AG2002/333, Transcript of Proceedings [2002] AIRCTrans 4501 (15 November 2002)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 2, 16 St George's Tce, PERTH WA 6000
Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS


O/N WT05566
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT LACY

AG2002/333

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170MD of the Act
by Chubb Protective Services for
certification of the Chubb Security Australia
Pty Ltd - Perth Airport Agreement 2002

PERTH

2.15 PM, TUESDAY, 29 OCTOBER 2002

PN1

MR J. UPHILL: I appear on behalf of the applicant.

PN2

MR J. WELCH: I appear on behalf of the ALHMWU seeking the right to intervene with reference to the proposed certification of this variation.

PN3

THE SENIOR DEPUTY PRESIDENT: Yes. Thank you, Mr Welch. What is the grounds for your application to intervene? What part of the Act do you rely on as applicable.

PN4

MR WELCH: Senior Deputy President, we say that we seek to intervene under section 43. Specifically in the first instance I have effectively arguments in three parts under section 43(2), but if the Senior Deputy President does not believe that our argument is made out and we don't have the right to intervene we would then seek to rely upon 43(1) in which case we would submit forms on behalf of individuals to act as their agent with reference to this matter and we would say that they were directly affected by it, but if I can deal initially with our arguments with reference to 43(2).

PN5

THE SENIOR DEPUTY PRESIDENT: Yes.

PN6

MR WELCH: We say that section 43(2) gives the right to intervene to a union who can show that it has, and if I quote from the section of the Act:

PN7

...requested to represent a person as mentioned in section 170LK(4) in relation to the agreement and provided that the request has not been withdrawn.

PN8

We say that that has been satisfied and that that therefore should gain us the right to intervene in this matter. It is clear that the right to request to meet and confer must be made before the agreement and the ballot has taken place, so while it is still a proposed agreement, and that is clear from 170LK(5) and the normal route for this process would be through the application for a granting of a certificate under 291A of the Act, which evidences the union's right to discuss and confer with the respondent in this matter.

PN9

In this case we say it is clear that the union has requested to the company, they wrote to the employer on 23 September, and I can hand a copy up into evidence, and a photocopy to the other party, which is a letter to Mr Sullivan on behalf of our State Secretary indicating the wish to enter into this process.

EXHIBIT #LHMU1 LETTER DATED 23 SEPTEMBER TO MR S. SULLIVAN, APPARENTLY FROM DAVID KELLY, UNSIGNED

PN10

THE SENIOR DEPUTY PRESIDENT: Did you give a copy of that to Mr Uphill?

PN11

MR WELCH: Yes. I provided a copy already, Senior Deputy President. On the same day an application was made to the Registrar of the Australian Industrial Relations Commission in Sydney for a certificate under 291A, that the union was requesting such a certificate. They subsequently held a meeting with Mr Sullivan. As part of the process, a meeting I believe took place between Mr Sullivan, one of our delegates and Ms Freeman of our union as part of the conferral process and we said, therefore, since the union has not withdrawn its request to confer that it has done what is required by the Act, namely it has requested the right to confer. It has made an application for a 291 application before the ballot took place and conferral took place. We say, therefore, we have complied with the requirements of 43(2) and 170LK(4) and (5).

PN12

While it would be, I think, fair to say that it is commonplace to have the 291A certificate, and that should provide evidence, that the union has made the request and not had a withdrawal. We say that the circumstances or facts in this case should not preclude us from having the right to intervene. The specific request or application for a 291A was made prior to the ballot. The only reason why the application was not granted was, we say, if I can put it this way, inappropriate extra administrative requirement put upon the union in this matter.

PN13

The normal practice is that the union provide details of the individual who are members of the union and employees who would wish them to act on their behalf with reference to the 170LK. The union did so do that. I provided those on the 23rd and if I can provide two letters, which go between the union and the Australian Industrial Relations Commission Registry in Sydney. These letters deal with the correspondence between the parties and why a certificate was not provided. We say that a certificate should have been provided. The application was made prior to the ballot, therefore the application was made while it was still a proposed agreement, and that would be in line with the findings in the Mirvac case, which is I think the leading case on this matter. In relation to that, however, the Industrial Relations Commission then subsequently asked for the provision of a pay slip on behalf of one of our members.

PN14

THE SENIOR DEPUTY PRESIDENT: Who asked for that?

PN15

MR WELCH: The Registry of the Industrial Relations Commission in Sydney.

PN16

THE SENIOR DEPUTY PRESIDENT: Yes.

PN17

MR WELCH: If I can draw the Senior Deputy President's attention to the letter from Mr Godfrey. Mr Godfrey's letter goes to that very point.

PN18

THE SENIOR DEPUTY PRESIDENT: I had just better mark these letters.

PN19

MR WELCH: Sure.

PN20

THE SENIOR DEPUTY PRESIDENT: First of all there is the letter to Robin Godfrey dated 11 October 2002 from Janine Freeman. Is that right?

PN21

MR WELCH: If I could suggest, Senior Deputy President, I think that is in response to the other letter, so I think it would be more appropriate for it - - -

PN22

THE SENIOR DEPUTY PRESIDENT: Which other letter?

PN23

MR WELCH: The letter headed, "Dear Ms Northcott", from the Australian Industrial Relations Commission.

