BP2002/4782, Transcript of Proceedings [2002] AIRCTrans 4312 (31 October 2002)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 7, ANZ House 13 Grenfell St ADELAIDE SA 5000
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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

DEPUTY PRESIDENT HAMPTON

BP2002/4782

APPLICATION FOR INITIATION OF BARGAINING
PERIOD

Application under section 170MI of the Act
by National Union of Workers re notice of
initiation of bargaining period

ADELAIDE

12.08 PM, TUESDAY, 15 OCTOBER 2002

Continued from 18.9.02

PN204

THE DEPUTY PRESIDENT: Good afternoon all. Please be seated.

PN205

MR RICHARDSON: Good afternoon.

PN206

MR R. MANUEL: I appear as counsel for IGA. I'm not sure whether this matter is a continuation of a previous matter or is a fresh notification.

PN207

THE DEPUTY PRESIDENT: I think it is a continuation of previous proceedings.

PN208

MR MANUEL: Very well, and I appear with Mr G. GAVAN.

PN209

THE DEPUTY PRESIDENT: All right. Mr Richardson, you take no objection to leave being granted?

PN210

MR RICHARDSON: No objection, your Honour.

PN211

THE DEPUTY PRESIDENT: Yes, leave is granted, Mr Manuel.

PN212

MR MANUEL: Thank you, your Honour.

PN213

THE DEPUTY PRESIDENT: All right, Mr Richardson, you have sought the matter be brought back on.

PN214

MR RICHARDSON: Yes, thank you your Honour. Your Honour, I won't go back over the background to these matters other than to indicate that when we were last before you in formal proceedings the company indicate amongst other things it was assessing all of the options available to it as to the form of agreement it would be seeking with its clerical employees and subsequent to being last before you a meeting was convened as I understand, by Mr Shekka, the general manager of the company's operation.

PN215

That meeting was attended by all clerical employees that were present at work on 3 October and during the course of that meeting the company presented all employees with a draft document, a draft agreement which, on the face of it appeared to be an agreement which should it be approved by valid majority of employees, would be an agreement made pursuant to section 170LK of the act. Now, subsequent to that meeting on 3 October some 25 or so employees forwarded a letter to Mr Shekka, referring to the agreement and setting out a number of questions in relation to a ballot that was proposed to be held, or is proposed to be held on 18 October, that is Friday of this week. I seek to tender a copy of that letter.

PN216

MR MANUEL: No objections.

PN217

THE DEPUTY PRESIDENT: Thank you.

PN218

MR RICHARDSON: I apologise that it has been stapled to both yourself and Mr Manuel's.

PN219

THE DEPUTY PRESIDENT: I'm sure the resources of the Commission will extend to a staple.

PN220

MR RICHARDSON: The letter asks a number of questions in respect of the conduct of a ballot proposed to be held on Friday of this week and specifically the procedures by which the ballot would occur and I ask that that letter would be marked as an exhibit. I must admit I'm not sure what exhibit number we are up to.

PN221

THE DEPUTY PRESIDENT: We are up to NUW4.

PN222

MR RICHARDSON: Thank you.

PN223

THE DEPUTY PRESIDENT: I will admit that.

EXHIBIT #NUW4 LETTER RE BALLOT

PN224

MR RICHARDSON: Now your Honour, the letter signed by the employees sought a written response by Friday 11 October so that the employees could consider the responses. No written response was forthcoming from any officer of the company. However, I am advised that a meeting was held or convened by the company last Friday. That meeting was attended by Mr Bruce Jamieson of the company, a Mr Neil Hurcock and a gentleman whose surname I don't have but I understand that he appears in the Courtroom today, Mr Jonathon somebody, the new human resource manager. Mr Bands, your Honour, B-a-n-d-s.

PN225

THE DEPUTY PRESIDENT: Thank you.

