C2002/315, Transcript of Proceedings [2002] AIRCTrans 4504 (15 November 2002)

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TRANSCRIPT OF PROCEEDINGS


O/N WT05561
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

DEPUTY PRESIDENT McCARTHY

AG2002/315

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LJ of
the Act by the City of Perth and Another
for certification of the City of Perth
(Outside Workforce) Agreement 2002

PERTH

10.05 AM, TUESDAY, 29 OCTOBER 2002

PN1

MR L. JOYCE: I appear on behalf of the City of Perth.

PN2

MS A. BALLANTYNE: I appear on behalf of the MECU organisation.

PN3

MR P. HARTLEY: I appear on behalf of the Australian Municipal, Administrative, Clerical and Services Union, thank you.

PN4

THE DEPUTY PRESIDENT: I have listed this for formal hearing. There were a series of questions that were posed to the parties, I think I have response from you Mr Joyce, but not from others, I don't think. So perhaps if you can take me through the issues associated with the agreement and in particular those issues that were raised?

PN5

MR JOYCE: Yes, your Honour. Your Honour your questions of the parties related to three areas. Firstly in relation to the statutory declaration filed by the City of Perth and in relation to items 3.5, 3.6 and 3.7, there was some, I guess, degree of confusion in relation to the filling out of the statutory declaration, but we confirmed that in relation to those three items the correct response should be "no" in relation to all three matters. In relation to the agreement itself your Honour, the first issue you raised was in relation to clause 2.8. 2.8 of the agreement refers to a contracting out of services provision and the query raised by the Commission related to whether or not that in fact relates to a matter relating to the employer/employee relationship.

PN6

Your Honour, as you allude to section 170LI of the Act, one of the pre-conditions for lodging an agreement is that the agreement be in writing and that it relate to matters pertaining to the employer/employee relationship. This issue, your Honour, has recently been dealt with by Munro J of the Commission. Your Honour, for your information, here is a copy of Munro Js decision. Your Honour this is print PR914378, it is a decision by Munro J in relation to the certification of two agreements. Firstly the Webforge New South Wales Certified Agreement 2001 and the W.E. Smith Hudson Pty Ltd Employment Agreement 2001.

PN7

It deals generally your Honour, with the requirements of section 170LI and in great part Munro J quotes from a decision of Merkel J in the Electrolux case. Relevant to the proceedings this morning, your Honour, from paragraphs 16 and 17 of the Munro decision, his Honour quotes Merkel J at paragraphs 16 and 17 of the decision. Essentially Merkel J commented that section 170LI does not require that all the terms of the agreement pertain to the requisite relationship. He commented essentially that while overall the agreement may well pertain to the employment relationship, there may be conditions within the agreement itself that do not relate, but in Merkel Js view that wasn't fatal essentially to the registration of the agreement. Munro J at paragraph 26 also, again - - -

PN8

THE DEPUTY PRESIDENT: In Merkel Js view?

PN9

MR JOYCE: Sorry your Honour?

PN10

THE DEPUTY PRESIDENT: You were saying that was in Merkel Js view?

PN11

MR JOYCE: Yes your Honour, that was from Merkel Js decision in the Electrolux case. Later on in his decision Munro J makes reference again to Merkel Js Electrolux decision, from paragraph 26 of Munro Js decision, quoting the Manufacturing Grocers case which is from [1986] HCA 23; 160 CLR 341 and in that decision the Court observed that the words "pertaining to" which arise from section 170LI meant, "belonging to", or "within the sphere of the requisite relationship". Sir, our reading of that is that the clause itself wasn't to be read in a restrictive manner. Ultimately Munro J, in his decision, which related to whether or not payroll deductions could be properly part of the certified agreement and therefore certified by the Commission, ultimately he found that a clause of that nature essentially provided a benefit to the employee, even though the central issue itself might not relate to the employment relationship.

PN12

Overall clauses of that nature did provide a benefit and in this matter before you this morning, your Honour, we're of the view that the contracting of services clause similarly provides a benefit to employees, in that it puts in place a series of checks and balances that the City would need to comply with, prior to contracting out services, or even during the process of giving consideration as to whether the services should be contracted out and for that reason, your Honour, we're of the view that that clause does provide benefits to employees and as such is part of the employer/employee relationship.

