENT: They are prints of the Commission.

PN84

MR LYONS: Taking your Honour through the document, these are examples of agreements before the Commission in recent times which have included a clause in the current form that is before your Honour. The first is a agreement certified by his Honour, Deputy President Ives, in Select Harvest Marketing. And, as your Honour will see, the clause in the same form with the addition of one more clause - which I can inform the Commission is the introduction of change provision.

PN85

THE DEPUTY PRESIDENT: Okay. Yes.

PN86

MR LYONS: And the third and fourth pages are the certificate issued by his Honour, Senior Deputy President Watson, in relation to Metholatum Australasia Pty Ltd and NUW Comprehensive Agreement 2002. Your Honour will note, again, that clause 43.1 is in the same form as that which is before you - that certification, issued on 11 September 2002. The final three pages are an agreement certified some 10 days ago - sorry, two weeks ago, by his Honour, Deputy President McCarthy, in Panasonic Australia and National Union of Workers Agreement.

PN87

And your Honour will note, again, that clause 46 of that agreement - which is the final page of the bundle of documents - indicates that a clause in the same form as that before you was accepted. Now, while I am aware of your Honour's - shall I say, reluctance to contribute to a mess might perhaps be the briefest way of putting it.

PN88

THE DEPUTY PRESIDENT: We have enough views on it at the moment, don't we?

PN89

MR LYONS: But in summary I think it fair to characterise the current position as this: the majority of members of the Commission hearing agreements of this union accept the provision before your Honour. There are also acceptance by a number of other Commissioners. In the limited time available I was only able to extract those ones.

PN90

THE DEPUTY PRESIDENT: Yes.

PN91

MR LYONS: But I could have, with some more time, your Honour, produced any number of others. But I think the point is clear.

PN92

THE DEPUTY PRESIDENT: No, look, I am aware that there are others that have gone through.

PN93

MR LYONS: And so, with great respect to his Honour, Deputy President Hamilton, we say he is out of step with other members of this Commission and we say that that will be borne out at the hearing of the appeal. While we understand that should the Full Bench go against us on this question, that creates some problems for these agreements - - -

PN94

THE DEPUTY PRESIDENT: There will be some activity, no doubt.

PN95

MR LYONS: - - - which we would have to remedy, we don't seek the agreements be stood over and await that process. We do say that the union quite properly in this case has, on the basis of the Full Bench decision, amended a model clause it provides for agreements in order to comply with that. We have done so and the agreements ought proceed on that basis. Basically, unless your Honour has any questions - but we do rely, as I say, heavily on that and on the direction we say was provided to the NUW in particular but industrial parties in general by the paragraph of Atlas Steels to which I referred.

PN96

THE DEPUTY PRESIDENT: Yes.

PN97

MR LYONS: It cannot be said, with great respect to his Honour, Deputy President Hamilton, that Atlas Steels is authority for the position that no clause providing for the provision of names and addresses can be included in an agreement. Their Honours said it would be difficult to conceive of one but we say the one before you, indirectly relating itself to a matter pertaining to the employment relationship, has met the test for 170LI, notwithstanding the union's submission that the test applied by Atlas Steels is the wrong one.

PN98

THE DEPUTY PRESIDENT: Well, I understand what you are saying. I think I have indicated my view.

PN99

MR LYONS: Yes.

PN100

THE DEPUTY PRESIDENT: And I had proposed to allow the agreement to go through, including clause 19 on the basis that as the matter is currently being tested by appeal, if the appeal is unsuccessful and the clause is found to meet the test of the Act it will stay and if it is not, as you have indicated, there will be some necessary activity to be undertaken.

PN101

MR LYONS: Yes. I probably just bought myself a lot of work, your Honour, I suspect.

PN102

THE DEPUTY PRESIDENT: Yes. Yes. I guess - just, you know, an aside to the whole thing, it is all a little bit - perhaps contradictory is the appropriate word. We are, as members of the Commission, encouraged to leave parties to their own devices to reach agreement on all sorts of issues which they then have to present to us and we then tell them that they can't have that, which they have agreed. Now that seems a bit strange or maybe I am just out of touch with reality, I am not too sure which. But nevertheless, the agreement will be certified in the form that it has been presented.

PN103

MR LYONS: If the Commission pleases.

PN104

THE DEPUTY PRESIDENT: All right. On that basis, and having heard from Mr Lyon, I don't want to add to the, perhaps, confusion or inconsistency that is currently occurring in respect to this clause. My view is that it can be part of the agreement and I intend to include it. This is an application pursuant to section 170LJ of the Workplace Relations Act for certification of the Bunnings Victoria Distribution Centre National Union of Worker Certified Agreement 2002. The parties to the agreement are Bunnings Building Supplies Pty Ltd and the National Union of Workers.

PN105

The agreement satisfies the requirements of the Act and will be certified. An order will issue to take effect from today's date and remain in force until 30 June 2004. The agreement came into effect from 1 July 2002. That agreement is hereby certified.

ADJOURNED INDEFINITELY [2.49pm]