PN226

MR RICHARDSON: I'm obliged to Mr Manuel. During that meeting the company verbally answered several, but we say not all of the questions asked, and left a degree of doubt in the employees' minds as to some of the specifics of the proposed ballot. If necessary, I intend to return to the proposed ballot. Fundamentally though, the union sought a re-listing of this matter because neither prior to the meeting on 3 October or at the meeting on 3 October did we say the company comply generally with the provisions of section 170LK and specifically sub-section 2 of that section insofar as it did not provide to employees a notice of intention to make agreement and within that notice it failed - well given that no such notice occurred, it also failed to comply with the provisions of section 170LK(4).

PN227

On Friday of last week and I believe, yesterday, the company did provide all employees with a letter which is dated 3 October which presumably it will now seek to rely upon as to compliance with section 170LK(2) and I would seek to tender a copy of that letter, and again I apologise for the lack of staples.

PN228

MR MANUEL: I have no objections to the tender of the document, however I would ask it to be described in neutral terms because my instructions are that it was in fact put up with the agreement on the date that is noted upon the document and so there would be disagreement from the parties on that basis.

PN229

MR RICHARDSON: Well, your Honour, I think Mr Manuel's objections brings us to the heart of the matter because the union has been informed by several of the employees that this letter was provided to him yesterday, or on Friday of last week, by Mr Jamieson and at the time it was provided to them Mr Jamieson indicated that it should have been provided or attached at the time that the agreement, or the proposed agreement was circulated on 3 October. Now, given the difficulties that the union has faced insofar as the company denies that the union has enrolled in this process it is difficult to bring before the Commission in this forum, witness evidence and rather than go at this stage to the substance of whether section 170LK(2) has been complied with, we would seek that the Commission adjourn these proceedings to IGA, that is to the premises of the company at the earliest opportunity to hear witness evidence as to when the notice, the purported notice was circulated to employees as well as make itself aware generally of the employees' understanding of the process. So I don't at this stage, press any further submissions, if the Commission pleases.

PN230

THE DEPUTY PRESIDENT: I will deal with the document first. I will admit the document which is dated on its face as 3 October 2002, the subject being the Enterprise Agreement Proposal and I will mark that as NUW5. I note that there is dispute between the parties as to when that document was introduced into the arrangements.

PN231

MR RICHARDSON: Perhaps, given that I am still on my - I mean, the union understands that it is making an assertion. Equally, the company is making an assertion as to when and how that document was made aware or distributed to employees. In essence, the union repeats that it was only made aware - made available to employees on Friday of last week or Monday of this week, that in any event there are a number of employees who on 3 October were on leave, that is authorised leave who the union asserts, have not received a copy of the notice and in respect of the actual content of the notice, it would appear, the union asserts, to be a draft and I refer the Commission's attention to page 2 and this go to the nature of witness evidence where, in the first full paragraph, it has in block capital, centrally justified: finalised details and that to the union would suggest that it is a draft along with what the union understands to be the hand-written underlining and notations that appear on the first page. That is to say that the union is advised that they are not markings that any of the employees or the employer in particular who forwarded this notice to the union yesterday, have made. If the Commission pleases.

PN232

THE DEPUTY PRESIDENT: Do you say, other than the timing of the notice that it would otherwise comply with 170LK(2) and (4) and not - - -

PN233

MR RICHARDSON: Well, we say it would but we make this observation and don't press this point at the moment, that there are many decisions of the Commission that have dealt with section 170LK(2) - - -

PN234

THE DEPUTY PRESIDENT: Yes.

PN235

MR RICHARDSON: - - - and other sub-sections and that the established authority is that these requirements are mandatory and that extends to the 14-day periods specifically referred to in section 170LK(2), if the Commission pleases.

PN236

THE DEPUTY PRESIDENT: But other than that point?

PN237

MR RICHARDSON: Other than that the union would accept and specifically in respect of section 170LK(4) that the notice would comply or certainly would not draw any objection from the union as to compliance with the section of the act, if the Commission pleases.

PN238

THE DEPUTY PRESIDENT: Thank you. Mr Manuel?

PN239

MR MANUEL: Your Honour, this resumed hearing raises probably one critical point and - of jurisdiction, and one issue of the role of the Commission. If I could deal with the latter point first. What Mr Richardson is seeking is for the Commission to proceed to take some evidence, determine whether there has been compliances with section 170LK. Now, with respect, that misunderstands the legislative structure. Where the Commission has a role in enterprise bargaining is quite limited. Its first role which is a very important one, but it is only once a party or parties have made an application for the certification of the certified agreement.

