AG2002/6358, Transcript of Proceedings [2003] AIRCTrans 229 (24 January 2003)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 4, 179 Queen St MELBOURNE Vic 3000
(GPO Box 1114 MELBOURNE Vic 3001)
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TRANSCRIPT OF PROCEEDINGS

O/N VT1320

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

DEPUTY PRESIDENT IVES

AG2002/6358
C2002/5786
AG2002/6328

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Applications under section 170LJ of the Act
by Graincorp Operations for certification
of an agreement.

NATIONAL UNION OF WORKERS

and

GRAINCORP OPERATIONS LTD

Notification pursuant to section 99
of the Act of a dispute

APPLICATION FOR VARIATION
OF CERTIFIED AGREEMENT

Application under section 170MD(6) of the Act
for variation of certified agreement to
remove ambiguity.

MELBOURNE

10.00 AM, WEDNESDAY, 18 DECEMBER 2002

PN1

THE DEPUTY PRESIDENT: Yes. Good morning. Nice to see you all again. There is no chance this could be a Christmas visit I suppose.

PN2

MR L. JOHNS: I seek leave to appear on behalf of Graincorp.

PN3

MR T. LYONS: I appear for the National Union of Workers. With me is MR THOMPSON and MR RIDGEWAY.

PN4

THE DEPUTY PRESIDENT: There is no objection to Mr Johns' appearance?

PN5

MR LYONS: No.

PN6

THE DEPUTY PRESIDENT: Yes. Leave is granted.

PN7

MR JOHNS: Thank you, sir.

PN8

THE DEPUTY PRESIDENT: Look I have three matters before me. If I was to take them in the order that they were filed then I would be looking at the application by Graincorp under section 170MD(6). But I am not sure that that is an appropriate way to go forward. What is the view of the parties in terms of how you wish to have these matters proceed?

PN9

MR LYONS: We have had some discussion, your Honour, on a small matter of housekeeping. The union, you would be aware, filed matter 5786 which we had understood was a section 170LW notice rather than what it appears as being, section 99. Nothing turns on that because we subsequently filed the LJ application. So I can indicate to your Honour that we do withdraw the LW/99 matter which is 5786.

PN10

THE DEPUTY PRESIDENT: Right.

PN11

MR LYONS: So that matter can be - the matters dealt with in that notification can be dealt with in the other application so we do withdraw that matter.

PN12

THE DEPUTY PRESIDENT: Yes.

PN13

MR LYONS: That leaves us with the stand-down application and the application to certify what the union says is the new agreement. It is the parties' view, rather than put positions on the record at this point that we do seek your assistance in conference and it may be necessary to recall or go back on the record at some point later in the day.

PN14

THE DEPUTY PRESIDENT: Yes. Well, I assume - by looking at all of the documentation - that the matters are all related anyway. So perhaps if I was given a background in the first instance.

PN15

MR LYONS: Certainly.

PN16

THE DEPUTY PRESIDENT: And I am not sure that it matters much who goes first in respect of that. Mr Johns do you have any - - -

PN17

MR JOHNS: I am content for Mr Lyons to proceed.

PN18

THE DEPUTY PRESIDENT: Yes.

PN19

MR LYONS: Obviously your Honour has some very considerable background knowledge in relation to these matters. At this point if I can simply address the union's application for certification of the agreement. It is the union's view that the parties, with at various points the assistance of the Commission, reached a new enterprise bargaining agreement to replace the existing agreement which the application for Graincorp seeks to amend. It is therefore our view that there is a new agreement in place. Incidentally, your Honour, that raises an issue about the order in which these matters will be heard and determined in the event that that became necessary.

PN20

It is the union's view that the 170LJ application would need to heard and determined first on the basis that it is our view that the Commission will be varying an agreement that had been replaced and therefore would have no operation in any case. So, it is our view that that matter would have to be heard and determined first. In summary the factual position is this, your Honour, the parties reach an agreement that was committed to writing. That agreement was then voted on by the employees. So the agreement was made between the union and the employer.

