AG2003/2320, Transcript of Proceedings [2003] AIRCTrans 1381 (15 April 2003)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER BACON

AG2003/2320

APPLICATION TO TERMINATE AGREEMENT

Application under section 170MH of the Act
by Henry Walker Eltin Contracting Pty Ltd
to terminate the Ebenezer Mining Company
Pty Ltd Certified Agreement 1997

BRISBANE

9.35 AM, MONDAY, 31 MARCH 2003

PN1

THE COMMISSIONER: Can I take the appearances, please?

PN2

MR M. CUTHBERTSON: I appear for and on behalf of Henry Walker Eltin. Commissioner, this morning also appearing with me is MS SHIRLEY BENNETT, who is the HR superintendent with HWE.

PN3

THE COMMISSIONER: Very well. Thank you, Mr Cuthbertson.

PN4

MR A. VICKERS: I appear for the CFMEU.

PN5

THE COMMISSIONER: Thank you, Mr Vickers. Mr Cuthbertson.

PN6

MR CUTHBERTSON: Thank you, Commissioner.

PN7

THE COMMISSIONER: Before you go, Mr Cuthbertson, I note that the CEPU is also a party and is bound by this agreement. That organisation was advised of this morning's proceedings. I have not heard anything from Mr Williams. I know he's busy just at the moment, but nevertheless given that there was advice to the CEPU I intend to proceed in their absence. Mr Cuthbertson.

PN8

MR CUTHBERTSON: Commissioner, likewise, if I could just add that there was an application served on the CEPU under correspondence dated 18 March 2003, so certainly there's a scenario that the application has been served and no doubt the directions also served on that organisation. Commissioner, as you'd be aware, Henry Walker Eltin has made application under Section 170MH of the Federal Workplace Relations Act 1996.

PN9

I guess, for want of words, this is probably a follow-on from a matter that was previously before you in which case Ebenezer Mining Company sought to have the agreement which covers the wash plant at that organisation terminated, and I guess there was a written decision which you'd be familiar with and I won't seek to tender that, but in a nutshell that decision, I guess, is also a follow-on from a determination of the Federal Court in which case it was deemed that Henry Walker Eltin were the employer for the purposes of I guess being bound to that particular agreement.

PN10

In fact, the decision that you handed down in actual fact did determine that, for the purposes of Part 6B of the Act, Henry Walker Eltin should be deemed to be the employer or defined as the employer insofar as the application of that particular agreement is concerned. So this application itself seeks to terminate that particular agreement. I understand there may have been some - in the earlier matter before you, some issue warranting clarification insofar as the actual nominal expiry date was concerned. In fact, I think you will find that the transcript reads something slightly different to that which is contained in the agreement proper.

PN11

What I guess is common ground and the Commission did determine also on the previous matter was that nominal expiry date has passed for the purposes of, I guess, examining a criteria which has been set out and accepted by the parties in Joy Manufacturing. Once again, I probably - unless the Commission or my colleague necessarily wants or deems it appropriate, I won't tender the Joy Manufacturing case. I think it has been accepted by the parties and I note that in the transcript by colleague has also indicated that it's probably appropriate to refer to that as, I guess, the guiding precedent insofar as these sorts of matters are concerned.

PN12

I guess just as once again a bit of background to the application itself is that Henry Walker Eltin no longer employ people at that particular site. There is, as I understand it, no activity of a mining nature actually being undertaken at the particular site. Certainly I can confirm to the Commission that there is no I guess handling of coal that is being undertaken in the wash plant to which this agreement has application. I've already referred to the order or decision of Branson J of the Federal Court in which case he does deem that due to the transmission of business provisions under the Act, Henry Walker Eltin are deemed to be bound and therefore the employer as it's known in terms of that particular agreement. And I've also referred to the decision that you subsequently handed down earlier this year.

PN13

Not wanting to go over each point of the application, but as indicated we seek to have the agreement terminated. The reasons being is that - and it's not uncommon for contractors or employers to, as a matter of housekeeping, I guess, cover their tracks and to ensure that there was no application of the agreement which has expired. Certainly as I indicated there are no employees and in a nutshell once again the impact of having the Commission terminate such agreement is essentially nil.

PN14

Likewise, if we follow the principles and the criteria set down under the Joy Manufacturing, and in particular look at Section 90 of the Act, there is no impact on the community or the, I guess, economy at large as well. So just clarifying, certainly in terms of public interest argument we say very clearly and are of the view that there is no impact and therefore it is not contrary to the public interest should the Commission deem it appropriate to terminate this particular agreement.