PN240

At that point of time the Commission is then faced with the question: does the document and the processes which surround the document, meet all the qualifications that are required for certification? It is only at that time that the question raised by Mr Richardson becomes pertinent. Until that time, using this as the offer of a best example, there hasn't even been a vote. Now, if the vote is defeated, for instance, then this issue would never arise, but what we say is that the role of the Commission is only to determine whether the tests have been met at the point of time that there is an application for certification. Anything that it does before that is, with respect, redundant to the process and also we say, outside of the Commission's jurisdiction.

PN241

I would, for instance, refer your Honour to section 170NA which provides the commission with a specific power to conciliate and what we say is that from the other provisions in the legislation which prohibit arbitration that that is the limit of your power until the certification process. Until the certification process you can, upon application of one of the parties, sit down and conciliate. You are not entitled, with respect, to arbitrate on anything. Now, by the taking of evidence it is theoretically possible that you could take evidence to enhance the conciliation process but what we would say is that is not really what is being sought here. What is being sought here is a determination from the Commission that there is something invalid about the approach being taken by the company and what we say is that that is outside both the specific statements of the legislation but also the very intention of the legislation.

PN242

That however, also raises the larger point. It has as I understand, been put to the Commission as currently constituted previously that IGA maintains the position that the National Union of Workers does not have rules coverage of the clerical staff. Now, I am aware that obviously that is disagreed with by my learned friend, but nevertheless that is the position and remains the position. On that basis, my client works forward on the basis that if it does not have rules coverage, then it isn't able, for instance to initiate a bargaining period, it isn't able to initiate protected action, or not valid protected action, and nor is it available for it to seek the Commission's assistance under section 170NA, because under section 170NA there is a reference to the parties to the intended agreement or the intended parties to the agreement and what we would say is that if there is no rules coverage within the National Union of Workers, then despite their good faith belief to the contrary, they are not able to be a party and therefore all of these proceedings are, with respect, misconceived.

PN243

They are predicated upon a view of the legislation which is not correct and the reason for that is solely this that if they do not have rules coverage then it does not matter whether "people join the union" or pay their subscriptions, they can't lawfully be members and if they can't lawfully be members they can't be represented by the National Union of Workers. Now, my client has attended today very much out of courtesy to the Commission because its view, as you will understand, is that these notifications do not have any legal force.

PN244

My client, however, is in a position where it cannot agree to any situation where the Commission is being asked to seek evidence from its staff, putting aside the other reasons why that shouldn't happen, it does very fairly and squarely raise the issue that the National Union of Workers does not have rules coverage and it would note that strictly, where a party to seeks to avail itself of the jurisdiction of a Court or Commission, it bears the onus of establishing that there is in fact jurisdiction in the first place and so we would say that the onus of proof in this matter is for the National Union of Workers to establish that it has rules coverage to enable it to bring these various matters before the Commission and for it to ask the Commission for its assistance.

PN245

So in summary, on the narrower point, we obviously object to any idea of calling evidence on the matter for the reasons that I've already stated but further although we are here attending, that is done as a courtesy to the Commission. The fundamental point of IGA is that these proceedings are currently without jurisdiction and it is for the National Union of Workers to establish to the contrary that it does in fact have rules coverage to enable it proceed before this Commission. Those would be our submissions, your Honour.

PN246

THE DEPUTY PRESIDENT: Just then, as a matter of interest, what are your instructions as to the timing of the document, dated 3 October 2002?

PN247

MR MANUEL: My instructions, your Honour are that it was issued with the agreement, with the draft agreement which would make sense, with respect, because that is ultimately its purpose. I'm unaware of the other matters. I don't have instructions on the other matters that Mr Richardson has specifically raised, for instance people being absent on particular days where votes intended to be held, but those are matters that are fairly commonplace and can be dealt with. But my only instructions are that this document was issued on 3 October 2002.