PN13

THE DEPUTY PRESIDENT: So what is the benefit?

PN14

MR JOYCE: I guess there are three benefits that we would say your Honour. Firstly, it is a broad commitment given by the City to employees not to contract out services that are currently performed. Secondly, where there is a pressure on the City to contract out services, there is a requirement for the City to go through a series of checks that ultimately would seek to prove the benefit of the City retaining the services in-house and both of those we would say, your Honour, ultimately, if successful, would lead to services being retained within the City and therefore no reduction in job opportunities for employees of the City.

PN15

The third benefit, perhaps a little more tenuous, but the third benefit that we would see your Honour, is that where work is contracted out there is an undertaking by the City that it will advise the incoming contractor of the obligation that they owe to employees that they take on in relation to award obligations and certified agreement obligations and there is a reference to the transmission of the agreement.

PN16

THE DEPUTY PRESIDENT: But the last paragraph of that contracting of services refers to the content of tender specifications. How is that a matter pertaining to the employer/employee relationship? That is a matter between the City and tenderers?

PN17

MR JOYCE: Yes, certainly the tender documents obviously would be, there is, we would say, an indirect benefit to employees in that the incoming contractor would have put before it the award obligations and the agreement obligations that would attach to that contract.

PN18

THE DEPUTY PRESIDENT: But that is a matter between the incoming contractor and that incoming contractor's employees, is it not?

PN19

MR JOYCE: Yes, undoubtedly.

PN20

THE DEPUTY PRESIDENT: So how is that to do with the matter pertaining to the City of Perth employees?

PN21

MR JOYCE: In relation to that matter your Honour, there probably is no direct link by any means, but certainly the earlier parts of the clause we would say certainly do provide obvious benefits to the employees. As I indicated before your Honour, that last point is perhaps a little more tenuous, but there is, we would say, some relationship to the overall employer/employee relationship through a benefit, if you like, by the current employer, basically making a point of the award obligations that the employees would be entitled to. Your Honour the second issue in relation to the agreement - - -

PN22

THE DEPUTY PRESIDENT: Well, before you move off that, you made some submissions about not all of the content of the agreement needs to be matters pertaining to the employer/employee relationship, or the relationship between the City, or more accurately the relationship between the City of Perth and its employees. Can you expand on that please?

PN23

MR JOYCE: Yes your Honour, in our view that goes back to part of Merkel Js decision in the Electrolux case, where he basically commented that 170LI does not require all the matters in the agreement to relate to the employer/employee relationship and later in the decision there is a, I guess, a point put that ultimately it might be the case that the agreement has clauses that directly relate to the employer/employee relationship and some clauses that don't. In the event of a dispute, again following what Merkel J was saying, depending on the nature of the clause in dispute, it might be that the Commission's powers to arbitrate could be limited.

PN24

In relation to this clause, for example, your Honour, is a dispute arose in relation to the contracting of services clause, where, for example, the dispute was over the City not specifying in its tender documents that last clause that you made reference to, the practical effect of that would be that the Commission would be very limited in its ability to arbitrate on that, although the parties could conceivably consent to private arbitration. But overall your Honour, it would seem that following what Merkel J has said, it would be open to the Commission to find that overall the agreement does relate to the employer/employee relationship, but there might be clauses within the agreement that perhaps don't have that necessary - - -

PN25

THE DEPUTY PRESIDENT: But is that what Merkel J did say?

PN26

MR JOYCE: Your Honour, this is from paragraph 16 of Munro Js decision where he refers to the Merkel J decision, I think it was paragraph 50 of the Merkel J decision and it says:

PN27

Section 170LI does not require that all of the terms of the proposed agreement must pertain to the requisite relationship. As explained above section 170LI requires that the agreement be characterised as one that is about matters pertaining to the relationship.

PN28

Certainly that is what we would rely on, your Honour, that overall the relationship is one pertaining to the employer/employee relationship. Then over the page in Munro Js decision he quotes, again from Merkel J, where he says:

PN29

If one of the substantive matters provided for in the agreement is not within the required description and that matter is discrete and significant, then the proposed agreement may properly be characterised as about matters that are within the relationship and a matter that is not.

