AG2003/5413, Transcript of Proceedings [2003] AIRCTrans 3186 (24 July 2003)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT CARTWRIGHT

AG2003/5413

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LJ of the Act
for certification of the Unilever North
Rocks Enterprise Agreement 2003

SYDNEY

10.08 AM, THURSDAY, 10 JULY 2003

Continued from 24.6.03

Reserved for Decision

PN49

THE SENIOR DEPUTY PRESIDENT: Since I note a change of appearance from when we last dealt with this matter, we'd better do the appearance first for this.

PN50

MR J. HOWARD: If the Commission pleases, I appear on behalf of Unilever.

PN51

MR M. THISTLETHWAITE: If the Commission please, I appear for the Australian Workers Union.

PN52

MR K. NEILSON: If the Commission pleases, I appear on behalf of the AMWU, New South Wales Branch. I also mention an appearance for MR ROBINSON of the ETU.

PN53

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Neilson. Can I first of all thank you for the submissions that you've put in accordance with directions and confirm that I've read those. Mr Howard, I think it was the company that put in the application wasn't it, so I'll turn to you first.

PN54

MR HOWARD: Thank you, your Honour. If the Commission pleases, in the previous hearing of this matter you already mentioned, your Honour, you raised concerns with clauses 22 and 23 of the Unilever North Rocks Enterprise Agreement 2003, that is before the Commission for certification. These clauses dealt with union representation and labour hire agencies. As you've already mentioned, your Honour, you have received our written submission filed on behalf of Unilever in this matter.

PN55

In addition to the written submission, I would like to make some short oral submissions. Firstly, I believe that the company's submissions are consistent with the Full Bench decisions in Atlas Steels which was followed in the decision of National Transport to which your Honour drew the parties attention to in the previous hearing. I respectfully submit in relation to clause 22, union representation, that this type of clause with similar wording has been in agreements that have been consistently certified by this Commission.

PN56

I draw your attention to paragraph 9 of the written submission on behalf of the company and in that it refers to the transcript in our written submission of Costas Distribution Centre before Deputy President Ives. The written submission also by the AMWU in this matter also deals extensively with this type of clause. I respectfully submit that the Commission certify the agreement with this clause and its current wording. In the alternative, the company has also proposed a slight change to the wording in paragraph 14 of the company's submission, if that further satisfies your Honour in respect of section 170LI(1). In relation to clause 23, the labour hire agencies - - -

PN57

THE SENIOR DEPUTY PRESIDENT: Just before you go off clause 22. You've referred me to the transcript of the matter before Deputy President Ives on 16 December, can I take you to paragraph 75 of that transcript. Deputy President Ives was dealing with the clause before him which is different to the clause in this agreement at clause 22, and I'm only looking at the second paragraph of clause 22. Now, this was Mr Lyons who was the main advocate in this case and if you look at paragraph 75 he says:

PN58

The right to interviews expressed as being in respect of employees not union members ...(reads)... in the union relationship not the employer/employee relationship.

PN59

Now, in the context of the matter that was before Deputy President Ives, that appears to be a concession that the clause that we have in this agreement before us today would not be one that the advocate of that case, in fact, the advocate in that case concedes that such a clause would not apply to the requisite relationship. So referring me to the transcript of that case how do you want to deal with that question.

PN60

MR HOWARD: I would like to deal with that question, your Honour, that in respect of union representation that the union members here would obviously also be employees and that clause 22 facilitates the ongoing relationship under section 170LJ of this type of agreement, and that reference that's in my written submission.

PN61

THE SENIOR DEPUTY PRESIDENT: Now, you referred to the Atlas Steels decision, and in that the Full Bench at paragraph 18 focussing on section 170LI, that at the end of that paragraph they said:

PN62

The terms of section 170LI indicate that the nature of the matters is to be assessed by reference to the ...(reads)... by the agreement as such.

PN63

In other words they've applied to section 170LI, the test that was established in the Alcan High Court case. The argument that you've just raised was actually dealt with by the High Court in the Alcan case and rejected, and you can find a reference to that in the Alcan case at - and I'm not sure from my notes whether it's page 107 or it's paragraph 107. Yes, it's [1994] HCA 34; 181 CLR 96 at page 107. I think you'll see there the High Court deals with that and specifically the court says:

PN64

Those considerations which depend on the nature and role of trade unions in Australia show that although the subject matter ...(reads)... and not at all as employees.

PN65

Essentially the court rejects that argument and my question is, how am I to accept it?

PN66

MR HOWARD: I would also respectfully submit, your Honour, that the second paragraph is related back to the first paragraph and in the first sentence there of clause 22, the employer endorses the right of its employees to have proper representation in their dealings with management. The second sentence goes on:

PN67

The accredited delegate shall be allowed the necessary time during working hours to discuss with the employer or his representative ...(reads)... whom they represent.

PN68

I respectfully submit that the second paragraph just continues on with the employee relationship as to that representation.

PN69

THE SENIOR DEPUTY PRESIDENT: How does it do that?

PN70

MR HOWARD: Your Honour, it mentions there about delegates and that representation. Delegates within that arrangement are - - -

PN71

THE SENIOR DEPUTY PRESIDENT: Sorry, I may have misheard you. Were you referring to the second paragraph or the second sentence?

PN72

MR HOWARD: Sorry, the second sentence.

PN73

THE SENIOR DEPUTY PRESIDENT: Sorry, I probably misheard you. I thought you were referring to the second paragraph. Go ahead.

PN74

MR HOWARD: That would be my submission, your Honour, that the second paragraph then continues to facilitate those arrangements within the first two sentences of the first paragraph.

PN75

THE SENIOR DEPUTY PRESIDENT: Yes, so my question is, how does it do that?

PN76

MR HOWARD: As it says there with respect to delegates, delegates being, if you like, the union representation on site.

PN77

THE SENIOR DEPUTY PRESIDENT: But the second paragraph deals with accredited officials of the union.

PN78

MR HOWARD: That's correct, your Honour, and clause 17 which is the disputes procedure also writes into the agreement a role for accredited union officials to participate in the dispute settling procedure.

PN79

THE SENIOR DEPUTY PRESIDENT: Yes. Generally it's a role for delegates but at stage three, the delegate together with the union organiser shall confer and the timing of this conference will depend on the ability of the union organiser to make himself/herself available on the site. So other than the reference to the organiser, the role in the dispute procedure is for the on-site delegates. So what did you want to say about that?

PN80

MR HOWARD: Again, your Honour, that the second paragraph of clause 22 which your Honour is having difficulty with, is there to continue to facilitate those relationships including the dispute settling procedure within the agreement and therefore pertains to the employee/employer relationship.

PN81

THE SENIOR DEPUTY PRESIDENT: But the stated purpose is for the purposes of conversing with or interviewing union members on genuine union business. So it's restricted to union members.

