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Australian Industrial Relations Commission Transcripts |
AUSCRIPT PTY LTD
ABN 76 082 664 220
Level 7, ANZ House 13 Grenfell St ADELAIDE SA 5000
Tel:(08)8205 4390 Fax:(08)8231 6194
TRANSCRIPT OF PROCEEDINGS
AUSTRALIAN INDUSTRIAL
RELATIONS COMMISSION
SENIOR DEPUTY PRESIDENT WATSON
SENIOR DEPUTY PRESIDENT CARTWRIGHT
COMMISSION WHELAN
C2001/4628
APPEAL UNDER SECTION 45 OF THE ACT
BY MR T. MAZEY AND THE AUSTRALIAN
MANUFACTURING WORKERS UNION AGAINST
THE DECISION OF COMMISSIONER REDMOND
RE MAZEY AND ELECTROLUX HOME PRODUCTS
PTY LIMITED
ADELAIDE
2.20 PM, TUESDAY, 12 FEBRUARY 2002
PN1
SENIOR DEPUTY PRESIDENT WATSON: Yes, I will take appearances, please?
PN2
MS J. SMITH: May it please the Commission, I appear for the appellants and with me is Mr J. WATSON. May it please the Commission.
PN3
SENIOR DEPUTY PRESIDENT WATSON: Yes, thank you.
PN4
MR M. ATS: May it please the Commission, I appear with MR J. BRAITHWAITE for the Australian Workers Union in this matter. May it please the Commission.
PN5
SENIOR DEPUTY PRESIDENT WATSON: Yes, you are seeking leave to intervene in effect?
PN6
MR ATS: My understanding, erroneous as it may be, Commissioner, is as a party to the agreement under consideration that we would - - -
PN7
SENIOR DEPUTY PRESIDENT WATSON: I see, yes.
PN8
MR ATS: - - - properly seek to appear. You will note that we have not filed any submissions to date. I don't, at this point, intend to make substantive submissions. We, of course, have an interest in the matter and we will just see how the submissions develop today - - -
PN9
SENIOR DEPUTY PRESIDENT WATSON: Yes.
PN10
MR ATS: - - - and if it becomes necessary or convenient to put anything we will seek to do so at that time.
PN11
SENIOR DEPUTY PRESIDENT WATSON: Very well. Yes, very well, I think you are right. Go - I'm sorry?
PN12
MS ZEITZ: May it please the Commission, I seek leave to appear for Electrolux Home Products Proprietary Limited. Could I also indicate to the Commission that Mr Kourakis QC, has been briefed to put the submissions this afternoon. He has been unfortunately detained in the Court of Criminal Appeal, not as a defendant I hasten to add, and he should be in transit as the Commission starts. However, I'm able to proceed until he arrives, if the Commission pleases.
PN13
PN14
SENIOR DEPUTY PRESIDENT WATSON: Now, the purpose of the proceedings today is to hear brief oral submissions in support of the submissions. Now, I understand, Ms Zeitz, Electrolux raises some preliminary issues as to standing and competence?
PN15
MS ZEITZ: Yes, we do, your Honour, and they are set out in the written submissions. I understand from Ms Smith that she has a preliminary application that she wishes to make, so perhaps if I can - - -
PN16
SENIOR DEPUTY PRESIDENT WATSON: Very well, thank you. Ms Smith?
PN17
MS SMITH: Yes, your Honour, we seek leave to amend the notice of appeal. It erroneously states that the appeal is brought under section 45(1)(g) where that should in fact read section 45(1)(b).
PN18
SENIOR DEPUTY PRESIDENT WATSON: Just a moment while I find the - it is always the hardest thing to find in these matters, the appeal documents. So you are seeking to amend the notice to make it under 1E rather than - - -
PN19
MS SMITH: 1B, B for Bob.
PN20
SENIOR DEPUTY PRESIDENT WATSON: B for Bob. Just one moment. What is the award or order?
PN21
MS SMITH: It is the enterprise agreement brought pursuant to section 170LK with consent of the parties, however, our submissions are as the consent wasn't genuine and informed that there was, in fact, no consent. Therefore, in our submissions the appeal can be brought under this subsection, your Honour.
PN22
SENIOR DEPUTY PRESIDENT WATSON: But "award" means under the definitions in section 4:
PN23
An award or order that has been reduced to writing under subsection 143(1) but does not include an order made by the Commission in a proceeding under subdivision (b) Division 3 of Part 6A.
PN24
which I think is a - - -
PN25
MS ZEITZ: Excludes agreement between - - -
PN26
SENIOR DEPUTY PRESIDENT WATSON: - - - excludes a range of agreements.
PN27
MS SMITH: Sorry - I couldn't hear you properly?
PN28
SENIOR DEPUTY PRESIDENT WATSON: The definition excludes, in effect, agreements such as the LK agreement. Do you need an opportunity to consider that and perhaps Mr - - -
PN29
MS SMITH: Yes.
PN30
SENIOR DEPUTY PRESIDENT WATSON: - - - Kourakis might have arrived by then as well.
PN31
MS SMITH: Yes, your Honour, thank you.
PN32
SENIOR DEPUTY PRESIDENT WATSON: Yes, very well. We will adjourn and perhaps the parties can let us know when you are ready to proceed. We will adjourn briefly.
SHORT ADJOURNMENT [2.27pm]
RESUMED [2.42pm]
PN33
SENIOR DEPUTY PRESIDENT WATSON: Yes, I think during the adjournment it occurred to me that I was, I think, focusing on the wrong aspect of the definition of the award and it was, in fact, section 143(1) and 1(a) which I was drawing to the attention of Ms Smith and I did have my associate draw that to her attention. Yes, Ms Smith?
PN34
MS SMITH: Yes, your Honour, I would just like to point out the section that your associate referred to, also says:
PN35
For the purposes at section 143(1)(a) the definition is for the purposes of the subsection (1), none of the following is an award or an order affecting the award.
PN36
PN37
However, after discussions we will leave the appeal application unamended, your Honour, and proceed as it was originally stated.
PN38
SENIOR DEPUTY PRESIDENT WATSON: Yes.
PN39
MS SMITH: I understand that you have the written submissions from us and the respondent. It may be a good place to start if we just reply to their comments with respect to competency and grounds for this appeal.
PN40
SENIOR DEPUTY PRESIDENT WATSON: Yes, just one moment. Mr Kourakis, you are content to rely on the written submissions in respect of competence and standing?
PN41
MR KOURAKIS: If the Commission pleases, I am happy to summarise it but really I would be adding no more than that which is in the written submissions. So I am happy just to rely on - - -
PN42
SENIOR DEPUTY PRESIDENT WATSON: Yes, thank you. Yes, Ms Smith?