PN15

Certainly as I indicated we believe that - and obviously following on from your decision in the Ebenezer matter, that Henry Walker Eltin is the employer. The application does relate to an existing certified agreement which has passed its nominal term, and the Commission are obliged in line with the Joy case to examine I guess any feedback or comments that various parties to such an agreement have, and likewise we understand that the Commission are bound and are obliged to take on board the views of the CFMEU and obviously the CEPU, should they have turned up this morning.

PN16

That being the case, we obviously understand that the Commission are also obliged in the event that any party seek to run an argument that terminating an agreement is contrary to the public interest to in fact terminate that agreement. I understand from - if I can be so bold, to, I guess, infer that there may in fact be some form of argument by my colleague to such a degree that, well, that's all well and good, but Henry Walker Eltin aren't indeed an employer because they no longer employ people at that particular site. Clearly, we say that that's not the case and the act insofar as the provisions of Section 170MH should not be read down to that effect.

PN17

The reference to employer should, as it's found within the - I guess the vast provisions of the Workplace Relations Act, be looked at in line with any other references, and that being there is, I guess, a clear definition found within the Workplace Relations Act in Section 4. And I will see to, I guess, refer to that definition. In Section 4 the definition of employer includes (a) a person who is usually an employer and (b) an unincorporated club. Insofar as that definition is concerned, we say that Henry Walker Eltin does fit within the bounds of that definition and therefore should be determined to be the employer insofar as the references are contained within the terminating provisions of the Act.

PN18

There's probably no other points that I wish to make at this particular point in time other than to reaffirm the points that are contained within the application proper itself. Again, the agreement has passed it's nominal expiry date. Again, the agreement does bind, and for the purposes of the references to persons bound, Henry Walker Eltin is a person bound. The only other reference that in hindsight now that I would like to make is that there was some indication in the matter prior that this is, I guess, unfamiliar territory to the Commission, or certainly unfamiliar territory to the parties insofar as having an agreement sought to be terminated where there are no employees in place, that I can confirm is certainly not unfamiliar territory to the Australian Mines and Metals Association.

PN19

In fact, there were three separate matters relating to Roach Mining back in 2002 where, I guess, the similarities were that there were also no employees employed by Roach at that particular point in time to which the agreement had application. I understand that there was no written decision in that particular matter, but there certainly was a matter before yourself, Commissioner, and it was a matter where there was a verbal decision handed down. And I would like to, just for clarification, seek to tender the transcript of that particular matter. And likewise, it was a matter that my colleague, Mr Vickers, also appeared in.

PN20

That matter related to three separate agreements, which bound Roach Mining, and I guess I won't seek to go through in detail the entirety of that particular transcript other than to refer you to essentially the last two paragraphs of the transcript, in which, respectfully, Commissioner, you point out that in fact - and conclude that there are no employees to which the agreement has application. You took on board the views of the CFMEU in that particular matter and subsequently found that it wasn't contrary to the public interest in similar circumstances to terminate the three agreements that were before you on that particular occasion.

PN21

So I just seek to point out, finally, that this is not unfamiliar territory and certainly it has happened previously insofar as the Commission respectfully terminating an agreement to which has no application to employees at the time of the application. If the Commission pleases.

PN22

THE COMMISSIONER: Thank you, Mr Cuthbertson. Mr Vickers?

PN23

MR VICKERS: Thank you, Commissioner. Commissioner, the CFMEU opposes the application and questions whether or not - in a submission which Mr Cuthbertson, in fact, foreshadowed - questions whether or not the Commission, in fact, has jurisdiction to deal with the application. And it's a matter which was flagged by the CFMEU when the earlier matter, that was the application by the Ebenezer Mining Company to terminate this self-same agreement, was dealt with by the Commission and that issue is undetermined in the decision in the matter at point 6. I'll just read that out quickly:

PN24

There is one further point advanced -

PN25

and I should say, Commissioner, that's contained in print PR927599, and at 6 you said:

PN26

There is one further point advanced by the CFMEU which is that Ebenezer can no longer be the employer because there are no employees at the CHPP. Given my earlier conclusion, it is not necessary to determine this point.