PN82

MR HOWARD: As they would be if they were seeking the union to represent them in that matter.

PN83

THE SENIOR DEPUTY PRESIDENT: Can I ask you something else on the operation of this particular paragraph. Presumably you have some sort of regime on site for gaining entry, for anyone to gain entry to the site. So if I were to come to your plant today and turn up at the gate, what would happen? What would I have to do to gain entry?

PN84

MR HOWARD: Your Honour would be stopped at the gate entry by a security person, asked why you're coming onto site and direct you to a visitor car park and then to reception for the signing in process where you'd be signed in.

PN85

THE SENIOR DEPUTY PRESIDENT: Which involves what?

PN86

MR HOWARD: Which involves signing into a book, being handed a pass which has some site safety information on it and then the person who you are there to see would be called and would meet you at reception and escort you to wherever you wish to go on site.

PN87

THE SENIOR DEPUTY PRESIDENT: Do I have to wear that pass while ever I'm on the site?

PN88

MR HOWARD: Yes, you do, your Honour.

PN89

THE SENIOR DEPUTY PRESIDENT: And I'd be held at reception until someone comes to meet me?

PN90

MR HOWARD: Correct, your Honour.

PN91

THE SENIOR DEPUTY PRESIDENT: And then escorted by that person around the site?

PN92

MR HOWARD: Yes, you would be, your Honour.

PN93

THE SENIOR DEPUTY PRESIDENT: Would I be able to go anywhere on the site?

PN94

MR HOWARD: No, you would not.

PN95

THE SENIOR DEPUTY PRESIDENT: What restricts me from going anywhere on the site?

PN96

MR HOWARD: Only specific safety areas on the site, your Honour. The person who would be responsible for the visitor ensures that they are only going into areas in which they are safe to do so.

PN97

THE SENIOR DEPUTY PRESIDENT: And can I go into areas where work is performed?

PN98

MR HOWARD: Yes, you may, your Honour.

PN99

THE SENIOR DEPUTY PRESIDENT: And can I talk to anyone doing work?

PN100

MR HOWARD: It depends on the purpose for which you are there, your Honour, but there's no overall restriction.

PN101

THE SENIOR DEPUTY PRESIDENT: So as I understand what you're saying, you're really under the supervision of the person who has taken responsibility for you at reception?

PN102

MR HOWARD: That's correct, your Honour.

PN103

THE SENIOR DEPUTY PRESIDENT: And what about when I leave the site, what do I do then?

PN104

MR HOWARD: There is a signing out process, your Honour, and removal of the tag at reception.

PN105

THE SENIOR DEPUTY PRESIDENT: While I'm on the site, am I able to interfere with production requirements?

PN106

MR HOWARD: No, your Honour.

PN107

THE SENIOR DEPUTY PRESIDENT: So if I look at this clause, what does that clause do that is different to what you've just described that I have to comply with as a visitor to the site? It appears that an official has to notify security, sign in at reception and be accompanied by someone and then going down may not interfere with production requirements. Is that any different to what you've just described to me?

PN108

MR HOWARD: No, your Honour, I guess from a practical operational prospective that most visitors to the site, of course, will not necessarily be visiting employees on the line or asking for employees to be removed from the line and it does say, provided it does not interfere with production requirements. The majority of the visitors on the site, of course, are there to see, if I may, more managerial employees of the company rather than employees operating on the production lines themselves and therefore, this is written in and with regards to those production line employees.

PN109

I guess, just making sure that that's very clear both to the employees in relation to this agreement that they must also as part of this process follow a protocol to ensure that it is done correctly and obviously at the end of the day, does not interfere with production requirements.

PN110

THE SENIOR DEPUTY PRESIDENT: Now, if we look at the purpose of the visit for the purpose of conversing with or interviewing union members on genuine union business, is genuine union business the same as representing someone in a dispute settlement procedure?

PN111

MR HOWARD: I would respectfully submit, your Honour, that it could include representing an employee during the dispute settling procedure.

PN112

THE SENIOR DEPUTY PRESIDENT: Could also include canvassing for votes in a union election or organising the union picnic or organising the May Day march?

PN113

MR HOWARD: Under the term genuine union business, your Honour is probably quite correct as well.

PN114

THE SENIOR DEPUTY PRESIDENT: Sorry, you were going to go onto the next clause, labour hire agencies.

PN115

MR HOWARD: Thank you, your Honour. In relation to clause 23, the labour hire agencies, I just wish to add to the written submission that the Full Bench decision in National Transport at paragraph 37 where their Honours state:

PN116

The contract to carrier provisions deal not at all with the relationship of National Transport and any employees present or future.

PN117

THE SENIOR DEPUTY PRESIDENT: Sorry, which paragraph was that?

PN118

MR HOWARD: Paragraph 37 of the decision, your Honour. It is the last two sentences of that paragraph. I also refer your Honour to paragraph 38 and the second sentence:

PN119

There is nothing in the contract carrier provisions that suggest any linkage with the provisions regulating the wages ...(reads)... and are expressed as daily rates.

PN120

I respectfully submit that the clause in the Unilever North Rocks Agreement can be distinguished from the contract provisions in the National Transport Agreement. In addition to paragraph 16 and 17 of the company's written submission which relates to the fact that employees from labour hire agencies are paid under the classifications contained within the agreement, that they in fact can become employees of Unilever into the future.

PN121

I draw the Commission's attention also to clause 10A of the agreement on page 7 and also to the appendix A at page 30 of the agreement dealing with wage rates where there is reference to a casual level two rate as part of the agreement.

PN122

THE SENIOR DEPUTY PRESIDENT: Sorry, you said 10A?

PN123

MR HOWARD: Yes, clause 10A at page 7 of the agreement, your Honour.

PN124

THE SENIOR DEPUTY PRESIDENT: Now, this deals with casual employees does it not?

PN125

MR HOWARD: That's correct, your Honour.

PN126

THE SENIOR DEPUTY PRESIDENT: And I think you said last time that those covered by clause 23 are in fact employees of another employer?

PN127

MR HOWARD: They are of another employer, your Honour. However, they are casuals and they are paid under the rates of the Unilever agreement.

PN128

THE SENIOR DEPUTY PRESIDENT: Sorry, you say they're?

PN129

MR HOWARD: They are paid - - -

PN130

THE SENIOR DEPUTY PRESIDENT: They're casual employees of Unilever?

PN131

MR HOWARD: They are potential employees of Unilever.

PN132

THE SENIOR DEPUTY PRESIDENT: But when they work at the North Rocks site, who is their employer?

PN133

MR HOWARD: We sometimes employ casuals direct, your Honour.

PN134

THE SENIOR DEPUTY PRESIDENT: Yes, and that's covered by clause 10A?

PN135

MR HOWARD: That's correct, but 10A also covers casuals engaged through a labour hire agency.