PN43
MS SMITH: Your Honour, we admit paragraph 1 of the respondent's submissions. However, with respect to the claim that the AMWU has at no time sought to be bound by the agreement pursuant to section 170M(3), the AMWU was given no opportunity to seek to be bound by the said agreement. Section 170M requires that the application to be bound to an agreement is to be made either at or prior to certification. As the affidavit evidence provided by Mr Jim Watson shows the AMWU did not become aware that this application has been made until such a time that the certification hearing had already commenced. Paragraph 2 of the respondent's submissions is admitted.
PN44
With respect to paragraph 3 the appeal is brought pursuant to section 45(1)(g). This is a decision of a member of the Commission that:
PN45
A member has jurisdiction or a refusal or failure of a member of the Commission to exercise jurisdiction in a matter arising under the Act.
PN46
It is our submission that Commissioner Redman's jurisdiction enabled him to adjourn the hearing. The appearance of Mr Ats did cause some doubt as to whether the requirements of the agreement had been met.
PN47
SENIOR DEPUTY PRESIDENT WATSON: Well, did it? Mr Ats was, in accordance to the Act, only allowed to appear in relation to the issue of binding the AWU to the agreement, not as to the substantive issues.
PN48
MS SMITH: Yes, it is my understanding that Mr Ats attempted to see that the requirements of the Act was complied with, however, he was unable to put that argument.
PN49
SENIOR DEPUTY PRESIDENT WATSON: As a result of the statute and Full Bench decisions in relation to it.
PN50
MS SMITH: Sorry?
PN51
SENIOR DEPUTY PRESIDENT WATSON: As a result of the operation of the statute - - -
PN52
MS SMITH: Yes.
PN53
SENIOR DEPUTY PRESIDENT WATSON: - - - the Act, and Full Bench decisions in relation to its application, ie, the extent of intervention or appearance by a union.
PN54
MS SMITH: Yes. The appellant's submissions and affidavit evidence details the factual circumstances and the authorities relied upon to support this appeal. Paragraph 4 of the respondent's submissions are denied. The AMWU has standing to institute the appeal pursuant to subsection 45(3)(aa). Section 170LF(1) states that:
PN55
An appeal to a Full Bench under section 45 may be instituted by any person who is entitled under section 170JD to apply for the variation or revocation of an order under this path, except -
PN56
PN57
SENIOR DEPUTY PRESIDENT WATSON: I'm sorry?
PN58
MS ZEITZ: That applies to termination of employment, Ms Smith.
PN59
MS SMITH: Okay, I will withdraw that. If the AMWU is denied standing in this appeal the other - second applicant, Therese Mazey - - -
PN60
SENIOR DEPUTY PRESIDENT WATSON: Can I just say, Ms Smith, it is not a matter of denying the AMWU standing, it is a question of whether it has standing or not. It is not a discretionary matter for the Full Bench to determine, it is a matter of whether at law it has standing or not, but go on.
PN61
MS SMITH: Yes. So we would concede on the respondent's submissions that the AMWU does not have standing pursuant to the Act, however, the applicant, Therese Mazey, does have standing. Therese Mazey is an employee to whom the agreement relates at the AMWU is her representative. Paragraph 7 of the respondent's submissions are admitted, however, the AMWU is unable to establish that it was requested to represent a person as mentioned in subsection 170LK(4) at the time of certification because we did not have any notification that the application had been made. This again appears in the affidavit of the AMWU Assistant Secretary, Jim Watson.
PN62
With respect to paragraph 8 of the submissions, the document referred to was provided to the AMWU and other parties at the conference before Commissioner McCutcheon. This document and the statement made by Shane Bakewell to persons present at the conference are clearly inconsistent. The document referred to as section 170LK application with respect to their plastics department, however, Bakewell stated that the LK application had been withdrawn and a further application would be made pursuant to section 170LJ.
PN63
In reply to paragraph 10 of the respondent's submissions this appeal, as previously stated, is brought pursuant to section 45(1)(g). In reply to paragraph 11 of the respondent's submissions we submit that the appeal is competent. Paragraph 12 of the respondent's submissions - - -
PN64
SENIOR DEPUTY PRESIDENT WATSON: Well, just in relation to that. What do you say is the jurisdictional issue arising in the 45(1)(g).
PN65
MS SMITH: The jurisdictional issue?
PN66
SENIOR DEPUTY PRESIDENT WATSON: Yes.
PN67
MR KOURAKIS: It is not just - section 45(1)(g) relates to - - -
PN68
SENIOR DEPUTY PRESIDENT WATSON: The decision of a member of the Commission that the member has jurisdiction or refusal or failure of a member of the Commission to exercise jurisdiction in a matter arising under the Act.
PN69
MS SMITH: May I just have a moment.
PN70
SENIOR DEPUTY PRESIDENT WATSON: Yes.
PN71
MS SMITH: We say that Commissioner's jurisdiction relates to ensuring that the whole of the certification process is carried out properly and is i compliance with the Act pursuant to I think it is division 4 is it. Yes, and - - -
PN72
SENIOR DEPUTY PRESIDENT WATSON: Which requires - - -
PN73
MS SMITH: - - - replies pursuant to section 170LT(5) and (6) that the agreement be properly explained to the persons being bound by the agreement.
PN74
SENIOR DEPUTY PRESIDENT WATSON: It requires a satisfaction by the Commissioner of that fact on the basis the materials before me. Thank you. Is such satisfaction a jurisdictional issue? Sorry, an argument about whether satisfaction - - -
PN75
MS SMITH: Not as specific to jurisdiction per se but jurisdiction as to whether the requirements of the Act under Division 4 have been complied with. Mr Ats appeared and did attempt to alert the Commission to some potential shortcomings with the certification process but was denied that opportunity. Therefore it is our submission that the Commission refused or failed to exercise their jurisdiction with respect to that division of the Act.
PN76
In response to paragraph 15 of the respondent's submissions, the appeal does not challenge the validity of the proceedings before Commission Redman. The appeal challenges the procedures prior to certification. It was not made clear to employees of Electrolux Home Products that the AMWU was being excluded from the certification of this agreement. Therefore the consent to certify the agreement by the employees was not genuine and informed and the requirements of the Act have not been complied with.
PN77
Paragraph 22 of the respondent's submissions state that the appeal was not properly constituted. Each individual employee bound by the agreement has not been given notice of the appeal. The AMWU was unable to provide individual notices to all employers without the knowledge of which employees are bound by the agreement. Notice was, however, provided to human resources manager Gerry Quirk. We seek an exemption from the requirement to serve every employee bound by the agreement as it would be impractical to provide each individual employee with the appeal documents. As Gerry Quirk has been provided with the appeal documents, this deficiency of the appeal could be remedied by Mr Quirk making available these documents available to the employees affected.