PN21

The agreement then received the required valid majority. All the other requirements of section 170LT are met. What occurred then was that the employer declined to sign the agreement and in fact advised the union that they would not be signing the agreement, sought to withdraw from the agreement - however that is put. What the union did then was take the view that we had a valid agreement based on what our understanding of the status of the law is and sought to present that agreement to the Commission for certification.

PN22

We have done that. The agreement appears on the Commission's file only in copy form and only with the union's signature. The reason for that is the original with the union's signature is somewhere in the bowels of Graincorp and it is not within our possession to present to the Commission. Accompanying that agreement is a statutory declaration from Mr Donnelly, which attests to the requirements of the Act in relation to the application in general; and an application by the union, in an expanded form, containing some grounds.

PN23

As I said, it is our view, which we would expand upon at the relevant time, that it is not a party - be it the union, the employees or the company, or an employer I should say - is not able to withdraw from an agreement once it is made. And an agreement that is made, complies with the Act and is presented to this Commission, the Commission has an obligation to certify it. In fact there is no discretion about that, in our submission. It would however - - -

PN24

THE DEPUTY PRESIDENT: But there is a matter, Mr Lyons, of compliance with the rules.

PN25

MR LYONS: Yes. And as we foreshadow, I think, in the grounds of our application there would be the need for us to convince the Commission to exercise its discretion to depart from strict compliance with the rules of the Commission both in respect to the presentation of an employee statutory declaration, the matter is also some days out of time.

PN26

THE DEPUTY PRESIDENT: Yes. Well, there is also no signed agreement.

PN27

MR LYONS: Yes. Yes.

PN28

THE DEPUTY PRESIDENT: So, yes, it is finished.

PN29

MR LYONS: So on all of those grounds we would need to convince you to exercise your discretion to allow that. But those, in our submission, are not substantive matters. They are of the order of housekeeping and would not be matters that would ordinarily, in the course of a normal application, prevent certification of the matter. It is obviously a very difficult position but I think it is not unfair to describe the application we have made as being unusual. But there is some precedent for the position. The Commission in other matters has had to consider the strict application of the terms of the Act that where an agreement is made - and we specifically refer to the two decisions of the Commission which we take you to in some detail.

PN30

The first is - and I just note these for the record at this point. The first is a decision of his Honour, Senior Deputy President Lacy re Group Force Securitas Pty Ltd v ALHMWU. And that is contained in print PR909786 which we say is an analogous situation where an employer, after the making of the agreement, sought to withdraw from it. The other case - - -

PN31

THE DEPUTY PRESIDENT: But I think, from my recollection Senior Deputy President Lacy didn't actually certify the agreement because it didn't actually certify the agreement because he didn't comply with the rules.

PN32

MR LYONS: No, no, he didn't. Yes. Well, he found that there was no evidence before him that the employer party was a constitutional corporation. On that basis he was unable to certify the agreement. And we believe that we can satisfy your Honour that that is the case in relation to this employer at that tie. We also believe that the observations of Commissioner Gay in Air Services Australia v Civil Air Operations Officers Association of Australia, which is in print PR 922160, is instructive in terms of when an agreement.

PN33

But there is also some other authorities which have some bearing on when an agreement which is the essential turn of what the agreement we put would be. In terms of how those matters would proceed, as I say the primary submission we make is that our application would need to be heard and determined first, should that become necessary at the conclusion of conciliation.

PN34

THE DEPUTY PRESIDENT: Yes, Mr Lyons. If that does become necessary it would seem to me, given that there is no signed agreement that there is going to be a requirement to hear evidence, is there not, in terms of whether or not an agreement actually exists.

PN35

MR LYONS: Absolutely, your Honour. In relation to that my friend and I have had some brief discussion. It is the union's view that the proper way to proceed - the Commission would obviously be right in not proceeding this without a full argument of the matter.