PN27

Unfortunately, Commissioner, it will be necessary for you to determine that point on this occasion for at least in respect of Henry Walker Eltin because they make the application. It is conceded in the application, and conceded by Mr Cuthbertson in his submission, that Henry Walker Eltin no longer employ anybody at the CHPP at the Ebenezer Mine, and that's correct, to the very best of my knowledge. As a consequence, Commissioner, pursuant to section 170MH, the CFMEU submits that Henry Walker Eltin, or Australian Mines and Metals Association on its behalf, are not a party, or not a person, or not a group which can make an application under section 170MH(I). 170MH(I), in my submission, Commissioner, is quite clear and it says:

PN28

After the nominal expiry date of a certified agreement, (a) the employer or (b) a majority of employees -

PN29

and it goes on:

PN30

or (c) an organisation of employees that is bound by the agreement and that has at least one member whose employment is subject to the agreement may apply to the Commission.

PN31

In my respectful submission, Commissioner, going backwards through paragraphs (c), (b) and (a) is that even the CFMEU can no longer make an application to terminate this agreement because it no longer has a member whose employment is bound by the agreement. Similarly, as there are no employees, then clearly a majority of employees couldn't make an application, because there are no employees subject to the agreement. And in respect of (a), Henry Walker Eltin, whilst it is "an employer" as defined by the Act through section 4, it is not "the employer" which is required under 170MH(1) paragraph (a).

PN32

It is my submission, Commissioner, that the whole of 170MH and, indeed, the whole of division 7 of part 6B is premised on the basis that there has to be a live employment relationship at the time that any one of the actions contemplated - provided, not contemplated - provided for in division 7 from section 170MC through to 170MH(A) respectfully are all predicated on the basis that they are done, that the application is made at the time when there is an employment relationship, when there is "an employer", being "the employer" who is actually employing somebody whose terms and conditions of employment are subject to the certified agreement which is being dealt with under one of the sections in division 7.

PN33

Because if you look at, and logically apply, the terms of 170MH and, for that matter, the other sections, then the clear instructions provided to the Commission include, in 170MH(2), for the Commission to take such steps as it considers appropriate to attain the views of persons bound by the agreement about whether it should be terminated. The Commission can't do that because there are no employees bound by the agreement.

PN34

THE COMMISSIONER: But they're not the only persons bound.

PN35

MR VICKERS: No, they're not the only persons bound, but the intent, it seems to me, and it's my submission, the intent of the legislators was to provide a mechanism whereby, after the nominal expiry date of the certified agreement, and because of other provisions of the Act, when a person's conditions of employment continue to be determined by that certified agreement, then the parties to be certified agreement and/or the employees covered by the certified agreement can take certain steps such as are provided in 170MH to seek to terminate the agreement. But there is no active employees. There is no active organisation who has members employed under the agreement, and there is no employer employing people under the terms of the certified agreement.

PN36

There is no work for 170MH to do. The time for 170MH to do anything has passed with the fluxion of time and the termination of employment of people covered by the certified agreement. That's the extent of my submission, although there is potentially a public interest argument, but I actually don't intend to go there, my understanding of the joint manufacturing case. So that's the full extent of my submission, Commissioner, one of jurisdiction, and that there is simply nobody now who is entitled to seek to terminate this agreement. There may well be at some time in the future, if work was recommenced, but at this point in time there is nobody. There is neither an employer. There is an employer bound, but it is not "the employer" because there is no employment relationship. There are no employees and there is no organisation, so none of the prerequisites, in my submission under paragraph (a), (b) and (c) of 170MH(1) are met.

PN37

THE COMMISSIONER: Mr Cuthbertson.

PN38

MR CUTHBERTSON: Thanks, Commissioner. I won't, I guess, make too many more comments, other than to say that we certainly don't believe that a distinction should be drawn between a reference to "an employer" as opposed to a reference to "the employer". We believe that they have the same meaning within the terms of the Federal legislation. We don't agree with the CFMEUs proposition that, because there is no eligible member of theirs employed at that particular organisation, or employed by Henry Walker Eltin insofar as this application is concerned, that they, I guess, seem to be of the view that the Commission don't have jurisdiction.

PN39

Certainly, Commissioner, as pointed out fairly clearly under, I guess, the legislation and if I just refer you to, I guess, division 6 which talks about persons bound by certified agreements, in particular section 170M, which indicates that persons bound obviously include the employer, any employees, in this case obviously there's none employed, also the relevant unions that are parties. So subject to the Commission taking on board any of those particular organisations, or the views of those organisations at the time of the application, we believe, subject to any public interest arguments that are run and, obviously, my colleague has indicated that he doesn't have any public interest arguments to run this morning, that the Commission are, in fact, obliged to terminate the agreement. If the Commission pleases.