PN78
With respect to paragraph 24 of the respondent's submission. As the AMWU was not aware of the certification hearing until it was too late, they were unable to argue the failure to meet the requirements necessary for certification. As the respondents have opposed the calling of evidence in relation to this matter and wish the preliminary points to be determined, the deponents of the affidavits are not here today with the exception of Mr Watson. We agree with the respondents that there is insufficient time for witness evidence to be heard today. Finally, if the Commission is of the view that section 170LT has been complied with we submit that the application is in breach of section 170LU(8) as per our written submissions which refer to the authorities relied upon. Your Honour, we seek a determination with respect to competency of the appeal and ask for the Commission to provide future directions. Thank you, your Honour.
PN79
SENIOR DEPUTY PRESIDENT WATSON: Yes, thank you. Mr Ats, sorry, did you wish to - - -
PN80
MR ATS: No, we do not propose to make any submissions at this point.
PN81
MR KOURAKIS: If the Commission pleases, in the light of the concession that the AMWU is not a proper party to whom really all the grounds which rely on or complain of either misleading or not giving notice to the union fall to one side in my submission don't need to be further addressed. The only remaining question then is this, whether the grounds of appeal are grounds of appeal within the terms of section 45, that is the grounds obviously pursued by Ms Mazey and your Honours an appeal pursuant to section 45(1)EAA who gets the decision of a member of the Commission to certify an agreement can only be made on the limited grounds set out in that subparagraph and none of the grounds of appeal extend to that.
PN82
The only other ground of appeal on which Ms Mazey might rely is section 45(1)(g) and that, of course, has been asserted and neither the application to amend is not proceeded the opening of the notice, of course, refers to that subground. In my submission, none of the grounds which are articulated in the notice are grounds with respect to jurisdiction. Now, insofar as ground 1 complains about the certification of an agreement that relates only to part of the business, that requirement is clearly run within jurisdiction, it being a requirement that is found in section 170LU(8). That is a provision which governs the exercise of the Commissioner's discretion, if you like, using that in a very broad sense, to certify an agreement or not.
PN83
It doesn't go to jurisdiction, it is a section which regulates the exercise of the jurisdiction. So, with respect, that ground is not one which falls within 45(1)(g), nor does it fall within EAA not being an anti-discrimination ground.
PN84
SENIOR DEPUTY PRESIDENT WATSON: That provision isn't one of a level of satisfaction as to a certain thing but the Commissioner must refuse to certify an agreement in certain circumstances. It is somewhat different to some of the other grounds, for example, in LT.
PN85
MR KOURAKIS: Yes. With respect, the matter raised by your Honour, the Senior Deputy President is important and in my submission, reinforces our proposition that it doesn't go to jurisdiction. If it is dependent on proof that it would have the difficulties set out in 170LU(8) then that makes it even less likely that it is a matter of jurisdiction. That is the onus of showing that the agreement would fall foul of that provision is on an objector, presumably, and so can hardly be a matter of jurisdiction. Your Honours, the next ground, and I think I can say this as of grounds 2, 3 and 4 - - -
PN86
SENIOR DEPUTY PRESIDENT CARTWRIGHT: Just on that, if the objector though is not able to intervene in the proceedings, how then does the Commission proceed?
PN87
MR KOURAKIS: Well, it will just be that a circumstances which might have led to non-certification will never be proved before it. But thee is not some obligation to be satisfied of the absence of that problem. Can I just take a moment to go to - - -
PN88
COMMISSIONER WHELAN: The Commission must be satisfied that it just have jurisdiction in a positive sense.
PN89
MR KOURAKIS: As to matters of jurisdiction it does and what we say about 170LU is that it is a matter of a decision within jurisdiction. That is 170LU(8) assumes a Commissioner with jurisdiction that exhorts that Commissioner to refuse to certify an agreement if it applies to only part of the business and the Commission considers that the agreement defines that part in a way that results essentially in unfairness to the other employees in not being part of it. But as I say, it is not a matter of jurisdiction, it is a matter of a reason to certify an agreement pertaining to employment matters which would otherwise be capable of certification.
PN90
I can perhaps contrast it in this way, if one goes to 170LH, in my submission, that sets out the requirements as to jurisdiction and, in fact, LH commences by saying so. It sets out who the agreement must be between and then LI provides that for an application to be made to the Commission there must be an agreement in writing about matters pertaining to the relationship and your Honours will there see the usual definition. And 170LI(2) then provides that that agreement, that is the agreement with respect to which there will be an application to certify must be made in accordance with certain other provisions.
PN91
Now, that is a section which is cast in terms indicative of jurisdiction. The Commission will only have jurisdiction to certify agreements which fall within those sections. 170LU, however, appears firstly should be observed after 170LT which is the first section in the division referring to certification and then appears within 170LU which, in its numerous subsections provides for the tests that the Commissioner is to apply in the exercise of that jurisdiction. So essentially we say, if there was any error in certifying despite those provisions, then it is an error within jurisdiction, certainly not in jurisdictional error. Your Honours, the other - - -
PN92
SENIOR DEPUTY PRESIDENT WATSON: What if, looking at 170LI(2) the agreement was not made in accordance with LJ, LK or LL?
PN93
MR KOURAKIS: That is not as clear but there would be at least an argument in my submission that that was a jurisdictional question. That is not as clear but there would be a possible argument but I say that only to distinguish between that and 170LU. That would be the high water mark as to jurisdiction.
PN94
SENIOR DEPUTY PRESIDENT WATSON: Yes, it uses different terminology than that which appears later in relation to satisfaction by the Commissioner.
PN95
MR KOURAKIS: Yes, yes.
PN96
SENIOR DEPUTY PRESIDENT WATSON: But rather requires that the agreement must be made - - -
PN97
MR KOURAKIS: Yes.
PN98
SENIOR DEPUTY PRESIDENT WATSON: - - - in accordance with those provisions and if it isn't - - -
PN99
MR KOURAKIS: Yes, and if - - -
PN100
SENIOR DEPUTY PRESIDENT WATSON: - - - then presumably it may be beyond jurisdiction.
PN101
MR KOURAKIS: Yes, I mean, it is odd that if you read 170LI(2) to be a matter that determines jurisdiction it would therefore be a preliminary matter for the Commissioner to determine but under 170LT and LU the Commissioner is told that he or she cannot certify unless satisfied of those things. If it is a matter of jurisdiction, well, they would never have got the point of even considering the agreement unless all those provisions at 170LJ or LK had been followed. That is put clumsily. The Commissioner has told the - - -
PN102
SENIOR DEPUTY PRESIDENT WATSON: Probably reflective of the Act is it.
PN103
COMMISSIONER WHELAN: The drafting, yes.
PN104
SENIOR DEPUTY PRESIDENT WATSON: The drafting.
PN105
COMMISSIONER WHELAN: In a practical sense, would this mean that if section - if, for example, and I am not saying that this is the case - if, this agreement did not comply with section 170LU(8) - - -
PN106
MR KOURAKIS: Yes.
PN107
COMMISSIONER WHELAN: - - - and there is no standing to appeal against it then the agreement, in fact, is void.