PN36

THE DEPUTY PRESIDENT: Yes.

PN37

MR LYONS: We received formal advice from my friend last night that they object to the certification, that had been given informally. The way to proceed, in our submission, would be the exchange of contentions and witness statements in the form of evidence. Mr Donnelly would - has sworn up to a stat dec and may be required to attend for cross-examination. We would also have two other officials who would give evidence in relation to that - Mr Thompson and Mr Bauer.

PN38

THE DEPUTY PRESIDENT: Yes.

PN39

MR LYONS: So there would need to be the normal - the normal sort of exchange of process.

PN40

THE DEPUTY PRESIDENT: Yes. So we would need to have directions as to how that would proceed.

PN41

MR LYONS: Yes. And presumably, given the time of the year, that means that is off in January at some point then.

PN42

THE DEPUTY PRESIDENT: Yes. Okay.

PN43

MR LYONS: If the Commission pleases.

PN44

THE DEPUTY PRESIDENT: Yes. Thanks, Mr Lyons. Mr Johns.

PN45

MR JOHNS: Your Honour, we are content with the process that Mr Lyons has suggested for dealing with the issue of whether or not there is an agreement and that should be certified first. And then if there is, then it will have some impact on the 170MD(6) application. If there is not, again then we can proceed with that. But just briefly, by way of background, the company does object to the certification on the basis that there was no agreement.

PN46

And also on the basis that the requirements of the Act under section 170LT have not been met and there is no evidence of the employees genuinely voting in favour - of a valid majority of the employees genuinely voting in favour of the agreement which has been presented to the Commission for certification.

PN47

THE DEPUTY PRESIDENT: Well, there is a statutory declaration, is there not?

PN48

MR JOHNS: And that is why last night I sent a facsimile to the NUW requiring Mr Donnelly to be here for cross-examination on that. It is instructive, your Honour, that the statutory declaration is very vague in its terms. It doesn't tell the Commission what the actual process was in terms of - reaching what the union, the NUW, says is an agreement. It doesn't tell you when the votes were - when they occurred. It doesn't tell you what the outcome of the votes were. And, as I understand the chronology of events, there were some agreement in principle around about 8 October. And on 9 October - - -

PN49

THE DEPUTY PRESIDENT: This is the agreement in principle between the company and the union, is it?

PN50

MR JOHNS: That is right.

PN51

THE DEPUTY PRESIDENT: Yes.

PN52

MR JOHNS: And there is evidence - there will be evidence that there was a vote of the Graincorp employees at Geelong on 8 October. The version of the agreement which was forwarded to Graincorp and which is - which the union seeks to have certified, was only provided to Graincorp on 10 October. It was provided under cover of an e-mail which said:

PN53

Here is a final draft of the agreement.

PN54

There is no evidence that that agreement was ever voted on by the employees at Geelong.

PN55

THE DEPUTY PRESIDENT: So you are saying that that draft provided on the 10th differed from that which was put before the employees?

PN56

MR JOHNS: Yes, your Honour. There was a version of the agreement drafted on 26 August, which was provided to the company on 28 August. And it must be that version of the agreement that the employees at Geelong voted on, if they saw any agreement at all, on 8 October. And a new version of the agreement comes through to Graincorp on 10 October, and as I say under cover of an e-mail that says:

PN57

This is a final draft of the agreement.

PN58

So the Geelong employees have never voted on that form, which is the one which is before you for certification. On 14 October the employees at Sunshine voted on the agreement. And it is unclear from the statutory declaration whether they were voted on the 28 August version or the 10 October version. Now if it is the 28 August version, it means they voted on a version of the agreement which is not that which has been presented for certification. If they voted on the version that came through on 10 October then they didn't have it for 14 clear days before they voted on it.

PN59

THE DEPUTY PRESIDENT: Are there material differences between the versions, Mr Johns?