PN40

THE COMMISSIONER: Thank you. Mr Vickers, can I ask you to just address this point for me. The Act as division 3 of part 6B, that is, section 170LL, provides that:

PN41

A single business, which is a new business, that the employer proposes to establish -

PN42

and it goes on and then prescribes the manner in which the employer, and I use that term deliberately, is able to reach an agreement with a union - sorry, yes, with one or more unions determining - such an agreement to be certified pursuant to section 170LT. But in that case, there are no employees but, nevertheless, the statute describes the business as "the employer" and I'd be interested to hear what you had to say about the use of the term in that division versus the use of it in section 170MH. Perhaps to put it a little bit more simply, it seems that the Parliament section 170LL does provide for an employer, despite the fact that there are no employees, to be party to a certified agreement.

PN43

MR VICKERS: Commissioner, I would not disagree that the words in 170LL would give that impression. I make only two points about it; firstly, is that it is in division 2 as opposed to division 7, and I would really need more time to develop that argument more fully and correctly. But I do think that that is a point, at least, necessary to be made. There is no separate definition of employer or the employer it seems to me in the Act other than the definition that is contained at section 4. There is certainly none for Part VIB separately, it seems to me.

PN44

Secondly, Commissioner, I perhaps make this slightly facetious comment, that I don't know that anybody is quite certain what the Parliament was up to with a lot of the alterations made to the workplace, or a lot of the legislation of the Workplace Relations Act. I haven't looked at 170 - - -

PN45

THE COMMISSIONER: Perhaps in a more subtle way, Mr Vickers, I always blame it on the Parliamentary draftspeople.

PN46

MR VICKERS: I am allowed to blame it on the politicians, Commissioner; they are not paying my salary. And the only other points, perhaps just in passing - and again I probably need more time to develop an argument more correctly, or more fully, under 170LL - at least there is a prospective employment relationship contemplated by 170LL because it is the intention of the employer to in fact employ people; that is why the employer is able to pursue or seek a Greenfields site agreement with an organisation of employees. There is at least the intention of creating an employment relationship, but I take your point, and I can't take it any further without giving it a lot more thought than what I have.

PN47

THE COMMISSIONER: Are you proposing some time to do that? It is a matter for yourself; I am not going to - - -

PN48

MR VICKERS: Well, I think it is an important point, Commissioner, about what was intended by the Parliament, and what is the capability of terminating an agreement under 170MH, and if, as it would - I am assuming - exercise in your mind that there is perhaps a parallel between 170LL and 170MH, and I would like some time to develop - research and develop a proper argument about 170LL, if one exists.

PN49

I can do two things; one is in a relatively short space of time - and I am thinking before close of business Wednesday - I don't know what my timetable is - at least advise the Commission and Mr Cuthbertson as to whether or not I would like more time to develop an argument more fully, and then I would know what that timeframe would be, which wouldn't be more than about two weeks. I am afraid I am must extraordinarily busy over the next couple of weeks; unusual for me, I know. But I would certainly know by Wednesday as to whether or not there is anything else that I would want to say, and develop, and how long that would take, Commissioner.

PN50

THE COMMISSIONER: Very well, thank you. Are you opposed to that, Mr Cuthbertson?

PN51

MR CUTHBERTSON: Commissioner, no, we are not opposed. Certainly, we believe that the timeframe should be a rather short timeframe given the circumstances, and given that Mr Vickers is very familiar with these sorts of matters. We understand that, and appreciate that he has a, I guess, a different outlook in terms of the parallel that you have pointed out, or perhaps is seeking to find a different similar parallel that you have pointed out, but simply seek from the Commission, I guess, that they exercise their discretion, so far as this matter is concerned, as soon as possible. If the Commission pleases.

PN52

THE COMMISSIONER: Mr Vickers, can we leave it on the basis that you will advise the Commission in writing no later than 5 o'clock on Wednesday whether you have any further submissions you want to make on this point. If the answer to that question is that you do wish to make further submissions, can that be done in writing within seven days from - - -

PN53

MR VICKERS: Yes, it can, Commissioner.

PN54

THE COMMISSIONER: - - - 5 o'clock on Wednesday.

PN55

MR VICKERS: Yes.

PN56

THE COMMISSIONER: And Mr Cuthbertson, if give you until 5 o'clock the Friday after that, is that sufficient?

PN57

MR CUTHBERTSON: Yes, that will be fine.

PN58

THE COMMISSIONER: That will be only two days, Thursday, Friday.

PN59

MR CUTHBERTSON: That will be fine, Commissioner.

PN60

THE COMMISSIONER: Very well. All right. Well, I will adjourn this matter on that basis. In the event that - I don't think there is any need for formal directions, is there? Very well, thank you. Well, I will simply adjourn on the basis I have described.

ADJOURNED INDEFINITELY [10.03am]