PN136

THE SENIOR DEPUTY PRESIDENT: Where does it do that?

PN137

MR HOWARD: That is the arrangement that the company has with the employees and with the labour hire agency that we pay any casual who is part of the normal operating function the rates applicable under the agreement at the time.

PN138

THE SENIOR DEPUTY PRESIDENT: You say you pay them? Surely their employer pays them?

PN139

MR HOWARD: We are invoiced through the employer for the rates under the enterprise agreement for the North Rocks -

PN140

THE SENIOR DEPUTY PRESIDENT: So the commercial contract you have with a labour hire company means that you are invoiced at labour rates regulated by this agreement?

PN141

MR HOWARD: Correct, your Honour.

PN142

THE SENIOR DEPUTY PRESIDENT: But 10A doesn't appear to refer to employees of labour hire companies, does it?

PN143

MR HOWARD: No, it refers to cover all casual employees.

PN144

THE SENIOR DEPUTY PRESIDENT: Presumably they're employees of Unilever?

PN145

MR HOWARD: There is nothing in that clause that specifies whether they are engaged by Unilever or through a labour hire agency.

PN146

THE SENIOR DEPUTY PRESIDENT: I notice that the parties bound are employees of Unilever Australia Limited employed at North Rocks in the classifications within this agreement, but the employees covered by 23, you say are employees of the labour hire company?

PN147

MR HOWARD: Correct, your Honour.

PN148

THE SENIOR DEPUTY PRESIDENT: There's a commercial contract that sets out the agreement between the labour hire company and Unilever as to how Unilever is to be invoiced.

PN149

MR HOWARD: The clause 23 is a clause that relates to our relationship with our employees that provides them with the understanding that casuals employed through a labour hire agency will receive the same remuneration as casuals engaged by Unilever directly.

PN150

THE SENIOR DEPUTY PRESIDENT: Where does it say that?

PN151

MR HOWARD: That's certainly the intent, your Honour, of clause 23.

PN152

THE SENIOR DEPUTY PRESIDENT: All that clause 23 says, apart from the introductory section is manufacturing employees acquired through such agencies will have an EBA with AWU Greater New South Wales Branch and then the same thing for either AMWU or CEPU. It says nothing about the terms of employment.

PN153

MR HOWARD: I understand that, your Honour. The intent of having that clause in there though was to cover that relationship.

PN154

THE SENIOR DEPUTY PRESIDENT: A relationship with people who are not your employees?

PN155

MR HOWARD: A relationship with our employees so that they understood or we had an agreed position as to how employees brought in under a labour hire agency were to be paid to - how they perform. Probably not how they perform work, I take that back but certainly, if you like, to provide a level of comfort to our employees that they would not be placed at a disadvantage of employees being brought in under a labour hire agency.

PN156

THE SENIOR DEPUTY PRESIDENT: That's similar to the sort of thing considered by National Transport, isn't it, in that the paragraph you referred me to starts off as:

PN157

We're not persuaded by Mr Murdoch's submission that contract carrier provisions are justified by the interest employees ...(reads)... upon which contractors are engaged.

PN158

and then it goes on to deal with the sections you refer to and indeed as one reads the decision in that case, the clause or the agreement went on to enclose quite a lot of detail about how contract carriers were to be remunerated and so on. In our clause, there's nothing about how they're to be remunerated.

PN159

MR HOWARD: There is not, your Honour, in the clause as it currently stands.

PN160

THE SENIOR DEPUTY PRESIDENT: Except that appendix three has this one reference at page 45. It's subsection (3) of appendix three headed Contractors and then under (e) it says:

PN161

When working as part of the normal ongoing maintenance ...(reads)... contractors will be covered by the terms and conditions of the Unilever North Rocks Enterprise Agreement.

PN162

I take it that's a clause purporting to apply to the terms of this agreement to contractors?

PN163

MR HOWARD: Contract personnel yes, your Honour.

PN164

THE SENIOR DEPUTY PRESIDENT: So to the extent that clause 23 has operation, what do you say that operation is again?

PN165

MR HOWARD: The operation is to provide to our employees that when casuals are used on site through a labour hire agency that they will not be and I know it doesn't say the words, your Honour, but not engaged on terms that would place our employees at a disadvantage.

PN166

THE SENIOR DEPUTY PRESIDENT: Now, I'm not a lawyer but in my time in the Commission, I have picked up that the first principle of construction is that you look at the plain meaning of the words of the clause. That's not the plain meaning of the words of that clause, is it?

PN167

MR HOWARD: Your Honour, I take your point from the first hearing and that in the company's submission, there is an alternative wording that we have put forward for that clause which again does not alter the intent of that clause, but attempts to remove any ambiguity that your Honour may find in that clause.

PN168

THE SENIOR DEPUTY PRESIDENT: And that's the suggestion at paragraph 19 of your submissions?

PN169

MR HOWARD: That's correct, your Honour.

PN170

THE SENIOR DEPUTY PRESIDENT: And on what basis do you say that the agreement could now be varied to include that amendment?

PN171

MR HOWARD: In this clause, as a commitment to the employees that the permanent workforce will not be placed at a disadvantage to the use of casuals. It is agreed that the overall pay rates and conditions for labour hire agency employees used to supplement the normal crews will be in accordance with this agreement. So this clause is in fact pertaining to the employer/employee relationship.

PN172

THE SENIOR DEPUTY PRESIDENT: Yes, but sorry, I was asking something slightly different and I think the AMWU goes to it in submissions saying at the very last paragraph:

PN173

Can the Commission amend the agreement in the manner suggested by the employer ...(reads)... back to the employees for a fresh vote.

PN174

How would you respond to that?

PN175

MR HOWARD: In the Atlas Steels, your Honour, I'll just find the appropriate clause, paragraph -

PN176

THE SENIOR DEPUTY PRESIDENT: I think they refer to substantive amendment, don't they?

PN177

MR HOWARD: Yes, they do, your Honour.

PN178

THE SENIOR DEPUTY PRESIDENT: Yes, paragraph 42.

PN179

MR HOWARD: Yes, your Honour, thank you:

PN180

Where a substantive -

PN181

and I emphasise the word "substantive" -

PN182

amendment is required to remove an impediment to certification, that amendment must be brought about in the manner ...(reads)... will be subject to the agreement.

PN183

Your Honour, it's the company's submission that the wording change proposed because of the intent of the parties at the time of making that agreement has not altered, that, in fact, the change to the wording is not substantive in matter and therefore open to the Commission if obviously with the approval of the parties present that the wording be changed. It's not substantive of matter and therefore does not need to go back to the employees for a further vote.

PN184

THE SENIOR DEPUTY PRESIDENT: How do you say it's not substantive? If you plain meaning of the existing clause 23 and then the plain meaning of your suggestion of a new clause 23, how do you say that's not a substantive amendment?