PN24

THE SENIOR DEPUTY PRESIDENT: Yes, yes.

PN25

MR WELCH: I believe the letter from Ms Freeman effectively deals with the substance of that letter.

PN26

THE SENIOR DEPUTY PRESIDENT: Where is the letter that is referred to dated 11 October?

PN27

MR WELCH: Sorry, is there not a copy provided, Senior Deputy President, have I not handed up that copy of said letter?

PN28

THE SENIOR DEPUTY PRESIDENT: No. I don't appear to have a copy of the letter. I was given two letters, one addressed to Ms Simone Northcott.

PN29

MR WELCH: That is correct.

PN30

THE SENIOR DEPUTY PRESIDENT: And one addressed to Robin Godfrey - sorry, that is dated 11 October. Well, that is the one I was going to mark.

PN31

MR WELCH: Sorry, yes, Senior Deputy President, I apologise for any confusion on that.

EXHIBIT #LHMU2 LETTER TO ROBIN GODFREY DATED 11/10/2002 FROM JANINE FREEMAN

EXHIBIT #LHMU3 LETTER ADDRESSED TO MS SIMONE NORTHCOTT FROM ROBIN GODFREY DATED 18/10/2002

PN32

MR WELCH: These documents, Senior Deputy President, deal essentially with the point of contention, which is that the union's view was that as set out in the letter of the 11th to Mr Godfrey, that an application was made prior to the vote having taken place and that therefore the 291A certificate should have been issued. The fact that a further piece of evidence was required which frankly in our experience in Western Australia has never been asked for before and in contacting our national office they indicated they had never come across it being required of them either, was the reason why the 291A certificate was not simply provided at that point which would have clearly identified us as having the right to intervene in this matter and we say that, therefore, it should be differentiated from or distinguished from the Mirvac case, which is referred to in the letter of the 18th from Mr Godfrey in response to Ms Freeman - - -

PN33

THE SENIOR DEPUTY PRESIDENT: I'm sorry, I just need to clarify something. I'm a bit lost at the moment. There is a letter of 11 October followed on some telephone discussion. Is that right?

PN34

MR WELCH: That is correct, Senior Deputy President.

PN35

THE SENIOR DEPUTY PRESIDENT: Had there been a request made before 1 October 2002?

PN36

MR WELCH: As I understand it, the application was lodged with the Registry by facsimile transmission on 24 September and Mr Godfrey accepts that in the second paragraph of his letter.

PN37

THE SENIOR DEPUTY PRESIDENT: Yes.

PN38

MR WELCH: An application was made with the provision of the information which is normally required or requested of the union and I believe that copies of this were supplied in the original letter that we sent to Senior Deputy President Polites when we initially indicated that we intended to intervene in this matter. We provided letters from the individual employees appointing us for the purposes of the 291A and that was all provided to the Registry. They then said: we need further information and that is where the problem occurred; we say that it is unreasonable that that further request was made of us and we should not be precluded from the right to intervene because that further request was made because clearly our application was made before the ballot took place and therefore when the application was still proposed.

PN39

So we say that, firstly, we have met the requirements and that the requirements for intervention do not require a 291A but simply the 291A would normally be used to be evidence or proof that the process had been concluded. We say that it is the case that the normal process of an application and are seeking to consult with the employer and the employer meeting with us for the purposes of conferral have taken place. So we would say therefore under section 43(2) that we should have the right to intervene.

PN40

If the Senior Deputy President is not convinced that on that basis we should have the right to intervene we say that under section 43(1) there is a more general power to allow intervention and we have, if necessary, agents forms on behalf of three individual members who are directly affected, three employees who will be directly affected by the variation and we would say that on that basis alone, if it were necessary, the Commission can grant us the power to intervene on their behalf rather than as a union, we would be acting as their individual agent.

PN41

I think there are a number of precedents for so doing and I would refer to a number of cases which I think are relevant in that. Unfortunately, I don't have copies because unfortunately the file was only provided to me at a late stage, unfortunately Ms Freeman is not available to attend today but I can provide copies of these subsequently to the Commission and so Mr Uphill. These cases go to the question of whether individuals whose rights may be affected by the certification of an agreement or variation should have the right to intervene if the agreement is to directly affect them and we say that clearly the effect of the agreement on the individuals is direct.

PN42

We have, as I say, three agents forms and I would refer to the case of Motorola Motor Corporation Australia Limited at R9645. In this the Commission granted leave to intervene to the CEPU on behalf of three employees and at paragraph 5 Senior Deputy President Watson says:

PN43

I have decided to grant leave to intervene on the basis that I reached the view that three employees had an interest in the matter before the Commission, in that it was arguable that their rights would be affected by the proposed agreement.

PN44

Further case which I would draw some parallel to is Northern Territory Pre-Stressing Pty Limited Enterprise Agreement 2000. So that is Northern Territory Pre-Stressing Pty Limited Enterprise Agreement 2000 and employees at Shed 3, 9 Griffin Crescent, Winnellie, and in this the Commission granted leave to an official of the CFMEU to appear on behalf of a member concerned that the agreement involved in this application would not pass the no disadvantage test and we say in this case our application our intervention will seek to deal with on these individual's behalf the fact that the balloting procedures have not been properly complied with and therefore that the answers given in the statutory declaration in effect are incorrect.