PN30

On our reading of that your Honour, there is a recognition that substantially the agreement relates to the employment relationship, but it might be a discrete provision that is not within that relationship. But having regard to seemingly the broadness of 170LI that that wouldn't actually contravene the requirements of the Act.

PN31

THE DEPUTY PRESIDENT: Well, how does that set your interpretation of that, how does that sit with the Full Bench decision of the Atlas Steel, 29 April, this year?

PN32

MR JOYCE: Sorry your Honour, I'm not able to make reference to that case, I'm not familiar with that at this stage.

PN33

THE DEPUTY PRESIDENT: Thank you. Right, perhaps if you canvas the other issue Mr Joyce.

PN34

MR JOYCE: Thank you your Honour. Your Honour the other issue you raised was in relation to the dispute settlement clause in relation - specifically clause 3.5.1 and 3.5.1.2, these clauses your Honour set out the initial steps to be taken where a dispute arises. In relation to 3.5.1 the agreement requires that the matter initially be referred to the Enterprise Bargaining Consultative Committee for their consideration and to be dealt with by that body. And secondly, 3.5.1.2 relates to issues that don't specific relate to matters arising under the agreement and in both those cases your Honour where no resolution occurs, the intention of the parties is to allow the reference of the dispute to the Industrial Relations Commission.

PN35

In doing that your Honour, the parties are mindful of the requirements of section 170LW of the Act, which limits the Commission's ability to arbitrate matters to matters arising out of the agreement. It would be the position of, certainly of the City of Perth at least your Honour and I believe of the other parties that where matters are referred that might not directly relate to the agreement or arise out of the agreement, nevertheless those matters should be referred to the Commission and the individual Commission member be able to exercise their discretionary powers in relation to conciliation. If it is a matter that proceeded to arbitration your Honour, again we would recognise that for matters not arising out of the agreement, that could only occur as a matter of private arbitration with the consent of the parties.

PN36

THE DEPUTY PRESIDENT: Well, two issues there Mr Joyce, clause, or whatever your term, 3.5.1.1 refers to matters subject to the terms of the agreement, there is a process identified there as discussion between the employee, in plural and supervisor and/or manager, presumably that is the process for matters subject to the terms of the agreement. 3.5.1.2 is headed: Non-EBA matters. Now, presumably that means matters that aren't covered by the - or aren't included currently as items within the agreement asking to be certified. It is only in there that the reference to resolution here is mentioned. So the way that reads, at least my simple reading of it is, matters subject to the terms of the agreement don't come here, matters not subject to the terms of the agreement, do.

PN37

MR JOYCE: Your Honour, my understanding is that the intention of the parties was to allow both sorts of agreements to be referred to the Commission.

PN38

THE DEPUTY PRESIDENT: But that is not what it says, is it?

PN39

MR JOYCE: No and it certainly wasn't the intention to only allow matters that effectively weren't within the jurisdiction of the Commission to come to the Commission and - - -

PN40

THE DEPUTY PRESIDENT: Well this gives it jurisdiction.

PN41

MR JOYCE: Yes.

PN42

THE DEPUTY PRESIDENT: But only with respect to non-EBA matters.

PN43

MR JOYCE: Yes, well certainly the intention from the parties perspective, the way they read the clause is that the intention is for both those matters to be able to be referred to the Commission. The intention was not to read 3.5.1 in isolation, although seeing the way it is set up, you could certainly see how that is read in that way. But as I said your Honour, the intention would be to not, I guess, limit the operation of the dispute settlement clause to allow essentially disputes of any nature to be referred to the Commission, but mindful of the restraints that section 170LW places on the Commission in relation to its ability to arbitrate.

PN44

THE DEPUTY PRESIDENT: Well, to deal with it at all and first 170LW provides a discretion at this point and perhaps not later, but at this point as to whether the Commission will agree or approve empowerment and not later and in other matters, some of which I think you've been involved Mr Joyce, the approach that at least the ASU has said is, well the intent there is that matters that are not currently items, or matters over the application of the current content of specific items in the agreement, the intent is that they could be dealt with by conciliation and they sought and were granted, in a number of cases, approval for the empowerment on that basis. But they added that that was not, except with respect to items that were explicitly within the agreement, to extend to arbitration, unless I misunderstood what was said at that time, but perhaps Mr Hartley can confirm that when I come to him, but you were here, wasn't that what was said?