PN248

THE DEPUTY PRESIDENT: I say that because, of course, putting aside the issues of jurisdiction and the role of the Commission at this stage for a moment, obviously what Mr Richardson says as to the operation of 170LK is absolutely right - - -

PN249

MR MANUEL: Yes.

PN250

THE DEPUTY PRESIDENT: - - - and, in my view, beyond contention. That is - - -

PN251

MR MANUEL: I don't think that is a matter of debate - - -

PN252

THE DEPUTY PRESIDENT: No.

PN253

MR MANUEL: - - - in terms of the obligations of the employer, and that they are absolute obligations, that there's no flexibility within the Commission to enable an employer, for instance, to issue a notice 12 days instead of 14 days.

PN254

THE DEPUTY PRESIDENT: Yes, precisely.

PN255

MR MANUEL: We accept that. Those are matters that are, however, for the employer to make an assessment as to whether it has met those requirements and then seek to convince the Commission that is has done so. I should raise, and I'm not trying to be pedantic here, but I think it should be fairly put on the record that on the basis of the argument that we put in respect of the rules coverage, section 42, the intervention procedure right to appear provides very limited rights in respect of enterprise bargaining and, particularly, section 43 in the terms of the ability to use the intervention procedures to get around those limitations is, likewise, very limited when it talks about the certification of a certified agreement.

PN256

So unless the employees were going to raise those issues directly themselves, they could not be raised by the National Union of Workers in certification proceedings. I raise that only so we are not seen to have ambushed anyone should that arise in the future. Your Honour, we do accept the point you make, and that Mr Richardson makes and that is that there is an obligation to comply for certification to occur. If we don't comply, if we make a mistake, then certification will not be possible and we understand that.

PN257

THE DEPUTY PRESIDENT: I presume that this is, strictly speaking, a presumption in the true sense of the word. I presume that the NUW, as an organisation, asserts that it has been requested by a person to meet and confer with the employer about the proposed agreement, and that that request has been denied on the basis of lack of constitutional coverage?

PN258

MR RICHARDSON: Perhaps, I might rise - - -

PN259

THE DEPUTY PRESIDENT: Yes.

PN260

MR RICHARDSON: - - - and the answer to that question is no, because despite what my learned friend says, the Union repeats that exhibit NUW5 was provided to employees on Friday of last week and Monday of this week. In other words, the bringing about of the question of constitutional coverage was not in the Union's mind or would be triggered until the company had complied with section 170LK(2). Now, that is subject to these proceedings, and something that will now occur, and I accept the company's comments about where the onus lies. That is an argument the Union is prepared to have.

PN261

I think in terms of how we come here today, it is important to remember that the Union sought a relisting of this matter because the company had circulated an agreement that, on the face of it, appeared to be an LK agreement. Had exhibit NUW5 been in the public domain since 3 October, whilst it is open to speculation in hindsight, these proceedings as presently constituted may not have arisen. I mean, the point I'm making is that accept part of what Mr Manuel says. It is very easy for the Union to walk out of these proceedings and file later today an application in respect of one or more of the employees that will bring about the same proceedings.

PN262

It does not avoid the fundamental point that the letter, exhibit NUW5, has not, contrary to what has said, been around or will have been around by Friday of this week for a period of at least 14 days. In respect of the comments about - well, the submissions, sorry, about calling evidence, well, we say that there's no bar to the Commission exercising powers to understand the process by which an agreement is reached because, ultimately, if the company relies upon a valid majority of employees having approved the agreement, except that that is an assumption, these arguments would probably come to the fore anyway.

PN263

THE DEPUTY PRESIDENT: Well, they will. That is quite correct.

PN264

MR RICHARDSON: Yes, but we don't say that there's any bar or restriction upon the Commission becoming involved in that process prior to it occurring. In fact, many of the decisions that have dealt with the mandatory nature of this section have noted that, perhaps, if the Act or the sections of the Act had been more properly complied with in the first instance, then the delays that inevitably occur would not have occurred because of Unions and, in some cases, employees raising exception to one or more sections of section 170.

PN265

THE DEPUTY PRESIDENT: Yes. That does not necessarily mean that the Commission would get in and determine that matter before the basis of the application is founded.