PN108
MR KOURAKIS: No, no, in my submission it is not because - I think the difficulty is you postulate, Commissioner, that in fact it does not comply with LU(8). In a sense, one almost immediately has to ask in what proceedings is that shown to be the case.
PN109
SENIOR DEPUTY PRESIDENT WATSON: Well, perhaps in - - -
PN110
COMMISSIONER WHELAN: Enforcement proceedings.
PN111
SENIOR DEPUTY PRESIDENT WATSON: - - - enforcement proceedings in the court - - -
PN112
COMMISSIONER WHELAN: Yes.
PN113
SENIOR DEPUTY PRESIDENT WATSON: - - - where an applicant seeks to enforce an award provision overridden by the agreement.
PN114
MR KOURAKIS: Well, then one gets to the difficult area as to what force the effect of the certification has even if it is attended by error albeit one within the jurisdiction and the normal rule would be that it would have validity despite the error in jurisdiction until set aside. That, in my submission, raises a number of complex questions which don't necessarily - - -
PN115
SENIOR DEPUTY PRESIDENT WATSON: Some of which were raised before Merkel J in the electorate.
PN116
MR KOURAKIS: If your Honours - as I say, it is not a matter that needs to be determined here. All that is important is to decide whether LU is a jurisdictional matter or not and in my submission, given the structure of the Act, it does not appear to be so, whatever conclusion might be reached about compliance with all of the requirements of 170LK. Your Honours, the grounds 2 to 4 are a ground which simply refer to the complaints made by the union about lack of notice but they come from nothing. If the union has no standing and if they don't also tell or have some relevance as to a ground that might be pursued by Miss Mazey but that just does not appear in any way to be the case.
PN117
If there was a ground that said, for example, the notice of meeting did not refer to the right of a union member to call in the union and it was said that therefore compliance with 170LK was not established. If that was the ground then, of course, all the surrounding circumstances about why the union was or wasn't there might have some part in that. There is no such ground and if I can just observe although we haven't come to it yet obviously, nor do the affidavits in fact go that far as to suggest that that notice - that that wasn't in the notice, that is the right to call in a union member.
PN118
Suffice for these purposes to say that counts 2, 3 and 4 do not refer to any failure to comply with any of the provisions of 170LK and accordingly, once the union is out as an appellant it has no further effect. So with respect, that deals with the preliminary points in terms of whether there is any basis in section 45 for being - to be broad. Your Honours, in my respectful submission, the difficulties in providing service can be attended to or could have been attended to by orders of this Commission had an application been made but with respect in the absence of notice two persons or a group of persons who will of course be critically or could be critically affected by a decision of this Commission, the appeal isn't, in my submission, properly constituted.
PN119
They simply haven't given notice either in the usual way or in some modified way to persons who might be affected. There may well be some identity of interest between the employer and the workers who voted for the agreement that they are not the same party, and they are quite clearly a separate party.
PN120
SENIOR DEPUTY PRESIDENT WATSON: You are relying on the rule in respect to that point to notify parties to the agreement.
PN121
MR KOURAKIS: Yes, rule 11 - - -
PN122
SENIOR DEPUTY PRESIDENT WATSON: 11(5).
PN123
MR KOURAKIS: Yes.
PN124
SENIOR DEPUTY PRESIDENT WATSON: Other parties and interveners in the proceedings. To have parties in the proceedings, are those who turned up at the proceedings or are they the parties to the agreement?
PN125
MR KOURAKIS: Well, in my submission they are the parties to the agreement and in the very least - - -
PN126
SENIOR DEPUTY PRESIDENT WATSON: Not what the rule says.
PN127
MR KOURAKIS: Sorry.
PN128
SENIOR DEPUTY PRESIDENT WATSON: It is not what the rule says.
PN129
MR KOURAKIS: No, no, it is a matter of deciding whether the - what the proceedings are, your Honour and Senior Deputy President, is quite right, it would have been more convenient if in the certification process there were provisions in those sections, provisions dealing with a nominal representative of the employees, but there is not.
PN130
SENIOR DEPUTY PRESIDENT WATSON: As occurred in relation to the certification itself.
PN131
MR KOURAKIS: Yes.
PN132
SENIOR DEPUTY PRESIDENT WATSON: Which presumably involves the - or which does involve a presumption and think that that representative would advise those she is representing.
PN133
MR KOURAKIS: Yes.
PN134
SENIOR DEPUTY PRESIDENT WATSON: Or who he or she is representing of the proceedings.
PN135
MR KOURAKIS: Yes, in a way the application as it is constituted is almost an ex parte application, ..... an application by the employer to certify the agreement with supporting evidence from work or workers about compliance with the process. If one wanted to be very strict one might say that therefore the workers bound were not party to those proceedings, but in the end whatever the form of that rule, with respect this Commission ought to be concerned that those persons, if we new them ..... especially might be affected by it all and have some notice of it.
PN136
SENIOR DEPUTY PRESIDENT WATSON: Should we apply that to the certification itself and notify all employees of a certification.
PN137
MR KOURAKIS: There is the application to certify.
PN138
SENIOR DEPUTY PRESIDENT WATSON: Yes.
PN139
MR KOURAKIS: Well, that is another question, the statutory certainly does not require it but on the grounds of natural justice whether a Commissioner hearing the certification might require something as to that is another question, or might in due course seek that.
PN140
SENIOR DEPUTY PRESIDENT WATSON: It can't apply to the rule 11.5 to the parties to the agreement because you will get an instance in which there is an award variation at which one of many employer parties appeared and then an appeal and it is unnecessary in those circumstances to serve each of the parties the award.
PN141
MR KOURAKIS: Yes, yes ..... there are difficulties with the submission, that is all I have to say and support it.
PN142
SENIOR DEPUTY PRESIDENT WATSON: Yes.
PN143
MR KOURAKIS: If the Commission pleases.
PN144
MR ATS: If your Honours please, I would seek an indulgence in making some brief submissions having heard my friends and the appellant.
PN145
SENIOR DEPUTY PRESIDENT WATSON: Yes, go ahead.
PN146
MR ATS: I think there are two main thrusts and really one main and one subsidiary plus what we would have to say in order to try and assist the Commission in this matter. The Acts does set out a code for what is required for these various agreements. LK(7) in this regard is insignificant as is LT(5). The Act places importance on the employees involved having a genuine understanding of what is proposed and in my respectful submission, that importance is heightened in an LK application for obvious reasons. Now, without referring to the affidavits that have been filed and I must say that those affidavits are not filed by the party that I represent.
PN147
SENIOR DEPUTY PRESIDENT WATSON: Why would there be any difference between LT and LK, surely it is the same?