PN45

MR JOYCE: Yes, that is correct, your Honour and - - -

PN46

THE DEPUTY PRESIDENT: But then that is not what you're saying now?

PN47

MR JOYCE: Well, it certainly would be ultimately how we see this clause operating. We would certainly recognise that broadly there should be the ability for the matters to be referred to the Commission and it is not as I understand the intention of this clause to basically pick and choose between what the Commission might or might not do. We intend for the Commission to deal in a consistent manner with disputes that are referred.

PN48

THE DEPUTY PRESIDENT: Yes, so I am a little unclear. Are you saying that matters that are not current items in the agreement, disputes over the application of those, or disputes over those, could be conciliated but it is not intended that they be arbitrated, whereas matters that are current items in the agreement can be both conciliated and arbitrated, because the issue that would arise is over the application of those items in the agreement. Is that what you're saying?

PN49

MR JOYCE: Yes your Honour, it is and I can see the fundamental difference between how this clause is worded and other clauses, but that is my understanding of how the clause is meant to operate.

PN50

THE DEPUTY PRESIDENT: Yes, because you see I have a difficulty with empowering the Commission to deal with anything that could arise that is not a current item in the agreement, but once the agreement is certified, provides for private arbitration, or private conciliation or whatever, when there is no identified procedure, no identified process and no limit to the scope. It is not the first time this issue has been raised, I hope that we eventually get it right.

PN51

MR JOYCE: Yes, your Honour.

PN52

THE DEPUTY PRESIDENT: So that later version, which is consistent with what I think the ASU has put in the previous Local Government matters is the manner in which you, or the parties, see it operating, is it?

PN53

MR JOYCE: Yes, your Honour, I would certainly say that it should operate in that manner. Having said that I can certainly see how the drafting of this clause has been inconsistent with other agreements, but certainly the - - -

PN54

THE DEPUTY PRESIDENT: They don't have to be the same, I just wanted to be clear what people are intending, because that determines whether it will affect the attitude I take to the empowerment, or approval of the empowerment.

PN55

MR JOYCE: No, it certainly would be the intention that it operates in the manner previously outlined by the ASU your Honour, effectively that is the way that disputes within the industry have been dealt with historically and there has been no intention to depart from that sort of approach.

PN56

THE DEPUTY PRESIDENT: Okay, thank you. Can I take you back to the other matter, that is clause 2.8. If it is not a matter, if I find that it is not a matter that falls within 170LI, do you have any comment or suggestions to make to progress this, or does it stop in its traps?

PN57

MR JOYCE: Yes, your Honour, the clause itself was one that the officers within the CD negotiating the agreement didn't actually intend to have included in the agreement, but it was a request from senior management that it go in. We don't think that effectively that clause being struck out would diminish the operation of the agreement.

PN58

THE DEPUTY PRESIDENT: Well, I can't strike it out, I can't touch it.

PN59

MR JOYCE: If, your Honour, that was the only issue that prevented the agreement from being certified, then I suspect the City of Perth would be effectively mindful to remove the clause from the agreement and to go again through the certification process. As I indicated your Honour it was one of those clauses that was ultimately only included at the last moment, effectively, in any case and it is not a matter that the City would, I suspect, insist on being included if that was the cause for the agreement not to be certified.

PN60

THE DEPUTY PRESIDENT: Yes, okay, thanks Mr Joyce. Ms Ballantyne, or Mr Hartley, who is going first? Ladies first?

PN61

MS BALLANTYNE: I apologise for the lack of response on the e-mail, we had a number of difficulties in getting access, but I did send the response through this morning.

PN62

THE DEPUTY PRESIDENT: There is no difficulty, we're here.

PN63

MS BALLANTYNE: Yes. If I address the issue of 2.8, it has a very long and contentious history in relation to the employees and the employer. Four years ago when we started the first agreement with the City of Perth outside workers, there was quite a considerable number of contract employees being used and equipment being used within the City by those contractors and it was causing a great deal of concern to the employees. Subsequent negotiations over the last four years has resulted in this type of paragraph being added. I take on board your comments in relation to the tender specifications issue.