PN266

MR RICHARDSON: No, but I think there is a fundamental point here, and it is whether the Commission wants to entertain it in these proceedings, or in an application on behalf of one or more of the employees. That is, that the Union in these proceedings is asserting that the letter has not been out for a period, a ballot is proposed for Friday. Now, we have got competing assertions from the bar table. The only way, we say, if the Commission is disposed to become involved in that is to hear either informal evidence or to make oneself generally aware of what is going on, if the Commission pleases.

PN267

MR MANUEL: I'm not quite sure where that leaves us when we were last discussing this matter, your Honour, but certainly, in response, very briefly, to Mr Richardson, not only do we say that as a matter of discretion you shouldn't use any power that you may have in this matter to take witness evidence. We actually go further than that, and say within the constraints that are set out for certified agreements and the negotiation of the same, that there is in fact no power at this time without the consent of the parties. There is only conciliation or the certification process.

PN268

So we say, firstly, there is no power for the Commission to exercise to take this step but, secondly, if there was a power, it is not a matter or it is not the time to exercise the power. Those would be our submissions unless there is anything further, your Honour?

PN269

THE DEPUTY PRESIDENT: Thank you. Anything further, Mr Richardson?

PN270

MR RICHARDSON: Only this, your Honour, that the conciliatory power available to the Commission does not prevent the Commission taking witness evidence at this stage, or making itself aware of the facts surrounding the competing assertions as to the status of exhibit NUW5, if the Commission pleases.

PN271

THE DEPUTY PRESIDENT: Thank you. All right. Well, look, firstly, gentlemen, I would just stress that this is obviously a conference. It is on the record, and it is on the record because of reasons that I alluded to on previous occasions but it still, nevertheless, remains a conference. Secondly, Mr Richardson, I'm inclined to the view that you are right, that the Commission can call evidence on any matter that it seeks fit. It can inform itself as it sees fit, and obviously, evidence would be one of those means of doing that, particularly with the direct factual conflict here.

PN272

However, I think there are other factors which would go against that approach here - firstly, the capacity of the Union to bring these proceedings has now been formally challenged, and if there are to be further proceedings on this file, then, it seems to me, that I will have to determine that jurisdictional matter. Secondly, and perhaps more importantly in the scheme of things, I think that it would be a very exceptional situation for the Commission to get in and effectively determine that if an application was subsequently to be made, there would be a breach of the Act which would not allow it to certify the agreement, I think, in my view, that does not sit well with the Commission's role in terms of the agreement process.

PN273

I should say, however, for reasons which I've already confirmed in exchange with the parties, that requirements of section 170LK(2) and (4) are absolute and, indeed, it is my understand of the law that if those reasonable steps and the requirements of notice have not been met, not only is there a, sort of, procedural deficiency but there is, in fact, no valid application to be made - that is, the 170LK agreement would not be a valid application. There would be no jurisdiction for the Commission to deal with it, so on that basis, the risk that the respondent runs is that if the assertions are correct, then the process is already out of whack and will not provide a valid basis for an application to proceed to the Commission.

PN274

The risk that the Union runs, of course, is that if the assertion is incorrect, then there may well be the requisite basis for a ballot to be taken, and for a valid application to be made. Mr Richardson, it would seem to me that - and I appreciate this is Tuesday and, I think, the ballot is due on Friday - presumably, you are now in a position, if you have had the request from one or more of the employees, to seek to formally meet and confer with the employer about making the agreement. That does not necessarily mean conceding that the notice has been given, or the notice is valid and if that request is denied, then there may be some consequences of that in terms of other proceedings.

PN275

There would certainly be consequences in terms of a section 170LK application, that is, the proposition that you have advanced, both in respect of the notice not being valid and, secondly, and in any event, if that refusal is denied and the company is wrong about the constitutional coverage of the Union, then that will also mean there's no valid 170LK application so the stakes are reasonably high. I think it is a question of at what time the Commission would get involved and in what context. It just seems to me that unless the Commission is going to hear and determine the jurisdictional issue now, or before getting involved with the detail of the matter about your constitutional coverage, then I don't believe I'm in a position to formally advance the issues that you have raised.