PN45

THE SENIOR DEPUTY PRESIDENT: What was the print number of that previous matter you - - -

PN46

MR WELCH: I'm sorry. That was T3537. Finally, I would go to Coles Supermarkets Australia Pty Limited v Shop, Distributive and Allied Employees Association, T2319. In this case, as I understand it, the Full Bench held that Commissioner Tolley was correct in granting Mr Tullgren of our union the leave to intervene on the grounds that Mr Tullgren of the union was in fact intervening on behalf of employees and therefore section 43(2) was not applicable and shouldn't preclude Mr Tullgren seeking to intervene in relation to the substantive matter.

PN47

So we would say, Senior Deputy President, that we believe we have the right under section 43(2) but, notwithstanding that, if it is the case that the Senior Deputy President does not believe that we have the right to intervene we will provide agents forms on behalf of three employees who are directly affected by the variation of the agreement, this agreement clearly changes rates of pay and also the disputes settlement procedure which clearly has a significant impact upon them. We therefore say that we should have the right to intervene on their behalf, if not as an organisation.

PN48

THE SENIOR DEPUTY PRESIDENT: Do you have copies of the decisions that you referred to there?

PN49

MR WELCH: Sorry, Senior Deputy President?

PN50

THE SENIOR DEPUTY PRESIDENT: Do you have copies of the decisions that you've just referred to?

PN51

MR WELCH: As I indicated unfortunately the case file was passed to me at quite a late point and I can provide copies, hopefully before the end of the day, to the Commission but I don't have copies with me unfortunately, but I'm happy and able so to do as quickly as is physically possible.

PN52

THE SENIOR DEPUTY PRESIDENT: Well, I don't know that that would be necessary. Did you want to say anything else at this stage?

PN53

MR WELCH: No, Senior Deputy President. If you decide that we have the right to intervene then obviously we will deal with the substantive issues of our concerns about the ballot at that point.

PN54

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Uphill, can I hear you on the intervention?

PN55

MR UPHILL: Thank you, your Honour. What we say is we oppose the intervention sought by the union. The first basis of intervention is pursuant to section 43(2). We say there are two conditions that need to be satisfied not only in subsection (a) where it talks about there needing to be a request to represent persons, but also there is a second requirement that needs to be satisfied in (b), and that is not only must employees request the union to represent them but also the union must be either a party to the Certified Agreement or proposed to be bound by the agreement, that is clear from the wording of subsection (b).

PN56

So there are two conditions that must be satisfied. Certainly, Mr Welch has spoken about subsection (a) but has failed to provide any information to the Commission about subsection (b) and of course the agreement doesn't and isn't an agreement which this union is party to and I've heard nothing from Mr Welch that would indicate that the union is proposing to be bound by the agreement.

PN57

THE SENIOR DEPUTY PRESIDENT: I think quite the contrary, you wanted to oppose it anyway, didn't you?

PN58

MR UPHILL: Yes. I can take it that one step further. So we say that there is no basis under 43(2) for the union to be granted the right to intervene. The fall-back position from the union's point of view is that if they're not successful in getting intervention under 43(2) they believe that they may be granted intervention under 43(1) and there is the ability for persons to seek leave to intervene and I think the case law establishes that there needs to be intervention by persons who have a sufficient interest in the matter, and that must be demonstrated usually before the right to intervene is granted.

PN59

We certainly acknowledge that there may be persons who would be covered by the terms of the agreement that seek to put some views to the Commission and that may be sought to be done via authority of this union who under authority from the individuals to the union but we do refer to the scheme of the legislation, which of course allows employees to influence the making of the Certified Agreement and may have, of course, 14 days in which to consider the agreement and to influence any vote which is taken at the end of that 14 day period.

PN60

What we say is that that is the correct way in which employees have an ability to influence the outcome and they ought not be given, in our view, a second opportunity to try and prevent or in some way influence the certification of an agreement. We say that the scheme of the legislation allows for their influence to be taken account of during the 14 day period and that is the way - - -

PN61

THE SENIOR DEPUTY PRESIDENT: I understand the thrust of your argument and I see quite a bit force in it, but if the complaint is that there has been an error or inaccurate ballot count or something like that does that still carry the same force?

PN62

MR UPHILL: It probably doesn't, your Honour.

PN63

THE SENIOR DEPUTY PRESIDENT: I'm not saying there was but that, as I understand it, is the basis of the complaint, yes.

PN64

MR UPHILL: Yes. Yes. I take the matter no further than that.

PN65

THE SENIOR DEPUTY PRESIDENT: Yes. Thanks very much. Thanks, Mr Uphill. Do you want to say anything in reply, Mr Welch?

PN66

MR WELCH: Senior Deputy President, only in relation to the final point, it was the point I think that you were asking Mr Uphill about and we say that the 14 days clearly allow individuals to take note of the content and to deal with the content. They have an opportunity to vote on the content. What we're dealing with here is what we say is an inappropriate or improper process of ballot that cannot be effected in the 14 days beforehand. An individual cannot know that the count would be incorrectly complied with or incorrectly carried out and also the question, if we're given the right to intervene we will deal with, a technical question about whether or not the variation is in fact a variation.

PN67

I think neither of those are affected by the 14 days. Clearly, individuals who are directly affected by it should have the right to raise a concern about the process rather than the substance of the agreement. They clearly had an opportunity to vote and they will have taken that, what we're talking about here is whether or not the process has been correctly followed.