PN185

MR HOWARD: Only based on the intent of the parties at the time that the agreement was being made, your Honour, and it is clarifying the ambiguity in the original wording that your Honour raised. I have nothing further to add, your Honour, if the Commission pleases, unless the Commission has more questions for me at this point.

PN186

THE SENIOR DEPUTY PRESIDENT: Thank you very much. Mr Thistlethwaite?

PN187

MR THISTLETHWAITE: Thank you, your Honour. Your Honour, we submit that the application for certification of the Unilever North Rocks Enterprise Agreement 2003 is consistent with the provisions of the act. In particular, part VIB division 2 of the act which, of course, relates to the making of certified agreements with constitutional corporations and the Commonwealth.

PN188

Specifically, your Honour, we submit that clauses 22 and 23, the subject of these proceedings of the agreement do not offend section 170LI(1) of the act and are capable of forming part of the certified agreement. In making that submission, your Honour, I just wish to take the Commission through a number of provisions in the act which we submit support our contention and the first of those provisions is section 3 of the act which, of course, relates to the principle object of the legislation.

PN189

If I look at section 3, it reads:

PN190

The principle of this act is to provide a framework for co-operative workplace relations which promotes the economic ...(reads)... people of Australia by -

PN191

and, of course, the section goes on to list a number of subsections which promote that principle object. I draw the Commission's attention to subsection (b) which reads that:

PN192

Ensuring that the primary responsibility for determining matters affecting the relationship between employers and employees rests ...(reads)... or enterprise level.

PN193

and in subsection (c):

PN194

Enabling employers and employees to choose the most appropriate form of agreement for their particular circumstances ...(reads)... by this Act.

PN195

Now, your Honour, we say that they're important provisions in relation to this particular issue and, of course, they set the tone and character of the act in relation to the following provisions in the act which relate to the processes and procedures of the Commission in certifying agreements. It's our submission that those objects place emphasis on the wish of the parties relating to the procedure for negotiating agreements at a workplace and also to the form and content of those agreements.

PN196

Now, of course, we make that submission based on a number of restrictions in the act which oblige the parties to follow certain procedures in relation to form and also the content of agreements we say that has to be balanced against the emphasis which the objects are placed on the wish of the parties, and that's I think reflected your Honour in the fact that there are very few provisions within the Act which relate to and provide a prescription for the form and content of agreement. I think it's generally accepted, and certainly detailed in the Act that there are certain prescriptions for the form of agreements relating to the term and duration of an agreement. The fact that they have to contain a provision relating to the settlement of disputes, they have to name the parties, obvious things like that. There are also two basic tests of course which the Commission - - -

PN197

THE SENIOR DEPUTY PRESIDENT: On that, given your statement that there are very few, I've forgotten the word you used, but - - -

PN198

MR THISTLETHWAITE: Prescriptions.

PN199

THE SENIOR DEPUTY PRESIDENT: Prescriptions, thank you, that's a good one. Those that are there therefore presumably are serious ones.

PN200

MR THISTLETHWAITE: Definitely, your Honour, we don't contend anything otherwise. Certainly the two tests which do apply, the no disadvantage test in particular is a very important test in terms of ensuring that safety net commitments have been met by the parties and of course the test in section 170LI relating to the nature of the relationship between the parties.

PN201

I accept your Honour's characterisation of the importance of those particular provisions, but we say that it's a natural extension of the objects that the provisions relating to the certification of agreements where there are questions relating to the admissibility or otherwise of particular provisions in the agreement and their ability to meet those required tests. But if there is a doubt that the benefit should fall with the parties, and that's consistent with the reading of the objects of the Act, and in particular that the Commission, and other persons, should be reluctant to reinforce inferences into the nature of those words and also the nature of the relationship between the parties to which those words relate.

PN202

So in a nutshell, our submission in that respect of the principles of the Act is one that if the clause is borderline, your Honour, and there are questions relating to its admissibility, unless it greatly offends the Act, then the benefit of the doubt we say should go with the parties and their intent in relation to those particular clauses in the agreement that's consistent with the objects of the Act and we say a number of authorities of this Commission, and I just wish to hand up an authority, a decision of Munro J, if I may. Might I also hand up the particular enterprise agreement, or certified agreement to which the decision relates.

PN203

Now, the decision of Munro J, Clout Engineering Pty Limited and the AMWU relates to the Clout Engineering Fabrication and Mechanical On Site Construction Enterprise Agreement for New South Wales 1998/99. The certification was 6 October 1998, and the subsequent decision was 22 October 1998. The reason for the subsequent decision was I understand the questioning of his Honour's decision to certify certain aspects of this particular agreement, and in particular, clause 27 of the agreement which relates to industrial relations matters.

PN204

If I could take the Commission to that particular clause. The clause is based on a premise of collective industrial relations and continuing productive relationships with the union at the particular site. The Commission will note that at clause 27.2 there's an encouragement by the parties for employees to maintain union membership. The clause goes on at 27.3:

PN205

To encourage all employees to partake in union meetings and exercise their voting rights.

PN206

It also goes on at 27.4:

PN207

To allow full access to its employees during normal working hours of the union officials.

PN208

At 27.5:

PN209

To allow workplace union delegates adequate time at facilities during normal working hours to attend union duties.

PN210

Can I also just point out to the Commission clause 13 of this particular agreement, and it's almost identical to clause 23 which is the subject of these proceedings, and that clause also relates to supplementary labour. In the second half of that clause it states:

PN211

That this supplementary labour may be casual hire or weekly employees or bona fide subcontractors who have an enterprise agreement with the AFME/PKIU ...(reads)... to its direct labour.

PN212

So a similar clause, a particular clause in question in these proceedings. Now, if I take your Honour to Munro Js decision on 22 October 1998, his Honour spends quite a number of pages outlining the processes of the Commission in relation to certification and the increasing workloads the Commission is faced with in relation to certified agreements over the past couple of years, and in particular, in the early years since the adoption of the Workplace Relations Act. His Honour makes some important points in relation to construction at paragraph 14.

PN213

THE SENIOR DEPUTY PRESIDENT: That's the one where you've highlighted.

PN214

MR THISTLETHWAITE: Yes, and in that paragraph his Honour states:

PN215

However a suggestion along these lines has been made. The making of it has inspired me ...(reads)... it must be a duck.

PN216

Now, besides his Honour's preoccupation with certain members of the game species, your Honour, that's a very important piece of construction in relation to these dubious clauses which often come before the Commission and that's some authority which we say supports our proposition that where the clause may be borderline or may raise suspicious, that the Commission should be reluctant to read wrong inferences from those words and should give the benefit of the doubt to the parties and the intent that they operated on when the agreement was agreed upon and the application was made to the Commission.