PN148
MR ATS: Between an LS there would be a difference in an LJ, there would be a slight difference - or the importance may be slightly different because in those circumstances there are representatives, there are other parties on behalf of the employees. It is not a matter of employees dealing strictly directly with the employer and there are other persons who, whilst not mandated by the Act, who as a matter of reality have an obligation to ensure that there is a level of understanding, and all I simply refer to is that the circumstance in LK is not one where there are formalised experienced representatives of the employees who can assist them in coming to terms with that understanding.
PN149
Now, it is not said to derogate for the responsibilities to comply with the Act in LJ or LS, it simply says a matter of practicality that there is some greater significance with a LK application as the employees, I mean there are circumstances where employees - - -
PN150
SENIOR DEPUTY PRESIDENT WATSON: So it is not a significance that is put in the Act.
PN151
MR ATS: No.
PN152
SENIOR DEPUTY PRESIDENT WATSON: You are saying that this is outside of the Act.
PN153
MR ATS: No, this is - that is right, it is a matter of interpretation, it is a matter of the practical operations of these provisions, it is our submission that there is a heightened importance in the LK provisions to make sure that the persons bound understand. Now, if that is your Honours, please on that point. The affidavits to which I was - or the affidavit to which I was to refer goes to the context of this agreement claims to be in.
PN154
There have been as I'm sure, from your reference to Justice Merkel's decision, your Honours are aware, a series of negotiations in relation to Electrolux and its importance. I think it is fair to say and certainly in South Australia, my knowledge to interstate is almost non-existent, that the vast bulk of those negotiations have been in the context of an LJ application being intended to be made, or potentially an LSB, but generally I can say an LJ.
PN155
Point being that in the context of a union party, a union representative. The document which came before the Commissioner in this instance throughout the document refers to the relevant union. It said again and again and again and again and any person without more reading that document in our submission would fairly assume that there was a union as a party to the agreement given the use of the union in consultation procedures, dispute resolution procedures and things of this nature. It is a fair reading.
PN156
SENIOR DEPUTY PRESIDENT WATSON: Well, I think that actually singular and plural is the word - - -
PN157
MR ATS: Yes, look I - - -
PN158
SENIOR DEPUTY PRESIDENT WATSON: - - - is union or unions.
PN159
MR ATS: - - - I'm sorry, I did not mean to draw a distinction between the two.
PN160
SENIOR DEPUTY PRESIDENT WATSON: Yes.
PN161
MR ATS: I certainly concede that as from - as at the time of voting as opposed to following the application made by the Australian Workers' Union to be bound, it could be said to be some small difference in the operation, given that the Australian Workers' Union is now a party, I further concede that. What I would suggest that these provisions are focused towards is the genuine knowledge of the state that these employees are asked to approve this agreement.
PN162
That in my respectful submission is the relevant time and what has occurred here is - and there my be no ill-intent and is likely to be a matter of oversight, I don't suggest any different. What has occurred here is a document which has been prepared initially to be an LJ agreement has been put through an LK process and on my understanding, notwithstanding the references within the document to union or unions, there was no information clearly put to the employees voting on it, that it was a non-union agreement and this is the effect that the affidavits have been filed by the appellant.
PN163
SENIOR DEPUTY PRESIDENT CARTWRIGHT: There is no ambiguity about the parties bound clause though is there?
PN164
MR ATS: Well, I think that our submission on that point would be that an LK agreement absent of an application that the Australian Workers' Union made, had that application not been made or considering the position of the AMWU - - -
PN165
COMMISSIONER WHELAN: Had you not been up earlier than Mr Wilson then?
PN166
MR ATS: Yes, yes, well to be honest I - the internet apparently at the AIRC site is a little bit in front of the papers, but yes, had we not noticed that, it would be a non-union agreement, we would not been parties ..... not withstanding what it said. Now, as is made clear by the appellant's submissions in the affidavit so far, this is a matter of significance. The people who voted on this who ought to have had a genuine understanding of what it was all about, had the clear understanding that was reinforced by the words of the document that their union, be it the AWU or the AMWU, or whoever it might be, was a part of this, could take this up on their behalf, was in on it, had looked at it.
PN167
Now, perhaps they had finally looked at it, that may be taking it too far, I'm not sure, but clearly there is an implication that the relevant union is involved. Now, as at the time of voting that was not true and in fact, I understand and I would have to refer to the transcript of the day to refresh my knowledge and I apologise if my memory is not entirely adequate in this regard, I suspect there was some suggestion that the application which was in fact granted by the Australian Workers' Union, was somehow not proper or not established by evidence.
PN168
Now, I emphasise that if my understanding or recollection of the tenor of what was said overstates how it was said, then I apologise, and clearly the transcript will bear out what was said on the day. The point is that there must be a genuine understanding, the words of the document created a clear impression and I am unaware of any evidence asserted or prove, to suggest that that understanding was made clear. Now, as to the linkage to jurisdiction clear requirements of these agreements are set out.
PN169
It would seem to me anomalous at best to suggest that an agreement which clearly did not comply, or was not proven to comply or perhaps there was not a reasonable satisfaction for the basis of it complying, can be certified without prospect of appeal, that would seem to be very anomalous and that is our substandard complaint. I mean, can it be said that an agreement that is not in accord with the requirements set down by the Act and is yet certified is a proper exercise of jurisdiction and is within jurisdiction.
PN170
In our submission clearly it is not. There are requirements if they are not obeyed it is ultra-bias and that in our respectful submission brings it within the ambit of section 45(1)(g). Now, I will touch briefly on my friend's closing points.
PN171
SENIOR DEPUTY PRESIDENT CARTWRIGHT: If I may, does that mean that your submission is that on the evidence the Commissioner should not have been satisfied that the requirements of section 17LT(6) had been approved - had been satisfied.
PN172
MR ATS: Yes, that is our submission, now I certainly understand that that may need some further explanation and the main thing that I would point to in that regard, because I understand there can be issues about my role on the day and what I was able to competently put. Now, certainly we would suggest that there is an obligation on the Commission to satisfy itself, to not simply rely on what is put by the parties. Now, having read the document - having read the repeated references to union and unions and not having had any explanation and faced with a suggestion that a union wasn't competently there to have its name put on, that required some further inquiry.
PN173
Now, as I say or I accept, that there can be things said about my role on that day, it was put to the Commissioner in whatever capacity it may be seen that the AWU exercised at that time, that the proper course would be to grant a brief adjournment to allow the taking of instructions and the provision of evidence. As it happened that Commission was to reconstitute later that very day, if I recall, on a related matter there would have been a very minor inconvenience.
PN174
Now, certainly there was no evidence I was in a position to put before the Commission at that time and perhaps if that is some fault to be borne, perhaps there is, but we say that it had encumbered upon the Commission to ensure that it is reasonably satisfied. There were grounds having regard to the documents to have concerns and reasonable steps to allay those concerns were not on our submission ..... and that takes me to the point that I was about to lead on to.