PN68

THE SENIOR DEPUTY PRESIDENT: Yes. I have an idea that I have issued a decision at some time dealing with the very point that Mr Uphill raises about the operation of 43(2)(a) and (b) and I have the impression, without referring to it, that my construction of 43(2) coincides with the point made with Mr Uphill. What I might do is take 10 minutes to just go and confirm that situation. Sorry, Mr Uphill, did you - - -

PN69

MR UPHILL: Your Honour, I might be able to assist, there is a decision which I perhaps should have drawn your attention to earlier, it is a matter, an appeal decision, McIntyre Coleman and O'Connor, 9 September 1998, involving CSR. I don't know whether that is a matter that you might have referred to but I think that answers the question, it is print Q5931.

PN70

THE SENIOR DEPUTY PRESIDENT: Q5931?

PN71

MR UPHILL: That is right.

PN72

THE SENIOR DEPUTY PRESIDENT: All right. I will stand the matter down for 5 minutes and I will just check those decisions.

SHORT ADJOURNMENT [2.38pm]

RESUMED [2.53pm]

PN73

THE SENIOR DEPUTY PRESIDENT: Yes. I thank the parties for their patience. I've had a look at those decision to which the parties have referred and as Mr Uphill suggests there are considerations that count against allowing any intervention. It is also questionable whether the organisation ought to be allowed leave to intervene in circumstances where the purpose of the intervention is simply to oppose the making of the agreement. However in my decision in Robe River Certified Agreement 2002, it is print PR917163, I concluded that the availability for intervention under paragraphs (a) and (b) of section 42 - sorry, section 43, subsection (2), were distinct and separate in the sense that the party might seek leave to intervene under paragraph (a) to oppose the agreement and under paragraph (b) to be made a party to agreement, but couldn't seek leave to do the two things at one time.

PN74

In this case it seems to me that the issue that is sought to be agitated by the employees who are disaffected, relates to the question of process in securing the agreement. In performing my role under section 170LT of the Act, as I am required in relation to a variation, I will need to have regard to those processes and on that basis it is reasonable and right that I should allow the employees leave to intervene for that purpose. On that basis I've concluded that I will allow the employees, through the representation of the ALHMWU, leave to intervene in the process but do not allow leave to intervene to the ALHMWU as a separate entity.

PN75

I should just say in conclusion that the reason for restricting leave to the employees concerned is principally to give effect to the objects of the Act and that is for agreement making to be made, to the extent possible, by the employers and employees concerned which is the basis upon which the agreement has been reached in this case, subject of course to fulfilling all of the necessary criteria for certification under section - or variation under the relevant provisions of the Act. So on that basis I think, Mr Uphill, if you would like to put your case for variation and then I will hear the objections, or such objections that may wish to be made by the employees.

PN76

MR UPHILL: Happy to do that, Your Honour. There may well be one preliminary matter that we need to dispose on, that is to identify the employees, the persons who are seeking to put views in these proceedings. I understand Mr Welch has some information which may identify - - -

PN77

THE SENIOR DEPUTY PRESIDENT: Yes. I'm sorry, he did offer the authorities before and I didn't take them, so - - -

PN78

MR WELCH: Yes, Senior Deputy President. I have authorities from three employees. I'm happy to provide copies to the advocate for the respondent in this matter, but I would ask that other than that they be kept confidential.

PN79

THE SENIOR DEPUTY PRESIDENT: Yes. I think that is appropriate. I will mark the three authorities that have been provided by Mr Welch as a bundle exhibit of LHMU4 and they will be kept confidential and placed in an envelope and marked as such in the file.

EXHIBIT #LHMU4 THREE AUTHORITIES PROVIDED BY MR WELCH

PN80

MR WELCH: Thank you very much.

PN81

MR UPHILL: Your Honour, this is an application which seeks a variation to an existing certified agreement and we seek to make a variation pursuant to section 170MD of the legislation. There has been documentation filed in the Commission which, we believe, satisfies the requirements of the terms of the legislation. We seek to rely upon the documentation as filed and would request that the variation proposed, which is in attachment 6 of the documentation filed, apply with effect - - -

PN82

THE SENIOR DEPUTY PRESIDENT: That is the statutory declaration of Stephen Sullivan, is that right?

PN83

MR UPHILL: That's right, yes. Yes.

PN84

THE SENIOR DEPUTY PRESIDENT: Yes, yes.

PN85

MR UPHILL: And at the back of those documents, attachment 6, is the variation that we propose to have made to the agreement and it is that - - -

PN86

THE SENIOR DEPUTY PRESIDENT: There is four attachments, are there?

PN87

MR UPHILL: There are one, two - - -

PN88

THE SENIOR DEPUTY PRESIDENT: Sorry. There is six attachments.

PN89

MR UPHILL: Yes, there are six attachments.

PN90

THE SENIOR DEPUTY PRESIDENT: Yes.

PN91

MR UPHILL: Yes. There is an attachment 6, which is the amendment that we seek to make to the certified agreement and we request that the amendment take effect from the date of certification by this Commission. The preceding attachments, by way of indication that in our view the requirements of the legislation and the process that has been undertaken, is consistent with the requirement which an applicant needs to discharge when seeking a variation, as if the variation were, in effect, a new agreement. And we believe that the documentation does lend weight to that conclusion. I assume you had a chance to look at the documentation so I might pause there and - - -

PN92

THE SENIOR DEPUTY PRESIDENT: Yes, I have. I've read the documentation.