PN276

I have made some comments that, I hope, are helpful in terms of setting out the potential strategies and the risks that the parties run but, ultimately, I think the ball is in the parties court at this stage and it hasn't been, sort of, lobbed over the net, to continue that analogy.

PN277

MR RICHARDSON: Well, your Honour, I appreciate and respect what has been said. Can I simply foreshadow that the employees will now be making an application, pursuant to section 170LW and possibly other sections of the Act, to bring about allegations that section 170LK has not been complied with. I believe that the observations made from the Bench are applicable and appropriate to the current C number. I actually think we've got a B number - - -

PN278

THE DEPUTY PRESIDENT: Yes, I think that is correct.

PN279

MR RICHARDSON: - - - but would not necessarily hold to be true in the event that the employees brought about agreements to this Commission so it is really just a case of how we get there because the observation I've made is that the company will depart from these proceedings and present what has occurred today as a win, present what has occurred today as a continuation of the process that they commenced on 3 October, and be in a position to, perhaps - no, I withdraw that. Perhaps, not be in a position to rectify should it find that there was any fault in exhibit NUW5 but perhaps - - -

PN280

THE DEPUTY PRESIDENT: Well, I don't think that is a risk that you run because the notes would have to be reissued.

PN281

MR RICHARDSON: No. I mean, at the end of the day, whether the company and/or the Commission ultimately accepts that these persons are members of the Union or not, the Union simply makes the general assertion in these proceedings, which the company can choose to rebut, that the employees have been placed under an enormous amount of duress, so one way of relieving that duress is to bring about proceedings that they initiate under the appropriate section of the Act which will just bring us back here at the Commission's earliest convenience, if the Commission pleases.

PN282

THE DEPUTY PRESIDENT: Well, I think that is where we sit then. I'm not sure that that is the only option but ultimately, that is a decision that you will make.

PN283

MR RICHARDSON: No. I mean, the Union accepts that the onus lies upon it as to making out its coverage and there are, as the Commission has observed in the past, a number of triggers for that to occur. I mean, I've indicated to Mr Manuel is he reading to run the argument. Understandably, he is not. I mean, admittedly, neither am I here today but it is an argument that is coming - - -

PN284

THE DEPUTY PRESIDENT: It is an argument that is coming. There is no doubt about that.

PN285

MR RICHARDSON: - - - but it is a separate argument from whether IGA is complying with the Act at this point in time.

PN286

THE DEPUTY PRESIDENT: Yes.

PN287

MR RICHARDSON: We say, on behalf of the employees, that they have not and that the Commission, although these proceedings cannot assist in that, shouldn't be giving or shouldn't allow the company to, perhaps, leave these proceedings with the view that it has because exhibit NUW5 has not been out there for the best part of 2 weeks, if the Commission pleases.

PN288

THE DEPUTY PRESIDENT: All right, thank you. Anything further, Mr Manuel?

PN289

MR MANUEL: No, thank you, your Honour.

PN290

THE DEPUTY PRESIDENT: All right. Well, look, it is my view that I should adjourn these proceedings rather than deal with them further for the reasons I've outlined. In terms of the comments you have just made, Mr Richardson, I should make it clear that I have made no finding or otherwise, implicit or explicit, about compliance with 170LK. Indeed, I have noted that there is a major factual dispute between the parties, about where that has been done, and I have pointed out the risks the parties run in that context so to the extent to which it could be perceived as there being any outcome along those lines, that would be completely inappropriate.

PN291

Indeed, if that were communicated, that, of itself, may raise an issue in terms of a subsequent 170LK application so the employer will need to be very careful about the way in which it portrays the outcome of these proceedings if it does so at all. In my view, for the reasons that I have specified, the ball is in the parties court. I believe there's an issue which will have to be determined at some stage, and it is just my view that, as presently constituted, this is not the right vehicle for the Commission to deal with. There are other alternatives, but I believe the ball is in the parties court in that context. Unless there's anything further, then the Commission will be adjourned.

ADJOURNED INDEFINITELY [12.41pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #NUW4 LETTER RE BALLOT PN224