PN175
My friend made some submission as to natural justice in talking about the service requirements and if that is perhaps seen as appropriate and in these proceedings and other similar proceedings, it might be the case in the certification proceedings, particularly after an issue has been raised again given the confidence of the appearance may be an issue, but also on fair reading of the documents. In our respectful submission, the Commissioner heard in the exercise of their jurisdiction, in not seeking to satisfy themselves, what was this issue all about.
PN176
Who were these union or unions in the documents and what did the people who voted think about them. As I said at the outset, it is the initial point as to the compliance with the clear requirements of the Act that we rely on and I raise the secondary point, it could be seen that the failure to grant an adjournment or to direct perhaps, ..... of further information to satisfy the Commissioner, was a failure to exercise jurisdiction that the Commissioner has, possibly under section 111S or T possibly to do anything necessary or expedient to perform the relevant duties.
PN177
SENIOR DEPUTY PRESIDENT CARTWRIGHT: Subject to the Act.
PN178
MR ATS: Yes, certainly subject to the Act.
PN179
SENIOR DEPUTY PRESIDENT CARTWRIGHT: Yes.
PN180
MR ATS: In my respectful submission it was open to Commissioner to say to the parties, well, I would like to hear more on this or I would like to hear something about this. We would say that these LK agreements for the reasons averted to earlier, do require very careful scrutiny. Now, certainly I concede that I was here and perhaps with more preparation or time or however it may be put, I ought to have been in a position to make the Commission fully aware.
PN181
That does not discharge the Commissioner's responsibility to ensure that what is certified is in compliance with the Act, that is the fundamental point here in our submission. It has not been demonstrated, in our submission there is a reasonable argument on the materials that I understand are presently before the Commission that that is the case and it may require witness evidence. If it is the submission of the respondent that that fact that a union despite the recurrent references was not a part of the agreement then perhaps it can lead some evidence or tell us what that evidence may be, I'm not aware of it, it may be simply answered.
PN182
It is a live issue in our submission, it goes to jurisdiction and in our respectful submission, leave to appeal ought to be granted, the Commissioner was put on notice at the time that there were issues, unless the Commission wish - I do point out that as I said initially, it is not only LK(7) that is relied upon but LT - - -
PN183
COMMISSIONER WHELAN: 6.
PN184
MR ATS: - - - 6, thank you, Commissioner.
PN185
COMMISSIONER WHELAN: Are you saying that if LK(7) is not complied with then 170LI(2) is not complied with because the agreement has not been in accordance with section 107LK?
PN186
MR ATS: Yes, and clearly I thank the Commissioner for that and that reinforces my point as to jurisdiction and if I recall my friend's submission, I think there was some reference to LI being something in the nature of setting out jurisdictional issues and I understand that, I suppose to be quite similar to the case run by friend's client before Justice Merkel and now an appeal. I think on this the Commission wishes anything further, subject to my friend's response to these matters, those are our submissions in this matter, thank you.
PN187
SENIOR DEPUTY PRESIDENT CARTWRIGHT: Well, I think we did get a bit out of order, so you are entitled to responses Mr Ats. Could I just ask you before we go to what Mr Ats - - -
PN188
SENIOR DEPUTY PRESIDENT WATSON: Well, you did get a bit out of the orders so you are entitled to a response, Mr Kourakis.
PN189
MR ATS: Thank you.
PN190
SENIOR DEPUTY PRESIDENT WATSON: Could I just ask you before we go to what Mr Ats just said - no, sorry, if I can ask Mr Kourakis before we go to Mr - before he responds to Mr Ats. Do you have the statutory declaration in front of you - either of them in the proceedings, at 5.1.
PN191
MR KOURAKIS: Yes, both of the employers - - -
PN192
COMMISSIONER WHELAN: They are in the appeal book.
PN193
SENIOR DEPUTY PRESIDENT WATSON: Yes, I wonder if you could clarify - - -
PN194
MR KOURAKIS: Yes, under tabs 13 and 14.
PN195
SENIOR DEPUTY PRESIDENT WATSON: I wonder if you could clarify matters arising out of 5.1, the factual background.
PN196
MR KOURAKIS: Yes.
PN197
SENIOR DEPUTY PRESIDENT WATSON: As I understand it, on September 14 employees nominated representatives who negotiated with the company. They went with the company representatives to examine a proposed enterprise agreement document which had been previously distributed. Are you able to enlighten me as to when and in what form it was previously distributed?
PN198
MR KOURAKIS: The agreement?
PN199
SENIOR DEPUTY PRESIDENT WATSON: Yes, the proposed agreement.
PN200
MR KOURAKIS: I can if I just ask. As I understand it, what you request is how the agreement was distributed, in what form it appeared?
PN201
SENIOR DEPUTY PRESIDENT WATSON: Yes, there is a reference there as to having been previously distributed.
PN202
COMMISSIONER WHELAN: Prior to 14 September.
PN203
MR KOURAKIS: Yes, that was a result of negotiations with the unions as I understand it.
PN204
SENIOR DEPUTY PRESIDENT WATSON: In what form was it distributed?
PN205
MR KOURAKIS: Hard copy to each employee. Those negotiations with the unions stalled, there was an approach to resume negotiations with the employees in the process described there commenced.
PN206
SENIOR DEPUTY PRESIDENT WATSON: The form of the document was an LK agreement or an LJ agreement or - when it was distributed to employees prior to 14 September.
PN207
MR KOURAKIS: LK subject to the references to the union, I suppose, but LK when negotiations started with the employees.
PN208
COMMISSIONER WHELAN: The document that is distributed prior to 14 September - - -
PN209
MR KOURAKIS: Yes.
PN210
COMMISSIONER WHELAN: - - - is that the same document that was finally certified? Exactly the same.
PN211
MR KOURAKIS: Yes.
PN212
SENIOR DEPUTY PRESIDENT WATSON: Yes.
PN213
MR KOURAKIS: Can I just ask the Commission to have regard to and consider the second to last paragraph really under 5.1 on the question that seems to be most - - -
PN214
SENIOR DEPUTY PRESIDENT WATSON: I was working my way down, Mr Kourakis. We will get there. Okay, so - and when did you - do you recall or do you - are you able to ascertain when that was distributed?
PN215
MR KOURAKIS: That is before the 14th?
PN216
SENIOR DEPUTY PRESIDENT WATSON: Yes.
PN217
MR KOURAKIS: Commissioner, I am not sure. I may be able to. I have taken some very brief instructions. On my understanding on a number of occasions prior documents were distributed. They would have been very similar but our point being that they were the LJ agreements.
PN218
SENIOR DEPUTY PRESIDENT WATSON: Yes.