PN217

THE SENIOR DEPUTY PRESIDENT: Well, isn't his Honour saying there that, look, it's the plain meaning of the words in the agreement have had priority independent of inferences that people may wish to read into it?

PN218

MR THISTLETHWAITE: That's correct, that's very much correct. If I could now, your Honour, I just wish to take the Commission through a number of recent authorities which relate to the construction of section 170LI(1) and perhaps it's convenient if I hand up those authorities in one go. The first authority to which I wish to refer your Honour is the Electrolux Home Products Pty Limited and Australian Workers Union decision of the Federal Court, a decision of his Honour Justice Merkel, 14 November 2001.

PN219

Of course, this decision concerns the serving of a log of claims by unions on Electrolux which included amongst other issues a number of parts of the claim which were the subject of these proceedings and are listed at the bottom of page 5 of the decision. For the purposes of these proceedings, it's important to note that the claim included a right of entry and shop stewards rights including the provision of such as reasonable access to shop stewards to email, internet, facsimile, photocopying facilities and confidential interviews with new employees. Something similar, I would anticipate, in terms of a claim as the claim which may have been placed on Unilever in relation to having clause 22 placed in the particular agreement.

PN220

At about point 4, point two five of the page, sorry, your Honour, page 6 that is the decision notes that the union's claiming, of course, included the payment of a bargaining agents fee and that became a substantive issue which was determined in relation to this particular matter. Now, during the negotiations relating to this particular decision, of course, the union served notices pursuant to section 170MO on the employer, Electrolux and Electrolux, of course, contended that the union's industrial action was in support of inter alia claims that did not pertain to the relationship between the employer and the employee.

PN221

Now, I just wish to take your Honour firstly to some comments that Merkel J made in relation to the shop stewards access claim and they're principally contained at page 18 of the decision. At the top of the page there his Honour states:

PN222

The claim for access to facilities is merely a machinery or ancillary provision for the purposes of better enabling employees ...(reads)... requisite relationship.

PN223

So in that respect, his Honour is quite clear that the claim relating to the role of the shop steward at the site is certainly within the requisite relationship contained in section 170LI(1). His Honour then goes on to make a number of points in relation to the construction of section 170LI and they're contained beginning at page 20 of the decision.

PN224

Can I just draw your Honour's attention to the bottom paragraph at that page which reads:

PN225

The question is whether the industrial action being pursued as protected action by the unions in September 2001 was for the purpose of ...(reads)... as to the requisite relationship.

PN226

His Honour goes on:

PN227

Section 170LI does not require that all of the terms of the proposed agreement must pertain to the requisite relationship ...(reads)... about the requisite matters.

PN228

and the quote, of course, goes on. Now, I suppose it's fair to say that his Honour takes a whole of an agreement approach in relation to section 170LI, and his words can be construed as pointing to the fact that on the whole the agreement must pertain to the relationship between the employer and the employee to satisfy section 170LI. But there may be clauses which in the minor respect do not apply to that relationship and certainly recognises that clauses which are incidental and peripheral to would meet the requisite relationship.

PN229

Now, of course that case was appealed to the Full Court of the Federal Court and that's the second authority to which I wish to draw the Commission's attention. That's the decision of the Automotive Food, Metals Engineering, Printing and Kindred Industries Union v Electrolux Home Products, 21 June 2002, a decision of the Full Federal Court, Wilcox, Branson and Marshall JJ.

PN230

Now, in that particular matter the court was asked to look at the legality or otherwise in terms of section 170LI of the union bargaining fees course. I wish to point out to the Commission that the shop stewards clause was not the subject of these proceedings, and that's pointed out quite clearly at page 7 of the decision, at paragraph 14, that the court states in the second sentence?

PN231

Consequently no issue remains in respect of employees entitlements ...(reads)... relating to the bargaining fee.

PN232

Now, in relation to the bargaining fee the court determined that Merkel J took the wrong approach, during the bargaining agents fee, and I think it's worth pointing out your Honour that in relation to the bargaining agents fee, Merkel J, of course decided that that particular claim did not relate to the requisite relationship between the employer and employees contained in section 170LI.

PN233

As I stated the Full Court determined that Merkel J, took the wrong approach. The decision in that respect is contained at paragraph 97 of the decision, page 23, and in the second part of that paragraph 97 the court states:

PN234

The issue was not whether the proposed agreement satisfied the requirements of section 170LI ...(reads)... 170ML(2)(e).

PN235

The court went on to determine that the industrial action did fall within that particular clause and therefore quashed the decision of his Honour at first instance. But albeit in obiter the court did make a number of important points in relation to the construction of section 170LI of the Act and those points begin at paragraph 98. The court states that:

PN236

Under the circumstances it is not necessary for us to express a final view about Electrolux's other propositions ...(reads)... as between the parties.

PN237

The court then goes on your Honour, as I stated earlier, to detail a number of the principles of the Act and how that construction fits well within those principles. So again we submit that the submissions that we made in relation to those two particular clauses do fit well with the established authority and also the principles of the Act.

PN238

THE SENIOR DEPUTY PRESIDENT: But you would be well aware also that both of those decisions have been dealt with in the Commission cases colloquially known as Atlas Steels.

PN239

MR THISTLETHWAITE: I'm just about to refer to that decision, your Honour.

PN240

THE SENIOR DEPUTY PRESIDENT: Also the later one colloquially known as NUW. So I notice you passed up Atlas Steels but you haven't passed NUW which dealt in detail with the Federal Court's obiter statements.

PN241

MR THISTLETHWAITE: Yes, I haven't passed up that particular decision although I am aware of it. Of course the Federal Court's decision is the subject of I understand an application before the High Court in relation to the bargaining agents fees here as well. So it's fair to say that I think in terms of the authority that the relevant construction of that particular section is still up in the air.

PN242

THE SENIOR DEPUTY PRESIDENT: It has been a matter of lively debate.

PN243

MR THISTLETHWAITE: Yes, it certainly has. Now, just in relation to the Atlas Steels decision of course the Full Bench of the Commission disagreed with the construction of section 170LI detailed in Merkel Js decision, and in many respects the comments in obiter by the Full Court in the second authority that I referred you to.

PN244

I just wish to draw the Commission's attention to paragraph 20 at page 7 of the Atlas Steels decision where the Full Bench is discussing this particular section. Paragraph 20 reads:

PN245

We see a number of difficulties with this construction of the section ...(reads)... the submissions.

PN246

So the Commission is quite clear in terms of their construction of this particular section, but I do wish to point out to the Commission that importantly at paragraph 23 over the page at page 8 that the Full Bench makes a number of important points in relation to incidental and ancillary matters and that paragraph reads:

PN247

For all these reasons, we do not accept the proposition that section 170LI should be construed to permit an application ...(reads)... or administrative in character.

PN248

So as I pointed out earlier, your Honour - - -

PN249

THE SENIOR DEPUTY PRESIDENT: Then the reference for that is to Merkel Js decision.

