AG2003/2198, Transcript of Proceedings [2003] AIRCTrans 1600 (30 April 2003)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 4, 179 Queen St MELBOURNE Vic 3000
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TRANSCRIPT OF PROCEEDINGS

O/N VT2329
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER GRAINGER

AG2003/2198

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LK of the
Act by L & S Sinclair Pty Ltd for
certification of the M A Ball Plumbing
Industry Agreement 2003-2005

MELBOURNE

12.10 PM, MONDAY, 14 APRIL 2003

PN1

MR B. SHAW: Commissioner, I seek leave to appear for the applicant.

PN2

THE COMMISSIONER: Yes, it is Mr Spark. You are appearing on behalf of the employees, is that right?

PN3

MR C.SPARK: Correct.

PN4

THE COMMISSIONER: Yes. All right. Mr McClusky, you are seeking leave to intervene, is that right?

PN5

MR D. McCLUSKY: Yes.

PN6

THE COMMISSIONER: Well why don't you come and sit, sit at the end of the table.

PN7

MR McCLUSKY: Yes, I will.

PN8

THE COMMISSIONER: Yes. And you can tell me about it. Just to begin with, Mr Spark, you are happy for Mr Shaw to appear on behalf of the employer, is that right?

PN9

MR SPARK: Yes.

PN10

THE COMMISSIONER: Yes, thanks. Mr McClusky?

PN11

MR McCLUSKY: I am certainly not, seeing he is a barrister at law.

PN12

THE COMMISSIONER: Yes, no, that is all right, but you are going to let him, in any event because I am going to. Yes. Happy to grant you leave, yes. I think, Mr Shaw, given that Mr McClusky wants to intervene, best for me to hear his seeking to intervene, first.

PN13

MR SHAW: Well, is it necessary, under the Act?

PN14

THE COMMISSIONER: Well, I, well - - -

PN15

MR SHAW: Well under section 43 - - -

PN16

THE COMMISSIONER: Well, why don't I hear from him - - -

PN17

MR SHAW: - - - (2)(b) you must not grant him intervention.

PN18

THE COMMISSIONER: All right, just point me to the section.

PN19

MR SHAW: 42(3)(b). 43(2)(b), that is right.

PN20

THE COMMISSIONER: 43(2)(b). 43(2)(b).

PN21

MR SHAW: Well you have got to read (a) and (b) together, of course but - - -

PN22

THE COMMISSIONER: I do, indeed, yes. Well, I would need to hear from Mr McClusky with regard to those matters. Mr McClusky, yes?

PN23

MR McCLUSKY: Commissioner - - -

PN24

THE COMMISSIONER: Well why don't you tell us who you are and where you are from.

PN25

MR D. McCLUSKY: Sorry. I am representing the CEPU Plumbing Division.

PN26

THE COMMISSIONER: Yes.

PN27

MR McCLUSKY: I have been advised by my State secretary in the absence of an industrial officer, to appear and seek an adjournment. It is our understanding, from a member or members, that due process in terms of this agreement have not - or the consultation hasn't taken place in the appropriate matter and we would seek an adjournment to enable us to meet with our members in regard to it.

PN28

THE COMMISSIONER: So, do you say, Mr McClusky, that the situation outlined in section 43(2)(a) is what applies, rather than section 43(2)(b)?

PN29

MR McCLUSKY: Well, I am sorry that I am not aware of what 43(2)(a) says.

PN30

THE COMMISSIONER: What it says is that:

PN31

If the matter before the Commission is an application under division 2 or 3 of part VIB for certification of an agreement, the Commission (a) must on application, grant leave to intervene in the matter to any organisation of employees that was requested to represent a person as mentioned in subsection 170LK(4) in relation to the agreement, provided the request was not withdrawn.

PN32

So are you saying you have been requested to present a person, your union has been requested to represent a person?

PN33

MR McCLUSKY: That is correct.

PN34

THE COMMISSIONER: Yes, all right. And I note - well, thanks, Mr McClusky. Mr Shaw.

PN35

MR SHAW: Commissioner, the process required under the Act is fairly clear under section 170LK and obviously, we can't say whether any request was every made, with certainty, even though the stat decs, the pro-forma stat decs produced by the Commission require us to do so - - -

PN36

THE COMMISSIONER: Yes, but it would be a denial of natural justice to not allow any representations to be made on the subject, don't you think?