PN93

MR UPHILL: I might pause there and I'm happy to try and answer any questions that you may have in relation to the documentation.

PN94

THE SENIOR DEPUTY PRESIDENT: Yes. You confirm that there was a valid majority approved the agreement.

PN95

MR UPHILL: Yes, in fact the statutory declaration of Stephen Sullivan indicates that this is, in point number 5, he indicates that a ballot was conducted on Friday, 4 October and the proposed variation was approved by a valid majority of employees, 21 yes, 17 no. So that is the basis on which we say a valid majority have approved the agreement - approved the variation to the agreement, I should say.

PN96

THE SENIOR DEPUTY PRESIDENT: Yes, all right. As I say, I've read the material and I just seek your assurance that there was a valid majority and that it was sought and obtained by way of a valid ballot.

PN97

MR UPHILL: That is the submission we put to the Commission.

PN98

THE SENIOR DEPUTY PRESIDENT: Yes. Thank you Mr Uphill. Yes, Mr Welch.

PN99

MR WELCH: Thank you, Senior Deputy President. As indicated we believe that there are concerns about the validity of the ballot that was conducted by the company in relation to this matter. We are also concerned, and I will come on to this, that this variation is not what it purports to be, namely a variation but rather is an application for a new agreement. It does not fall within the terms of 170MD(6) which sets out what a variation may be. If I can come to the validity of the ballot. It has been raised with us by our members that the company issued 39 ballot papers and subsequently that was confirmed to our organiser, Miss Testar. Thirty nine ballot papers were distributed.

PN100

According to the figures which have been provided in the statutory declaration at point 5, 21 people voted yes, 17 people voted no. That makes a total of 38, yet effectively we say there are two issues with this process. One, we understand that a number of casual employees were provided with less than the 14 days that would be necessary for them to have consideration of the agreement before they voted. And secondly, and perhaps more significantly, it is our understanding that five individual employees have identified to our delegate, and our delegate is here today if necessary to be called as a witness, that they did not vote. That they did not return their ballot paper. It is - - -

PN101

THE SENIOR DEPUTY PRESIDENT: Sorry, how many?

PN102

MR WELCH: Five. It is therefore a simple matter of mathematics. If five people did not return their ballot paper and 39 were sent out, it cannot be so that 38 people voted in the ballot. We therefore say that there is some problem with the validity of the ballot. We can't tell you why or how the figures don't add up. We simply say that it is impossible for them so to do. We say that, therefore, there is a significant problem with a requirement of the process which would lead to the certification.

PN103

THE SENIOR DEPUTY PRESIDENT: Sorry to interrupt Mr Welch. How do you propose to demonstrate that five people didn't return their ballot papers?

PN104

MR WELCH: Well, Senior Deputy President, I was intending to call our delegate who has had a dialogue with individual employees. We - - -

PN105

THE SENIOR DEPUTY PRESIDENT: But how can that be acceptable? I mean I don't, for one minute, suggest that your delegate would do anything other than tell us what he was told, but that can't be tested in any proper way can it?

PN106

MR WELCH: Well, I suppose I would say this, Senior Deputy President. The requirement is that the Commission be satisfied that all of the requirements are met. If the Senior Deputy President is not satisfied that that is so, then clearly you can seek evidence from the company that the ballot was properly carried out and who voted in it. We will be able to provide the names and cross-examination of the individuals who say they did not provide ballot papers upon return and you would then be able to assess one against the other.

PN107

THE SENIOR DEPUTY PRESIDENT: All right.

PN108

MR WELCH: And decide whether in fact there was a fair process.

PN109

THE SENIOR DEPUTY PRESIDENT: Yes, all right.

PN110

MR WELCH: Sir, I will, subsequent to making a few further points, call Mr Lawrence, who is our delegate. I apologise for momentarily forgetting his name. We would also say, however, that there is a question in relation to what a variation is. We say that a variation surely must in some way deal with the substance matter of the original agreement. A variation is identified under 170MD(6). It says:

PN111

The Commission may, on application by a person bound by a certified agreement, by order vary an agreement ...(reads)... however expressed, that authorises an employer to stand down an employee.

PN112

Clearly it is intended that a variation will resolve a matter which is already

PN113

existing inside an agreement or deal with some substance that already exists therein. And we say that this agreement deals with nothing that is in the original agreement. It simply seeks to introduce a clause relating to a pay rise and a further dispute settlement procedure which includes a preclusion on work bound prior to the conclusion of the process. Now we say therefore that the question of pay is not dealt with in the previous agreement and therefore this is not - - -

PN114

THE SENIOR DEPUTY PRESIDENT: Sorry, you're getting a bit ahead of me. If you go back to 170MD(1).

PN115

MR WELCH: Yes.

PN116

THE SENIOR DEPUTY PRESIDENT: That says either:

PN117

(a) If paragraph (b) does not apply the employer; or (b) If one or more organisations are bound by the agreement the employer and the one or more organisations may, in writing, vary the agreement.

PN118

How does paragraph 6 define the variation for that purpose?