PN64

Currently the City of Perth, from looking at the documentation on tender specifications, actually put these requirements into the tender specifications, that the award and the EBA must be adhered to in the contract, so that all employees that are employed, whether by contract or directly by the City of Perth are actually employed under these provisions. So those provisions are already currently operating within the City of Perth, which is probably what led to the City putting that type of clause in there. It is a current operational practice.

PN65

THE DEPUTY PRESIDENT: I can imagine why the intent and the reasons why it is there, but that is really not an issue for me. The only issue for me is whether it can be there.

PN66

MS BALLANTYNE: I understand that your Honour, I just thought you would like a bit of background history on the reasons why and it is certainly one that the employees were quite happy to see in security of employment and security of tenure within the City of Perth.

PN67

THE DEPUTY PRESIDENT: I have no difficulty with the desires of the City and the desires of the employees to have an understanding, or an agreement of that nature and that is not an issue for me though. The only issue for me is whether having come to that agreement it can be a provision in an agreement that can be certified.

PN68

MS BALLANTYNE: I am also mindful Commissioner this is the second time that this document has been through the process so it is certainly causing some anxiety with the outside employees as to when they might finally have a document. So I am very mindful of that, if we can find a solution.

PN69

THE DEPUTY PRESIDENT: Do you have any suggestions? If it is not a provision that falls within 170LI, do you have any suggestions how it be dealt with, that is the agreement and that clause?

PN70

MS BALLANTYNE: Having just made a statement your Honour that you cannot remove anything out of the document, that makes it a very difficult provision. It is obviously the wording of the tender specification, particularly the past paragraph, that is of concern in relation to the Act.

PN71

THE DEPUTY PRESIDENT: Yes, I was careful to say I could not remove anything.

PN72

MS BALLANTYNE: Well I certainly would seek, if that was the case, to request the Commission to certainly look at maybe we could reword it in such a way that it would not cause the problem, but lose the - - -

PN73

THE DEPUTY PRESIDENT: Not for me to make suggestions about the wording of your agreements, they are a matter for you.

PN74

MS BALLANTYNE: The result of that would be it would have to go back through the process if we were to alter it and that causes great concern, given that initially we first had the first vote for this document in June and it is now October and probably if we did the process again we're probably looking at Christmas and that is certainly causing a lot of hardship and bad feeling and morale in the workforce. So it is certainly a difficult one to deal with, but the intention is that that is currently what is happening.

PN75

THE DEPUTY PRESIDENT: Yes, okay, thanks Ms Ballantyne. The other issue?

PN76

MS BALLANTYNE: The dispute settlement procedure, I would actually suggest to the Commission that there is actually a point missing. There actually should have a 3.5.3, sorry - - -

PN77

THE DEPUTY PRESIDENT: 3.5.1.3?

PN78

MS BALLANTYNE: Thank you, yes, your Honour, that shouldn't apply, because the intention of it was that the discussions we had in negotiations was that matters that belonged to the EBA could not be discussed through with the supervisor, etcetera, the manager, because they were not a party to the discussions of the agreement. The party that was a discussion to the agreement was the consultative committee. So the intention was that where the agreement was in dispute, or part of the agreement was in dispute, that that consultative committee, the EBA consultative committee, should have the ability to deal with that issue.

PN79

The intention was that 3.5.1.2(a), (b), (c), (d), would apply in all other case and then there should have been a 3.5.1.3, which then involved both the union and the Industrial Relations Commission in the matter and I would point to you, your Honour, that that numbering has been missed off the document in carelessness by all parties in checking the document. But the intention was that we had two processes and that the union and the Commission were meant to be involved in both of them.

PN80

THE DEPUTY PRESIDENT: Two areas of issues, one and two processes, but then they marry - - -

PN81

MS BALLANTYNE: On the last two paragraphs after point (d) on page 36.

PN82

THE DEPUTY PRESIDENT: Yes.

PN83

MS BALLANTYNE: And I will certainly be seeking to have that numbering put into the document to - - -

PN84

THE DEPUTY PRESIDENT: That is most unfortunate, it alters the whole context of it.