PN37

MR SHAW: Well only that if the procedures had been followed, the employer would certainly be aware. Because if the union had then sought to represent and the notices handed out clearly set out the entitlement of employees, if the procedure had been followed then the employer would have been well aware of this during the 14 day period - - -

PN38

THE COMMISSIONER: Yes, but then it becomes a matter of evidence whether it actually did occur and if - and Mr McClusky is telling me that he believed it did occur, I think it would be imprudent of me to proceed without allowing any evidence one way or the other, to be put before me.

PN39

MR SHAW: Well, with respect, Commissioner, section 170LK(5) states clearly:

PN40

If an organisation is so requested to represent such a person, the employer must give the organisation a reasonable opportunity to meet and confer with the employer about the agreement before it is made.

PN41

THE COMMISSIONER: Yes.

PN42

MR SHAW: Now, the simple fact is, no request was ever received from the union to have such a meeting and we can only assume that, either it is derelict in its duties or the request was not made before the agreement was made.

PN43

THE COMMISSIONER: Yes.

PN44

MR SHAW: The agreement was made on the day it was signed and you - I don't have a copy of it, myself. You have copies of all eight signed agreements - - -

PN45

THE COMMISSIONER: Yes.

PN46

MR SHAW: - - - the agreement has been made.

PN47

THE COMMISSIONER: Yes.

PN48

MR SHAW: And any application at this stage is too late and clearly barred by the Act. I mean, the Parliament wouldn't have passed the Act in that form unless this sort of circumstance was intended - - -

PN49

THE COMMISSIONER: Well, yes, Mr Shaw, you would only be inviting me to make a decision which might be the subject of an appeal and I think it really is very much in the best interests of all the parties if we try to resolve the imbroglio before I attempt to proceed to certify the agreement.

PN50

I am just wondering - I realise that this means drawing the process out but I - what I would suggest to the parties is that they try and have some discussions about it in the meanwhile, but I will actually list the matter to hear the - I will list the matter for after Anzac day and the CEPU can - and I will ask for written submissions from the CEPU, outlining why it believes and what its evidence is for and ask for statutory declarations in support of its claims that that provision, section 43(2)(a) is what applies rather than 43(2)(b) and for you to similarly submit evidence as to why section 43(2)(b) applies. How does that sound, Mr Shaw? I know you are not happy, but - - -

PN51

MR SHAW: Many an occasion I have left this place not happy but you needn't - - -

PN52

THE COMMISSIONER: Indeed. And happiness is a relative thing, anyway, it is - - -

PN53

MR SHAW: That is right, you needn't trouble yourself with that, Commissioner, but the - I am not sure that it is a question of evidence from the employer, I think it is a question of submissions but - - -

PN54

THE COMMISSIONER: Yes, all right.

PN55

MR SHAW: - - - that is for me to decide - - -

PN56

THE COMMISSIONER: Yes, yes.

PN57

MR SHAW: - - - of course, not for debate now.

PN58

THE COMMISSIONER: No. But I think, perhaps if I ask for some witness evidence from both sides, I think that would be the sensible thing because it really puts people to the proof. I think when people sit down and have to actually confront swearing a statutory declaration which exposes them to risks under the relevant legislation, you know, it causes them to think very, very seriously about it. Mr McClusky, how do you feel about that?

PN59

MR McCLUSKY: That would be fine.

PN60

THE COMMISSIONER: Yes, all right. Well, look, what I will do is, I will re-list the matter for - it will be, now, May. I hope that people are not going to be unduly inconvenienced. And with the listing, I will issue and I will also notify the CEPU and I will call for submissions on a timetable and statutory declarations. I am just - Mr McClusky, when do you think you would be able to get some written submissions and a declaration in? I note next week is an unusual week, it is a short week. Do you think you would be able to get something in by 28 April?

PN61

MR McCLUSKY: 28 April - - -

PN62

THE COMMISSIONER: Sorry, the 24 April, is the Friday - - -

PN63

MR McCLUSKY: With an industry shutdown from next Wednesday through until 28 April.

PN64

THE COMMISSIONER: Monday the 28th? Tuesday the 29th?

PN65

MR McCLUSKY: Well preferably say Wednesday the 30th.

PN66

THE COMMISSIONER: Wednesday the 30th, all right. Well that then, if perhaps I could have something from you by the following Monday and I will try and list it either for - although that week is looking pretty busy. It will either be that week or the next week. Good, all right, fine. Thank you very much. Well in those circumstances, I now adjourn, thank you.

ADJOURNED INDEFINITELY [12.18pm]