PN60

MR JOHNS: I am instructed that there are and some of those differences include differences around rates of pay - because there was a - it was discovered that they hadn't been rounded up properly in terms of the calculation of the 3.5 percent increase. I understand that I might need to get some further instructions about that but that is my understanding at this point in time.

PN61

THE DEPUTY PRESIDENT: Yes.

PN62

MR JOHNS: So that is a significant issue.

PN63

THE DEPUTY PRESIDENT: Yes.

PN64

MR JOHNS: The employees at Portland voted on the agreement, we don't know which version, on 23 October. So again if they voted on the version that came - that was presented on 28 August, that is not the version which the union seeks to certify. And if they voted on the version that came through on 10 October, they haven't been provided with 14 days notice of the form of agreement which they have to vote on. So in my submissions the evidence will demonstrate that the Commission cannot be satisfied that all of the requirements of the Act were complied with.

PN65

And opposed to being compelled to certify the agreement, the Commission will be compelled to reject the certification of the agreement. And that will be the evidence that we seek to produce if the matter runs to hearing.

PN66

THE DEPUTY PRESIDENT: Yes. Thanks, Mr Johns. Mr Lyons?

PN67

MR LYONS: Look, I think all of those matters will fall out, your Honour. I mean, there is - the reality is that the union was responsible for presenting the agreement to the employees, which is the normal course of events that these matters take in a unionised workforce. We reject the version of events which has been put by our friend and that will need to fall over with the evidence at the time. Your Honour will either be satisfied by that or not. It is nice to say - we have a view that there was a memorandum of agreement. It was voted on by the employees. The terms of mr Donnelly's statutory declaration are accurate.

PN68

And with some additional evidence from the officials directly involved in the valid majority process, that will become clear to your Honour. It is one of those examples where I think the - as with many organisations employers and registered - and unions - and employer organisations fro that, it is often a senor person who signs these declarations who is not necessarily directly involved but accepts the advice such as myself or Mr Thompson, or Mr McConchie for that matter. We say those matters will fall out with the evidence and your Honour will either be satisfied or not.

PN69

THE DEPUTY PRESIDENT: Yes.

PN70

MR LYONS: I might say, however, in the event that there is a suggestion about valid majority that is easily remedied. It doesn't change the substantive fact there is an agreement between the union and the employer. And I don't know whether I am drawing anything into it, my friend didn't touch on that point. The matter of value of the employees can be quickly remedied, in our submission, so those technical difficulties could be fixed in any case - if they exist.

PN71

THE DEPUTY PRESIDENT: Yes.

PN72

MR LYONS: If the Commission pleases.

PN73

THE DEPUTY PRESIDENT: Thanks, Mr Lyons.

PN74

MR JOHNS: If I might address that issue, your Honour?

PN75

THE DEPUTY PRESIDENT: As long as we are not going to go back and forwards, Mr Johns.

PN76

MR JOHNS: No. No. Just very briefly. We say that there is no agreement because the person who had the authority to reach and conclude an agreement with the NUW was Mr Joe Delio. And there can be no evidence from the union that at any stage Mr Delio agreed with the form of the agreement either on 28 August or 10 October. And it was made perfectly clear to the NUW that it was Mr Delio who had the actual authority to conclude the agreement and that Mr MrConchie did not. And Mr Delio will be able to come and give evidence about that. There is no - there can be evidence that Mr Delio reached agreement with the union on this matters.

PN77

THE DEPUTY PRESIDENT: Yes. A final say, Mr Lyons, and then let us go into conference.

PN78

MR LYONS: Well, we will be giving evidence that Mr Delio agreed.

PN79

THE DEPUTY PRESIDENT: Yes.

PN80

MR LYONS: I mean - - -

PN81

THE DEPUTY PRESIDENT: Thank you. We are going to go into conference.

NO FURTHER PROCEEDINGS RECORDED