PN119

MR WELCH: Well, as I understand it, clause 6 is merely trying to identify what is a variation and what a variation may mean, so that there can be clarity in understanding the concept of a variation. In much the same way as, for instance, clause 3(b) requires that the same steps must be carried out for the purposes of certifying an agreement - sorry, certifying a variation. It is simply clarifying the situation, making clear to the parties what the understanding of the Act is. And it is saying a variation is this and it gives some indication as to what that is. Now the fact that as clause 1 and 2 indicates that either the employer or one or more of the organisations which are bound by the agreement may in writing vary the agreement, does not change what a variation would be. It simply - - -

PN120

THE SENIOR DEPUTY PRESIDENT: Yes. Look, I'm not disputing what you're saying. I just don't think it's a definition. I think the difference is what the parties may do and what the power of the Commission is. The parties may vary the agreement but the power that the Commission has to do it falls within paragraph 6 and paragraph 6 says it can only do it for those purposes. But I don't know that that is definitional. I think that is more the question of power.

PN121

MR UPHILL: Yes.

PN122

MR WELCH: But even if that is so, Senior Deputy President, if the Commission has power, as given to it by the Act in that sense, to vary agreements in certain circumstances then the question should be, is this a variation in those circumstances. And if the answer to that is no, then the Commission has to consider whether it is appropriate to then use its power to certify the agreement. I say no more than that on this point. At this point I would seek to call Mr Lawrence as a witness, in relation to the matter of the ballot.

PN123

THE SENIOR DEPUTY PRESIDENT: Yes, all right.

<RONALD VICTOR LAWRENCE, SWORN [3.09pm]

<EXAMINATION-IN-CHIEF BY MR WELCH

PN124

MR WELCH: Mr Lawrence, for the benefit of the Commission, could you give your name and address please?---Ronald Victor Lawrence, number three Meander Way, Maddington, WA.

PN125

Can I ask, Mr Lawrence, what your employment is?---I'm a security officer at the Qantas Domestic Terminal, with Chubb Protective Services.

PN126

Do you have any role with the ALHMWU?---I am a union delegate, yes.

PN127

Okay. Do you have any recollection of the ballot that has been referred to in this case that took place on 4 October?---I do.

PN128

Could you, for the benefit of the Commission, describe your recollection of the ballot?---It was the last day I was on shift. We voted on the Tuesday, the ballots went into the box. I then went on two days off, I came back on, from days off, and I was told that we had lost and I said: Well, that's fair enough if people voted. And then I - staff came up to me and said there's - said there's 39 replies. And I said: Well, there can't be because we don't have that many people here, not unless they include the people that started within a week of before the ballot. And after talking to some of them they didn't know what it was about and then some of the staff that had received their ballot papers, informed me they didn't vote because they lost their ballot papers. And I took their names and I also got somebody else to ask them, separate to me, to make sure that it was - what they had told me was correct. And they verified it. One was on holidays and we knew about that, but the other four had lost their papers and one was a night watchman and he came in and he said: I didn't bring it with me. And of course the ballot box went.

PN129

Would you be able to, if required, provide the names of the individuals who talked to you?---Yes, I've - think I've already supplied that.

PN130

Okay. Senior Deputy President, I have a question which is the provision of the individual names, is it possible that it be provided to the Commission, on a confidential basis, rather than directly in open - - -

**** RONALD VICTOR LAWRENCE XN MR WELCH

PN131

THE SENIOR DEPUTY PRESIDENT: Well how can that be done? I mean there is no way that the respondent, or the employer, I should say, could meet that contention, unless they know who the people are that say they didn't receive a ballot paper, or sorry, they didn't lodge a ballot paper.

PN132

MR UPHILL: Yes.

PN133

MR WELCH: Very well, Senior Deputy President. Could I ask you to identify, from your recollection, the individuals?---Yeah, if I can remember them now. There was Marie, there was Andrew - - -

PN134

I think you need to probably - - -

PN135

THE SENIOR DEPUTY PRESIDENT: Just take it slowly, please and who - - -

PN136

MR WELCH: Yes.

PN137

THE WITNESS: Sorry?

PN138

THE SENIOR DEPUTY PRESIDENT: Who is Marie?

PN139

THE WITNESS: Marie Ingles, she is a security officer.

PN140

THE SENIOR DEPUTY PRESIDENT: English is it?---Sorry?

PN141

Marie English?---Ingles.

**** RONALD VICTOR LAWRENCE XN MR WELCH

PN142

Ingles, sorry?---I would have to get - some of them have got some unusual spelling. Have you got the list that I gave you?

PN143

I think if you tell us the names, we will see how we go with them.

PN144

MR WELCH: Yes. If you do your best to provide the names in evidence?---Okay. Andrew Aldrich.

PN145

THE SENIOR DEPUTY PRESIDENT: Eldridge, was it?---I'm not too sure. Some of them are new staff that I've been working with and we don't constantly work with them. There's Edward Harvey, Matt is another one and I don't know his surname.

PN146

Matt, was it?---Matt.

PN147

Yes?---I'm sure it's Matt.

PN148

You have a list of the names do you?---I've given a list in, yes, sir.

PN149

Yes, well, first of all see what you can remember from your memory and then we might let you have a look at the list?---Okay. And unfortunately, I wouldn't know Matt's surname at all.