PN250

MR THISTLETHWAITE: That's correct, yes. So in summation in terms of the authority, it's fair to say that a true construction of this particular section is still somewhat of a controversy but what is clear and has been stated in all three of those decisions is that matters which are ancillary or incidental to those which do pertain to the relationship quite clearly do meet the requisite conditions under the act and are capable of certification.

PN251

Now, it's our principal submission that these two particular clauses, clauses 22 and 23, do meet the requisite relationship but if your Honour is so minded to find that they don't, we say at least in the alternative that they are incidental and ancillary, in particular the clause relating to union representatives and shop stewards which in effect is really a machinery clause and talks about the processes which union officials and shop stewards should follow when they do enter the site.

PN252

THE SENIOR DEPUTY PRESIDENT: Just before you get onto the machinery provisions, can I take you to paragraph 36 of Atlas Steels because I think that's probably the - no, rather, have a look at the last two sentences.

PN253

MR THISTLETHWAITE: Of paragraph 36, your Honour?

PN254

THE SENIOR DEPUTY PRESIDENT: Yes:

PN255

In dealing with the union fees course, we noted that the clause operates upon and alters the employers obligation to pay wages ...(reads)... pertaining to the relationship.

PN256

Now, what they're saying there, I take it is that they're applying the process to the union notification clause that they applied to the payroll deductions clause, namely, whether the clause in question adjusts or operates upon and alters another obligation elsewhere established in the agreement. So do you say that there is some other obligation that is modified or operated upon or altered by either of these two clauses or is it your submission - put it this way. I take it that you're saying first of all that both clauses pertain to the requisite relationship - - -

PN257

MR THISTLETHWAITE: Primarily, yes.

PN258

THE SENIOR DEPUTY PRESIDENT: - - - and specifically looking at the employee and affecting employees as such. Employees as employees rather employees as union members or contractors or non employees, whatever you like to think about it. So first of all, I hear you saying that the clauses pertain to the requisite relationships set out in LI in a direct way, but if there was to be doubt about that, that secondly, maybe, that each of these clauses operates upon another clause - - -

PN259

MR THISTLETHWAITE: That's correct.

PN260

THE SENIOR DEPUTY PRESIDENT: - - - elsewhere in the agreement, such that applying the Atlas Steels methodology or Atlas Steels principle, it could still be pertained to the requisite relationship.

PN261

MR THISTLETHWAITE: That's correct.

PN262

THE SENIOR DEPUTY PRESIDENT: Thirdly, you're about to move onto, even if the clauses were to fall at both of those hurdles, then they could still pertain by being machinery or administrative in character?

PN263

MR THISTLETHWAITE: That's correct, yes, and not only modify certain conditions within the agreement, but certainly modify conditions and prescriptions contained within the act. In particular, the union right of entry clause within the act. I think it's 295 or 298.

PN264

THE SENIOR DEPUTY PRESIDENT: 285.

PN265

MR THISTLETHWAITE: I'm sorry, your Honour, which prescribes the manner in which a union can approach a particular employer and employees employed at that particular establishment who are eligible to be members of that particular union and the processes in relation to notice and what can be done when the union official enters the particular site.

PN266

This union representation clause certainly modifies that approach and it sets further bounds and restrictions on the union official when he does enter the site and what can be done and what can't be done. So in many respects, it's a clause which purports to the relationship between the employer and employees and it sets the grounds for harmonious industrial relations at the site and the way in which the union official must operate and who he can see and what he can do when he enters the site.

PN267

We say that that's also consistent with another object of the act and if your Honour will just bear with me a moment, I'll just find it. It's section 3 subsection (3) providing a framework of rights and responsibilities for employers and employees and their organisation which supports the fair and effective agreement making and ensures that they abide by awards and agreements applying to them. We say that that is something which this particular provision supports.

PN268

Also, enabling the Commission to prevent and settle industrial disputes as far as possible by conciliation where appropriate within specified limits by arbitration and that goes to the operation of the disputes procedure within the agreement. It's recognised that the union has a role in relation to settling disputes on the site and the particular union representation clause is one which we say is ancillary or operates in conjunction with that particular clause in that it sets the bounds for which the union can operate when it's on the site and in that effect - - -

PN269

THE SENIOR DEPUTY PRESIDENT: So in terms of the principle articulated in Atlas Steels, you're not saying that the second paragraph of clause 22 operates upon or alters any other obligation established in the agreement. Rather, you're saying it's a machinery provision?

PN270

MR THISTLETHWAITE: Yes, and it's incidental to the relationship as well, we say. It's a fact that Unilever employs employees, some of whom may or may not be members of the union and by natural right of being members of the union, they do have a right of access to union officials. That's recognised under the act. It's recognised in boundless authorities and, of course, in enterprise agreements which are regularly certified by this Commission. In that respect, we say that setting limits on how the union official is to operate on the site is incidental to that particular relationship.

PN271

THE SENIOR DEPUTY PRESIDENT: It would appear from what's already been said by Mr Howard this morning that this clause does no more in setting limits in relation to entry than the normal operation of the site. What do you say about that?

PN272

MR THISTLETHWAITE: I would take a different approach your Honour in that if the clause didn't exist it may be construed that there's an ability for the particular union organiser to walk around the site and speak to whomever he wishes.

PN273

THE SENIOR DEPUTY PRESIDENT: Well, if it didn't exist presumably it would be the sections 285 of the Act that would apply.

PN274

MR THISTLETHWAITE: Yes.

PN275

THE SENIOR DEPUTY PRESIDENT: And arguably you can't have anything in an agreement anyway that was contrary to the Act but if it didn't exist 285 would click into operation wouldn't it?

PN276

MR THISTLETHWAITE: We say that this clause refines 285 in that 285 relates to employees who are eligible to be members of the union. Now, without proper knowledge I would anticipate that that would mean everyone that works on the site covered by this particular agreement, whereas this clause refines that to say that if they are entering the site on legitimate union business that we wish to restrict it for access to union members and to delegates. The purpose of that is to continue to set the bounds, as I stated earlier, but also to promote harmonious industrial relations on the site.

PN277

THE SENIOR DEPUTY PRESIDENT: Now, in the proceedings before Deputy President Ives, it was conceded that wording such as we have here would actually be a problem. As I said, looking at paragraph 75, the advocate said we'd have difficulties sustaining the equivalent argument because it would be limited to a class of employees embedded in the union employee relationship not the employer/employee relationship. In other words, there the advocate is conceding that a clause with wording such as we have here actually creates a problem.

PN278

MR THISTLETHWAITE: Yes, well, with respect to the advocate I disagree, and I reiterate my earlier submission that in our view such clauses are incidental to and are thereby permissible despite the fact that ostensibly they may be restricting to a class of employees. Essentially, it's machinery in nature and the balance of promoting good industrial relation outweighs any queries that the Commission may have in relation to restricting the class of employees.