PN219
MR KOURAKIS: Your Honours, if it comes to this it would be clearly a matter of evidence, my instructions are that with respect to plastics it was not an LJ it was always an LK but just what that means in terms of the - that is the section under that appeared somewhere or whether it talks - whether that is a reference to - - -
PN220
SENIOR DEPUTY PRESIDENT WATSON: Well, it may be a matter of production of that document if it becomes necessary. You see, after that point of time, as I understand it, all that was distributed to the employees was a one page summary sheet, not a copy of the agreement. So there is really reliance on the previously distributed document whatever it was. Am I right in thinking there was no subsequent - - -
PN221
MR KOURAKIS: Yes, there was no change.
PN222
COMMISSIONER WHELAN: There was no subsequent distribution of the entire agreement, that's what is not clear.
PN223
MR KOURAKIS: No, I don't think - yes, I think that is right.
PN224
COMMISSIONER WHELAN: So sometime prior to 14 September a document was distributed and that was - that document was finally voted on on 12 November.
PN225
MR KOURAKIS: Yes.
PN226
SENIOR DEPUTY PRESIDENT WATSON: Yes. There were two votes, there was a vote and then it was realised that there hadn't been a written notice of the company's intention to enter into the agreement with the employees.
PN227
MR KOURAKIS: That is right. In fact, that happened twice. They have got the timing wrong and so they had to give out two notices. But, as I understand it, and what I have just been instructed, only one hard copy of the agreement was ever distributed.
PN228
COMMISSIONER WHELAN: So there were three votes taken were there?
PN229
MR KOURAKIS: No, there were two.
PN230
COMMISSIONER WHELAN: Two votes taken.
PN231
MR KOURAKIS: Yes, there were negotiations that didn't come to a vote, as I understand it.
PN232
COMMISSIONER WHELAN: Yes, but there - - -
PN233
MR KOURAKIS: No, I am wrong about that.
PN234
COMMISSIONER WHELAN: - - - has only ever been one - there was a document distributed before 14 September.
PN235
MR KOURAKIS: Yes.
PN236
COMMISSIONER WHELAN: That was voted upon sometime later in September or October and it was then voted on again on 12 November.
PN237
MR KOURAKIS: That is right, and before that last vote a notice went out giving notice of the proposal for entering into the agreement.
PN238
COMMISSIONER WHELAN: Yes.
PN239
MR KOURAKIS: But importantly, as - that is one thing I can hand up - but importantly as it appears in that penultimate paragraph on the page, that notice referred to the right of union members to have the union involved if they wished and it was the provision of that notice which has never been denied in any of the material and - - -
PN240
COMMISSIONER WHELAN: That was the notice on 26 October.
PN241
SENIOR DEPUTY PRESIDENT WATSON: Yes.
PN242
MR KOURAKIS: Well, it is dated 25th. It may have been given out on the 26th, yes, yes, it was.
PN243
COMMISSIONER WHELAN: Well, it is just the stat dec says that it was given out on the 26th.
PN244
MR KOURAKIS: Yes.
PN245
COMMISSIONER WHELAN: But that was given out some five or six weeks after the proposed agreement was circulated.
PN246
MR KOURAKIS: From October it would appear to be so, that is so, yes. I mean there is lots of evidence, if we could get to that, that there are actually leaflets distributed by the AMWU suggesting how its members might vote on that agreement. As I say, that is all a matter of evidence if we get to that. Really, I go to this because the complaint that appears to be pursued in the affidavits is that the employees who were members of unions assumed that the union was involved, therefore didn't request their union to be involved presumably. The point I want to make, is that that paragraph there has never been denied and that is that they were given a notice which advised them that they could ask the union to be involved if they wished and that has just never been denied.
PN247
If the Commission pleases, on a much more fundamental level, there is no complaint - there is no complaint in any ground of appeal about the failure to advise the appellant Mews or any other worker member of the union of the right to involve the union. There is no failure in that - failure of meeting that provision. There is no allegation that any part of the agreement was not explained. There is no ground of appeal that says that there wasn't a valid agreement in that full sense at all. That is in Ms Mews's grounds of appeal and as I have said now, on several occasions, the affidavits don't go that far either.
PN248
The submissions made by Mr Ats in intervening were then on grounds of appeal which are not actually before the Commission although, of course, the union he represents as a party bound could have instituted an appeal and if it wanted to contend that there was an absence of jurisdiction could easily have done so on any of the grounds that he spoke about. If they could be supported in the end result but, of course, that has not happened here at all. Moreover, before the Commission, although there is some complaint about the Commission's decision as to what the union could do in intervening, in my submission, all the Commission did was follow the dictates of the Act as to the limited function of the scope of the union intervention being to be bound.
PN249
But of course, there was no reason why the union could not - either of the unions could have represented any number of employees to make any who are also members to make any complaint it saw fit on behalf of those employees about the process or anything else for that matter. The fact is that no party, in terms of employees bound by this award, appeared, represented or otherwise, to make any complaint about jurisdiction or the requirements of LK, or LT or LU(8). So, your Honours, you have been urged to give leave to appeal there is just no judicial ground of appeal that is open now and in the absence of the formulation of any amendment, and for all the submissions no-one has done that yet, there is just nothing to give leave on that falls within section 45.
PN250
Your Honours, I am advised just as a matter of history that the only complaint, and it obviously wasn't through the Commission's certification or the formal part of that process made by the AWU as to the LU(8) position as to whether there could be - whether there should be a separate agreement for part of the business. Not matters of jurisdiction such as those which the AWU seeks to agitate now as an intervening. I suppose that general configuration goes to leave if, contrary to my submission, your Honours, thought there was something within the scope of 45 still probably before you.
PN251
SENIOR DEPUTY PRESIDENT WATSON: Mr Kourakis, the 25 October letter was the only written notice of intention to enter into an LK?
PN252
MR KOURAKIS: No, I think there was also an earlier one but it might have omitted to explain the right to - it was either a timing problem or admitted to advise of one of the rights. Yes, the first notice, that is a notice to enter into an agreement did not refer to union members rights to have some representation. So the next notice, which was the one dated 25 but delivered on 26 - well, 25 and 26 October, referred both to the - gave notice both to the intention to enter into an agreement and of the right of union members - - -
PN253
SENIOR DEPUTY PRESIDENT WATSON: But this statutory declaration says that Mr Quirk - - -
PN254
MR KOURAKIS: Yes.
PN255
SENIOR DEPUTY PRESIDENT WATSON: - - - on 25 October spoke to the employer representative and explained the requirement to give union members written notice of the company's intention to enter into an agreement with employees and for them to have the union involved if they wished was not complied with.
PN256
MR KOURAKIS: Yes.
PN257
SENIOR DEPUTY PRESIDENT WATSON: But a requirement to give notice and for them to have the union involved were not complied with.
PN258
MR KOURAKIS: Yes.
PN259
SENIOR DEPUTY PRESIDENT WATSON: I take it that is referring to the previous notice.
PN260
MR KOURAKIS: Is your Honour looking at the second to last paragraph that commences "Gerry Quirk spoke".
PN261
SENIOR DEPUTY PRESIDENT WATSON: Yes.