PN150

No. Well you've said Marie Ingles?---Ingles.

PN151

Andrew Aldrich, Edward Harvey and Matt?---Yep. Andrew, is another one.

PN152

And you've said an Andrew already?---Yeah, well that's okay.

**** RONALD VICTOR LAWRENCE XN MR WELCH

PN153

Perhaps you could show the witness the list.

PN154

MR WELCH: Unfortunately, Commissioner, due to the administration of the case coming to the last second, I don't have the list in front of me. I had assumed that Mr Lawrence would give all of the names in cross-examination. I can provide a list of those subsequently. I understand that he has e-mailed them to the union and I will be able to provide those to you. I can get a further sworn affidavit on his behalf after.

PN155

THE SENIOR DEPUTY PRESIDENT: Right. Well, how many names were there?

PN156

THE WITNESS: There was five in total.

PN157

THE SENIOR DEPUTY PRESIDENT: All right. You've said four, Marie, Andrew, Edward and Matt. Can you recall the other one?---No, just trying to think. No, I'm sorry I can't, Your Honour.

PN158

All right.

PN159

MR WELCH: Sorry, Senior Deputy President.

PN160

THE SENIOR DEPUTY PRESIDENT: That's all right. Go on.

PN161

MR WELCH: And you are clear about what they said to you?---Yes, because I went back and - and asked them and I asked them: Why didn't you vote. And the answer came back was: I was either too late because of - of working night shift. And one said - the others said - well, one was on holidays, the other ones turned around and said: Well, we lost our ballot papers.

**** RONALD VICTOR LAWRENCE XN MR WELCH

PN162

Was there any information provided to staff about the result of the ballot?---Yes, there was a letter put up in the office from the company, on a letterhead, which said that there was 21 yes, and 17 no's.

PN163

Okay. And that total is?---That's a total of 38.

PN164

Okay. If I can ask you about the casual employees. Are you aware of any casual employees taken on by the company in the time prior to the agreement?---Well, yeah, there was a whole - quite a few at the time because we've had to take on a lot of extra staff and some of those were started within a week before the ballot. Some started within a couple of days and of course, in a lot of cases, we thought they weren't eligible to vote because they weren't there for when the letters were issued. We have spoken to a couple of them and they said that they haven't received any paper work on it.

PN165

So were you aware of any casual employees being sent ballot papers?---A couple.

PN166

Okay. I don't have any further questions, Senior Deputy President. I believe that goes to the evidence that we were seeking to produce.

PN167

THE SENIOR DEPUTY PRESIDENT: Yes thank you Mr Welch. Cross-examination Mr Uphill?

<CROSS-EXAMINATION BY MR UPHILL [3.17pm]

PN168

MR UPHILL: Are you aware, Mr Lawrence, of any employee posting in a ballot paper?---No.

PN169

No. Are you aware of any employee putting in ballot papers in the period after 4 October?---Unfortunately, I was not on duty then because the ballot box was supposed to come on the Monday and then it came on the Tuesday and we were told that we had to have our votes in on that day.

**** RONALD VICTOR LAWRENCE XXN MR UPHILL

PN170

On the Tuesday?---Mm.

PN171

Okay?---And I then went off duty.

PN172

Right. So this is Tuesday, 1 October?---Mm.

PN173

Okay. And the ballot was conducted on 4 October, on the Friday, 4 October - well the ballot was counted, sorry, on 4 October. That is correct, isn't it?---I don't know.

PN174

Right. Okay. So you don't know if anyone put any - put in any ballots in the days between 1 and 4 October?---No. I was off duty then.

PN175

Right. Okay. Thank you, no further questions.

PN176

THE SENIOR DEPUTY PRESIDENT: Any re-examination?

PN177

MR WELCH: No Senior Deputy President.

PN178

THE SENIOR DEPUTY PRESIDENT: Thank you Mr Lawrence, you are excused?---Thank you very much.

<THE WITNESS WITHDREW [3.19pm]

PN179

THE SENIOR DEPUTY PRESIDENT: Any further evidence?

PN180

MR WELCH: No further evidence, Senior Deputy President. I am happy to provide for the Commission before the end of the day the list that Mr Lawrence has provided to us, if that is of help to the Commission. I apologise for the administrative oversight on our part which has led to it not being available to us at this point.

PN181

THE SENIOR DEPUTY PRESIDENT: Perhaps I will hear what Mr Uphill has to say first and then we will see where we go from there.

PN182

MR UPHILL: Your Honour, there are some conclusions that emerge out of what we have heard this afternoon. I am not sure they provide a definitive answer to the issue before you but I think it is clear that, from the company's statutory declaration, there were 40 people who were entitled to vote. The statutory declaration records that, in fact, 21 people voted yes, and 17 voted no, which is a total of 38 people who put in, we say, ballot papers. So from the company's perspective it is acknowledged that there are at least two people - well there are two people who did not vote and I am not sure that there is any way of reconciling that information with the evidence of Mr Lawrence who says that there were five people who didn't - who told him they didn't put in a vote.

PN183

But equally so he has told us that he is unaware of whether people put in ballots after 1 October but equally so it is conceivable that such ballots could have been lodged, given that the ballots were only counted on 4 October. And in my submission the information - or the evidence from Mr Lawrence is unreliable in the extreme and we would say that where there is a conflict between the evidence of Mr Lawrence and the statutory declaration of Mr Sullivan, we submit that the statutory declaration of Mr Sullivan is to be preferred.