PN85

MS BALLANTYNE: It does and that was the original context of what we intended for the document.

PN86

THE DEPUTY PRESIDENT: With respect to the other issue associated with this, do you agree with Mr Joyce about - - -

PN87

MS BALLANTYNE: I do concur with Mr Joyce on this, yes.

PN88

THE DEPUTY PRESIDENT: Yes, okay, thanks Ms Ballantyne.

PN89

MS BALLANTYNE: Thank you your Honour.

PN90

THE DEPUTY PRESIDENT: Mr Hartley?

PN91

MR HARTLEY: Thank you Mr Deputy President. Just in relation to 2.8, obviously the Commission understands the intention of the clause, but I would just like to set out that the provision protects the existing positions of existing employees, by preventing the wholesale contracting out of positions. Accordingly this relates directly to the relationship of the security of the employees and therefore the relationship between the employee and the employer. The last paragraph operates in conjunction with the clause as a whole and provides an undertaking by the employer that they will not pay contractors at a lower rate than its current employees, hence acting as a disincentive to actually contract out employees.

PN92

I would probably like to make comment on the decision which was referred to by Mr Joyce. The last paragraph within that clause obviously pertains to an obligation by the employer, which does pertain to the relationship with the employees because it makes reference to obviously a third party, just like a union payroll deduction clause does. Obviously, there is a third party commitment that is involved within there, but it doesn't directly relate to the commitment from the employer and the contractor, it probably more relates to an obligation that has been given by the City by agreement to the employees that if they were to choose to contract out the work that the employees are currently doing, that they would not get paid a lesser rate.

PN93

Obviously the contracting out of work may actually specifically relate to the employing of the existing employees who are currently doing the work on behalf of the contractor. That would probably, in a sense, ensure that the rate of pay that is actually given to the employees, who are currently at the City who may be employed by the contractor, they would actually be employed under the same conditions of employment. All that I see that clause actually specifically saying is it is an obligation by the employer to the employees through the agreement and therefore pertains to the relationship between the employer and the employee.

PN94

Obviously it only relates to an obligation in relation to advertising for contractors and it does relate, I suppose, directly to the conditions of the contract work, but in more of a sense that it relates to the commitment given to the employees that they will not try to contract out the work simply because it is cheaper.

PN95

THE DEPUTY PRESIDENT: But you see it doesn't say that, does it. One it is not just advertising, it is the actual tender specifications, that goes well beyond advertising and then it confines the requirements of a contractor to two instruments and two instruments only.

PN96

MR HARTLEY: Obviously it will directly relate to the contract that they have with the contractor, but it also indirectly relates to an obligation given by the employer to the employees that contract work will not be less than the current rate of pay, therefore giving a disincentive to the employer to actually contract that work out. So it is in a sense protecting the security of the employees' work by adding a disincentive and I probably think that does relate to an employer/employee relationship.

PN97

THE DEPUTY PRESIDENT: I will think about it. Do you have any comment on the only instruments that are identified there?

PN98

MR HARTLEY: I'm sorry?

PN99

THE DEPUTY PRESIDENT: Well, what it says is and I'm sorry to labour this but it is important that these things get right.

PN100

The contractor to remunerate employees in accordance with an appropriate award, or industrial agreement.

PN101

Now, I don't know what an industrial agreement is, there doesn't appear to be any definition of it, but if the terminology is intended to be the same as in other jurisdictions, then what this would appear to be saying is, and correct me if I'm wrong, but what it appears to be saying in any tender specifications there will be a requirement for a contractor to remunerate employees in accordance with an award, or an industrial agreement. Now, if one interprets industrial agreement to mean certified agreement, or a State registered industrial agreement, does that at least not have the potential to say well the contract between two other parties, namely the City and another contractor, will not allow other forms of employment regulation?

PN102

MR HARTLEY: Well I interpreted that clause and my understanding was the intention of that clause was to specifically say within the contract tender document that the employer give an obligation to the employees that the tender document contained an alert, if you like, to the actual potential builders or contractors, that the transmission of business provisions will apply and therefore the award or industrial agreement which they are currently being employed under, will apply. So I just see it as an obligation that within the tender document the actual builder has been made aware of the transmission of business clause and as a result of that transmission of business the award or industrial agreement shall apply.