PN279

I think it's fair to say that in many respects anyway when a union official goes to the site he or she doesn't provide services to persons who aren't members of the union, that's pretty much an accepted fact. So this clause simply codifies that and ensures that there is a process of good industrial relations when the particular union official goes on to the site and that is ancillary to and a machinery type provision in relation to the relationship

PN280

THE SENIOR DEPUTY PRESIDENT: And that characterisation, isn't that saying that it's a clause about the relationship between the employer as such and the employees as union members, not rather as employees, or is it a clause about the relationship between the employer and the union or is it a clause about the relationship between the union and employees as union members. I might have complicated the picture too much there but on the plain wording of this clause isn't it a clause about the relationship with employees as union members rather than employees as employees as the High Court set out the test.

PN281

MR THISTLETHWAITE: I believe, your Honour, it's a clause certainly about the union and the employer. But it also is a clause about the union and employees and it refines it in the respect that it deals with a procedure that a union official must abide by when he enters the site, and in that respect it's ancillary to and incidental to that relationship in that it refines that relationship.

PN282

THE SENIOR DEPUTY PRESIDENT: But on the basis of what Mr Howard said this morning the process here is no different to the process if anyone comes to the site, it's the same process that I would go through if I went to the site.

PN283

MR THISTLETHWAITE: Yes, that may well be the case, your Honour, and I don't wish to delve into the intent of the parties. But I can only guess that the reason that union membership is specified in this particular clause is, as I pointed out earlier, so that the employer has a right to set some bounds on the work that the union official can do when they enter the site.

PN284

THE SENIOR DEPUTY PRESIDENT: That's already bounded by a section 285 of the Act, is it not?

PN285

MR THISTLETHWAITE: In my submission 285 goes more to attempts to recruit at a particular site.

PN286

THE SENIOR DEPUTY PRESIDENT: It talks about interviewing.

PN287

MR THISTLETHWAITE: Discussions and interviews with employees but principally to right of entry provision. I think it's fair to say that in terms of proceeding before the Commission this particular section comes up as an issue when there is dispute about right of entry and allowing a union official on to what's called and can ultimately be seen as a Greenfields site or a site where there is no particular union members.

PN288

THE SENIOR DEPUTY PRESIDENT: How do you deal in this context with the Moranbah decision of the Commission and I think it was one that I referred you to.

PN289

MR THISTLETHWAITE: Is that the NUW decision?

PN290

THE SENIOR DEPUTY PRESIDENT: No, no it's Moranbah North Coal Management Pty Limited v CFMEU. It's print T4803.

PN291

MR THISTLETHWAITE: I have a copy of it here, your Honour, and I'm sorry I'm not aware of this particular decision.

PN292

THE SENIOR DEPUTY PRESIDENT: You see in paragraphs 24 through to 27 they go through a discussion about whether right of entry for union officials can be a matter pertaining to the relationship between employers as such and employees as such. Now, that's a discussion in the context of the statutory definition in section 4 of industrial disputes but the conclusion of the bench is pretty straightforward. At paragraph 27 they say:

PN293

It's apparent that a demand by a registered organisation or an employer in relation to the operation of any of those ...(reads)... within the statutory definition.

PN294

They say that because on the analysis it's a matter about the relationship between the employer as such and the - sorry, that's not quite the right way to characterise it - but the focus is more about other relationships and at paragraph 26 they go through the analysis and say:

PN295

That the matters dealt with in section 285 are all matters which are extraneous to the relationship between employees as such and employers as such.

PN296

You know, they characterise the relationship as being different to that direct employer to employee as employee as opposed to as union member or in any other capacity.

PN297

MR THISTLETHWAITE: Well, without having read the authority I don't know if the bench went into this particular point. But I can only say that I believe that the section 285 appears in that part of the Act which relates to conciliation and arbitration, not in terms of the constitutional power, not the power relating to corporations as the unfair dismissal and the certified agreement provisions relate. So in that respect we would say that that's evidence that certainly does relate to the relationship between the employer and the employee and something that has been part of the Act and the Industrial Relations powers and part of the Act for many many years.

PN298

Secondly, we say that as I pointed earlier before, on face value it may not seem ostensibly that that particular provision relates to that relationship but we'd say it can be characterised as one that is incidental to the relationship and therefore should fall within the boundary of that particular definition.

PN299

THE SENIOR DEPUTY PRESIDENT: I'm conscious of your competing limits so I won't interrupt you any more.

PN300

MR THISTLETHWAITE: Thank you very much, your Honour. We say that clause 22 is similar to a number of clauses which form part of agreements which have been certified by this Commission. In our submission, the clause fits neatly within the objects of the act relating to certified agreements and agreement making between the parties. Also, in relation to that object relating to harmonious industrial relations.

PN301

I also re-enforce the fact that in the Electrolux case, Merkel J found that a union claim relating to similar provisions as would probably eventuate in an agreement like this or specifically relating to delegates and shop stewards was about matters pertaining to the relationship. That was found by his Honour in that decision. That wasn't in issue before the Full Court and I certainly don't think it was discussed in the Atlas Steels cases.

PN302

THE SENIOR DEPUTY PRESIDENT: I make a claim that I've got no concern with the first paragraph of 22 which deals with delegates.

PN303

MR THISTLETHWAITE: Yes, I understand. We would characterise the rest of the clause similarly to the first part of the clause, your Honour. In that respect, I, of course, respectfully submit that your Honour is obliged to follow that particular decision in determining this matter.

PN304

THE SENIOR DEPUTY PRESIDENT: Which particular decision?

PN305

MR THISTLETHWAITE: The characterisation of that particular clause by his Honour Justice Merkel in the original Electrolux decision. In relation to clause 23 - - -

PN306

THE SENIOR DEPUTY PRESIDENT: I'm fascinated by your analogy to a contracting party demonstrating a current relevant insurance policy.

PN307

MR THISTLETHWAITE: Yes.

PN308

THE SENIOR DEPUTY PRESIDENT: What do you mean by that?

PN309

MR THISTLETHWAITE: Well, often in commercial contracts, your Honour, a party is required to demonstrate that they have a relevant insurance policy, in particular in relation to public liability if, for instance, they may wish to hire a premises for which they're holding an event. They certainly have to demonstrate to the party with whom they're contracting that they have public liability insurance.

PN310

THE SENIOR DEPUTY PRESIDENT: So what's the analogy here? What's the insurance policy here?