PN184

THE SENIOR DEPUTY PRESIDENT: Do you have the ballot papers at all?

PN185

MR UPHILL: I don't have them with me, your Honour, but they could be provided, of course.

PN186

THE SENIOR DEPUTY PRESIDENT: All right.

PN187

MR UPHILL: I don't think I can take it much further than that.

PN188

THE SENIOR DEPUTY PRESIDENT: No. All right. Now what about the power to vary being subject to?

PN189

MR UPHILL: I think the issue can be disposed of fairly easily, your Honour. And reference was made to section 170MD(6). We don't seek to make the variation pursuant to section 170MD(6). We read MD(6) to be only a section that is available where there is a variation which is sought to remove an ambiguity. We say that is not the nature of this application. We say that the application is to amend the existing agreement by varying the rate of pay and introducing a new clause and that is we say is permissible under section 170MD(1), (2), and (3) - - -

PN190

THE SENIOR DEPUTY PRESIDENT: And (4).

PN191

MR UPHILL: And (4), yes. And - - -

PN192

THE SENIOR DEPUTY PRESIDENT: And provided it meets the statutory requirements for certification of an agreement, it is certifiable.

PN193

MR UPHILL: That is right. So the argument that 170MD(6) we think is not a matter that needs to be an issue that impacts upon this application.

PN194

THE SENIOR DEPUTY PRESIDENT: Right. Well when could you get the ballot papers for me to look at?

PN195

MR UPHILL: Your Honour, given that we are back here tomorrow morning, we can supply them tomorrow morning.

PN196

THE SENIOR DEPUTY PRESIDENT: Well what say we list this matter for 9.30 tomorrow morning. The other matter is at 10 o'clock and then we can have a look at the ballot papers and Mr Welch can produce the list of names that he said he has available.

PN197

MR UPHILL: The ballot papers, your Honour, don't identify the individuals who voted. There are no names on the ballot paper.

PN198

THE SENIOR DEPUTY PRESIDENT: How were they - oh, that is right, they were just to tick the box, weren't they?

PN199

MR UPHILL: That is right.

PN200

THE SENIOR DEPUTY PRESIDENT: Was there no way of securing the integrity of the scheme or the system?

PN201

MR UPHILL: Well, your Honour, we say the system is one which has integrity.

PN202

THE SENIOR DEPUTY PRESIDENT: I am not saying it doesn't, I am just saying, were there any steps taken to secure that?

PN203

MR UPHILL: Well there were, your Honour, and one of the issues was whether or not we had on the ballot paper the name of the individual who has voted but we felt that was a ballot form that led to more problems than were dealt with by.

PN204

THE SENIOR DEPUTY PRESIDENT: Oh, I can understand you not having them identifiable but I am not really asking that. I am just sort of saying is there some way of ensuring the integrity of it. Was there some method of checking ballot papers into the ballot box or seeing that people didn't put a bundle in or anything like that.

PN205

MR UPHILL: I understand what you are saying. In some systems people record a ballot and the name is ticked off the list of those people who are eligible to vote.

PN206

THE SENIOR DEPUTY PRESIDENT: Yes.

PN207

MR UPHILL: I am not sure whether that system was used here but I would need to check with Mr Sullivan and it may well be that tomorrow morning we can find that information.

PN208

THE SENIOR DEPUTY PRESIDENT: Yes. I mean it would be helpful if you could demonstrate how the ballot was conducted and what steps were taken to ensure the security, the integrity of it.

PN209

MR UPHILL: Yes.

PN210

THE SENIOR DEPUTY PRESIDENT: Thank you Mr Uphill. Anything else Mr Welch?

PN211

MR WELCH: Oh, nothing further Senior Deputy President.

PN212

THE SENIOR DEPUTY PRESIDENT: Very well. Well I adjourn this matter until 9.30 tomorrow morning and at that time, as I understand it, Mr Welch, on behalf of the employees, will produce the list of names to which Mr Lawrence referred.

PN213

MR WELCH: Yes indeed I will.

PN214

THE SENIOR DEPUTY PRESIDENT: And Mr Uphill will provide us with the materials from the ballot and any other evidence or material demonstrating what steps were taken to ensure the integrity of the ballot. All right? Thank you.

ADJOURNED UNTIL WEDNESDAY, 30 OCTOBER 2002 [3.27pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #LHMU1 LETTER DATED 23 SEPTEMBER TO MR S. SULLIVAN, APPARENTLY FROM DAVID KELLY, UNSIGNED PN10
EXHIBIT #LHMU2 LETTER TO ROBIN GODFREY DATED 11/10/2002 FROM JANINE FREEMAN PN32
EXHIBIT #LHMU3 LETTER ADDRESSED TO MS SIMONE NORTHCOTT FROM ROBIN GODFREY DATED 18/10/2002 PN32
EXHIBIT #LHMU4 THREE AUTHORITIES PROVIDED BY MR WELCH PN80
RONALD VICTOR LAWRENCE, SWORN PN124
EXAMINATION-IN-CHIEF BY MR WELCH PN124
CROSS-EXAMINATION BY MR UPHILL PN168
WITNESS WITHDREW PN179