PN262
MR KOURAKIS: Now, if you can just go to the second paragraph he handed letters to all employees inviting them to have the union represent them in discussions with the company over the proposed agreement.
PN263
SENIOR DEPUTY PRESIDENT WATSON: Yes.
PN264
MR KOURAKIS: So it wasn't, in fact, written notice.
PN265
SENIOR DEPUTY PRESIDENT WATSON: Well, that is the only reference I can see to any notice having been given in the material before Commission Redmond.
PN266
MR KOURAKIS: Yes, but it is a notice in terms which appears to fall within LK(4) and the provision of that notice is not challenged. No-one says they weren't given that notice. They say because of the references - - -
PN267
SENIOR DEPUTY PRESIDENT WATSON: Yes - no, no. My question was directed ..... and was that the only notice give. You seem to suggest that there is an earlier one but there is no reference to it in the material before Mr Commissioner Redmond.
PN268
MR KOURAKIS: Yes, well, your Honour is right and it was not referred to because it was of no effect, it was deficient.
PN269
SENIOR DEPUTY PRESIDENT WATSON: Yes, I see. So, the only notice is - - -
PN270
COMMISSIONER WHELAN: The only notice it actually complied with the terms of the Act - - -
PN271
MR KOURAKIS: Is that one.
PN272
COMMISSIONER WHELAN: - - - is the one on the 26th October, that is what he's saying. There was a previous notice but because that didn't comply he issued another one.
PN273
MR KOURAKIS: Exactly. There were votes on both occasions.
PN274
COMMISSIONER WHELAN: Yes.
PN275
MR KOURAKIS: It was approved on both occasions but the approval that mattered was the one after a notice complying with the Act and paragraph 5.1 although perhaps not as clear as it could have says that that notice was given, if the Tribunal pleases.
PN276
SENIOR DEPUTY PRESIDENT WATSON: Yes, thank you. Ms Smith, I am not sure you get another reply at this stage.
PN277
COMMISSIONER WHELAN: I don't know you get another go Mr Ats.
PN278
SENIOR DEPUTY PRESIDENT WATSON: Ms Smith, is there anything on the issue results standing and competence in reply to what has been put?
PN279
MS SMITH: Nothing further that I wish to add. My friend, Mr Ats has outlined how this can brought pursuant to section 45(1)(g) as the Act was not followed that would be ultra varus therefore outside the jurisdiction. Your Honour, I seek leave to amend the grounds to include the failure in the appeal notice to elucidate this reason.
PN280
SENIOR DEPUTY PRESIDENT WATSON: I am sorry? Failure to what?
PN281
MS SMITH: Excuse me. If I could just have one moment. Your Honour, in accordance with section 110 of the Act subsection (c) it says:
PN282
The Commission shall act according to equity, good conscience and substantial merits of the case without regards to technicalities and legal forms.
PN283
PN284
In accordance with that section, your Honours, I seek leave to amend our appeal application to include the non-compliance with sections 170LK(4) and section 170LK(5) which was remiss in the original application, your Honours. Sorry, LT(5).
PN285
SENIOR DEPUTY PRESIDENT WATSON: LT(5)? That's an LJ agreement.
PN286
COMMISSIONER WHELAN: Which ones are you talking - - -
PN287
MS SMITH: Six. Excuse me a minute.
PN288
COMMISSIONER WHELAN: Section 170. Which subsection of 170LK, can we just get that clear? Is it 4 or 7 you are talking about?
PN289
MS SMITH: 170LK(7) and section 170LT(6), your Honours.
PN290
SENIOR DEPUTY PRESIDENT WATSON: Is there any objection to the amendment?
PN291
MR KOURAKIS: Yes, if the Commission pleases. Your Honours, there has to be an end to these processes to do justice to both parties. In the end, this is an agreement that was voted on twice. Your Honours, the appellant union - sorry, the AMWU, being conceded that it is not really a proper party, the AMWU knew on the day of the vote that it was going to take place. Indeed, Mr Watson authorised it, distributed the leaflet to all of the workers who voted urging them to vote no. A majority of workers voted yes. This process has no merit. Grounds of appeal being added to as they go along. The fact that it knew about the vote on the day and urged its workers to vote on it. It is not disclosed in the affidavits which suggested that they always thought that it was an LG that is to be negotiated with the unions.
PN292
I have provided copies for my friends and I am told to keep one - if I can hand up to for your Honours. Really, this goes to whether there is an underlying merit whether legal - given in our submission enough is enough. The union which was not properly a party relied on grounds which must now fall by the wayside. Submissions were made on grounds which didn't appear and it is pointed out that they don't there is a formulation at the last moment. The public interest is in fact against allowing this to continue any further and no further leave to amend ought to be given.
PN293
SENIOR DEPUTY PRESIDENT WATSON: Yes.
PN294
MR WATSON: Your Honours, if I may.
PN295
PN296
SENIOR DEPUTY PRESIDENT WATSON: Can I ask you, Mr Kourakis, is it possible to provide a copy of the 20 October notice?
PN297
COMMISSIONER WHELAN: Notice.
PN298
PN299
SENIOR DEPUTY PRESIDENT WATSON: Mr Watson, you were wanting to say something.
PN300
MR WATSON: Yes, Deputy President, just to advise the Commission in relation to the document just distributed by Mr Kourakis is that the document certainly was distributed but it was distributed on the basis of a requirement to take a position in the ballot. The understanding at the time was due to previous advise from the company's representative that the ballot was in relation to a 170LJ agreement. It does not go to the heart of whether or not the union was invited to participate. It doesn't go to the heart as to whether or not the union was aware of an LK, in fact, quite the contrary. It can assure this Commission that the documents certainly would have had something to say about the union not being - I shall correct that, the unions not being a party to the agreement had the union been aware of the matter being dealt with as an LK.
PN301
SENIOR DEPUTY PRESIDENT WATSON: Yes, we will adjourn briefly to consider the issues of standing competence and the application to amend.
SHORT ADJOURNMENT [3.50 pm]
RESUMED [4.10pm]
PN302
SENIOR DEPUTY PRESIDENT WATSON: Yes, we have decided that the AMWU does not have standing to bring an appeal. We decided equally that Ms Mews does have standing to bring an appeal, Ms Therese Mews. In respect to the application on behalf of Ms Mews to amend grounds for appeal to include sections 170LK(7) and LP(6). We will review that these are matters raised in the written submissions of the appellant, Ms Mews and we do grant leave to amend the grounds and they shall be amended accordingly.
PN303
In respect to the issue of confidence of the appeal, we reserve our position as to whether there is a jurisdictional argument which brings the matters agitated on appeal within section 45(1)(g). We will announce our decisions back to that matter in due course and depending on that decision we will either dispose of the matter or alternately set down a programme for further hearing. We will adjourn the matter appropriately.
ADJOURNED INDEFINITELY [4.43pm]
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