PN103

THE DEPUTY PRESIDENT: It is "and to alert about the transmission".

PN104

MR HARTLEY: Well I still think it is just specifically actually trying to say that the employer will give an obligation to the employees and also to any future relationship with contractors that if they were to advertise positions then the current conditions of employment would apply.

PN105

THE DEPUTY PRESIDENT: But if their current conditions of employment, that is the employees of a contractor, are not governed by an award and industrial agreement, what is the situation then? They are governed by some other instrument, maybe an Australian Workplace Agreement?

PN106

MR HARTLEY: It would probably relate to the transmission of business and that is another kettle of fish.

PN107

THE DEPUTY PRESIDENT: Okay, do you wish to add anything on that issue.

PN108

MR HARTLEY: Nothing further thank you.

PN109

THE DEPUTY PRESIDENT: On the other issues Mr Hartley?

PN110

MR HARTLEY: The 3.5 I would probably confer with the points addressed that the actual creation of the clause was probably slightly poorly drafted where it actually allows the referral of non-EBA matters to the Commission, we would see that the last two paragraphs within 3.5.1.2, could actually be inserted as a preamble to 3.5.1 and which would effectively relate to a matter subject to the terms of the agreement and also non-EBA matters, but the changing of a reference to 3.5.1.3, was the intention obviously of the union and it was just probably poorly drafted. Obviously the commitment will need to be given in relation to previous agreements that only those matters that relate to an interpretation application of the agreement, can be referred to the Commission and I am prepared to go through those previous submissions if you like.

PN111

THE DEPUTY PRESIDENT: So what you are saying is that the responses you gave in recent agreements is the same approach you would be applying with this agreement?

PN112

MR HARTLEY: That is correct Deputy President, yes.

PN113

THE DEPUTY PRESIDENT: Yes. I won't ask you to go through it now Mr Hartley, but can you, just as for sake of completeness, e-mail that to me, to my chambers.

PN114

MR HARTLEY: Certainly.

PN115

THE DEPUTY PRESIDENT: It may not be a matter I need to address because we have to overcome 2.8.

PN116

MR HARTLEY: Sure.

PN117

THE DEPUTY PRESIDENT: Thank you. Mr Joyce do you have anything further you want to add?

PN118

MR JOYCE: Yes, your Honour. Your Honour just in relations to 2.8, if that final sentence is the significant issue, it would seem to be open to the parties under section 170LV of the Act, to give undertakings to the Commission in relation to this part of the agreement and those undertakings I would say, your Honour, would either be to agree that that part of the clause has no effect and is to be disregarded by the parties, because of the issues that you've properly raised, or that the parties, if this agreement is certified by the Commission, that the parties actually remove that final sentence from the copies of the agreements that operate within the work place. That might be an appropriate way to proceed your Honour if that addresses the concerns that the Commission has. It would seem that that part of the clause is different to the other parts of the clause, in that it obviously relates to non-employment related matters, whereas, as per our previous submissions, we say that there is a case to be made for those provisions forming part of the employment relationship.

PN119

THE DEPUTY PRESIDENT: Yes, I won't certify this agreement this morning, I will contemplate it, but that may be a matter you could canvas with the other parties. There have been other occasions where the Commission has agreed following undertakings by the parties that a particular provision will not be applied, or given effect to, and I would refer you to the Full Bench decision in PR922821, in that regard and where there have been undertakings of that nature the Commission has been prepared to certify the agreement, that is something that I am not going to ask you to do in terms of giving undertakings, but it may be something you want to do and that may facilitate the certification of the agreement. In any event, I suspect, as a matter of what happens in practice, the clause probably doesn't really add much to how the place operates in any event, because whoever would be an incoming contractor, presumably at law would be required to comply with whatever legal obligations there are anyway.

PN120

MR JOYCE: Yes, that is certainly the case your Honour.

PN121

THE DEPUTY PRESIDENT: So it may be something the parties wish to consider and I will wait until I hear from all of you in that regard. So this matter is adjourned on that basis.

ADJOURNED INDEFINITELY [10.51am]