PN311

MR THISTLETHWAITE: The particular clause 23, of course, creates a requirement of a contractor to have an EBA with the relevant unions and I note for the Commission that it doesn't say certified agreement, it just says EBA which could for all intents and purposes means an unregistered agreement or an agreement that may be registered with one of the State Industrial Commissions, but it basically ensures that there is a contract concerning wages and conditions between a contracting party and their employees and it's about ensuring - assuring community standards - - -

PN312

THE SENIOR DEPUTY PRESIDENT: Well, it doesn't necessarily ensure it's about wages and conditions, does it, as one of the decisions you've already referred me to this morning says you can get agreements covering only one or two matters. Equally you can get omnibus agreements.

PN313

MR THISTLETHWAITE: Yes.

PN314

THE SENIOR DEPUTY PRESIDENT: So it doesn't necessarily follow.

PN315

MR THISTLETHWAITE: No, it doesn't, but we would say by implication it does follow that certainly most unions would expect that if there was an agreement with the company that it would detail wages and conditions as fully as possible so although the words don't state ostensibly that it must cover certain conditions, we would say by implication that that is the intent of the particular clause.

PN316

THE SENIOR DEPUTY PRESIDENT: I'm just thinking, I've actually got an agreement for certification at the moment which covers only what is to happen if a particular site closes and what is to happen in relation to redundancy, but nevertheless, I understand your submission.

PN317

MR THISTLETHWAITE: Yes. I just wish to make one final point, your Honour, and I reiterated this earlier and that is in the Clout Engineering certified agreement, again at clause 13 of that particular agreement there is a very similar clause to this particular provision the subject of these proceedings and his Honour Justice Munro did certify that agreement and it didn't even rate a mention that particular clause in his Honour's subsequent decision in relation to promotion of union membership on the site.

PN318

They're our submissions, if it pleases, unless your Honour has any other questions.

PN319

THE SENIOR DEPUTY PRESIDENT: Thank you, you've addressed the issues and I'll let you go to your other matter.

PN320

MR THISTLETHWAITE: Yes, if I may be excused, that would be very much appreciated, your Honour. I'm sorry.

PN321

THE SENIOR DEPUTY PRESIDENT: I hope you make it.

PN322

MR THISTLETHWAITE: Thank you.

PN323

THE SENIOR DEPUTY PRESIDENT: So Mr Neilson?

PN324

MR NEILSON: Your Honour, the AMWU submitted what we would like to think were quite detailed submissions in this matter comprising some 23 pages and unless your Honour has any specific questions, I won't go into great detail except to say that Mr Thistlethwaite has neatly surmised a lot of the submission that the AMWU made with respect to, for instance, the various objects of the act and the interpretation of the Electrolux case which we say the Commission should have due regard to in the decision of Merkel J.

PN325

THE SENIOR DEPUTY PRESIDENT: What do you say in response to the question I directed to Mr Thistlethwaite that those issues had been dealt with in Atlas Steels and NUW?

PN326

MR NEILSON: Yes, your Honour, they have been dealt with in Atlas Steels as you make reference to and Mr Thistlethwaite certainly made reference to Atlas Steels when he said and I'll just draw your Honour's attention to it again, that the matters may contain provisions which although not of themselves are about matters which pertain, are nevertheless incidental matters or machinery or administrative.

PN327

We would certainly support that contention and we've dealt with that in our submission, your Honour, and I'll just find the exact location. I think we've dealt with it at page 4 of our submission where we've said that the shop steward rights and union right of entry clause as contained in the proposed agreement are substantially different to the union notice clauses dealt with in the Atlas Steels decision and the Full Bench's decision in PR926554. In that there is a direct benefit to the employee, we would say, in having the shop stewards able to operate effectively and by having their representatives able to access their workplace, your Honour.

PN328

Your Honour has indicated this morning that you don't have any issue with paragraph 1 and it's only in relation to paragraph 2 that your Honour has some concern. Your Honour, obviously we rely in our submissions and we pointed that out, a decision of Deputy President Ives and your Honour has made reference to paragraph 75 this morning where Mr Lyons - - -

PN329

THE SENIOR DEPUTY PRESIDENT: Yes, how do you respond on that?

PN330

MR NEILSON: Your Honour, I think if one could refer perhaps to paragraphs 76 of the Deputy President's decision, he makes reference to the agreement being a section 170LJ agreement which, of course, this agreement is and he seems to make some comment in relation to interpreting this particular clause in light of it being a section 170LJ agreement.

PN331

THE SENIOR DEPUTY PRESIDENT: Yes, we're hamstrung a bit, aren't we in that we don't have the submissions that were obviously in those proceedings?

PN332

MR NEILSON: Yes, your Honour, and I guess the inclusion I'm trying to envisage the Deputy President was perhaps trying to make is that clauses of the type as proposed in section 170LJ agreements are incidental due to the fact that a section 170LJ agreement, as you know, is made between an employer and a union which is registered for the purposes of the act and the particular clause that we've made reference to that's in contention here today, paragraph 2, we would say are incidental in light of the Atlas Steels decision in light of the fact that this is a section 170LJ agreement and not a section 170LK for instance.

PN333

THE SENIOR DEPUTY PRESIDENT: So you're not saying that applying the Atlas Steels principle they operate upon or alter some other obligation in the agreement?

PN334

MR NEILSON: No, I don't think that we can with respect to clause 22. I think Mr Thistlethwaite made that point in response to your Honour's questions.

PN335

THE SENIOR DEPUTY PRESIDENT: But rather you're relying on the fact that they're incidental in that they're machinery or administrative in nature?

PN336

MR NEILSON: Yes, your Honour. I think if you read clause 22 as a whole and not separating it into paragraph 1 and paragraph 2, it reads on my interpretation that the employer endorses the rights obviously of employees to have proper representation. So it's saying the employees have the right to have proper representation. If they choose to be a member of the union, then this is the clause that will apply to the union coming onto site.

PN337

So it's not saying, for instance, that all employees would be union members or that it only applies to unions. It's saying if the employees choose to be a member of the union, then this is the process that will be followed. So it's effectively between the employer and employee we would say. It's not between the employer and the union. It's saying as an employee, if you decide to become a union member, then this is how the union will be able to access the site for discussions with you and that's an agreement that has been reached between the employees with, of course, the union as a negotiating party and the employer.

PN338

THE SENIOR DEPUTY PRESIDENT: But didn't the High Court make it clear in - I gather there are two cases on this. There's Portus and Alcan, that to pertain to the relationship, the matter had to pertain to the relationship between the employer as such and the employee as such, not the employer and the employee as a union member, but the focus of this clause seems to be on the employee as union member. In other words, it's the right of entry for the purpose of conversing with or interviewing union members on genuine union business.

PN339

Now, the High Court has spelt out that it's the relationship with employees as such rather than employees as union members and I know that you say that this is machinery or administrative in nature but where a machinery or administrative clause is in direct conflict with the primary relationship it's meant to be supporting, doesn't that create a problem for you?

PN340

MR NEILSON: On that construction it probably does create a problem for us, your Honour, but once again, we would reiterate that we believe that the clause as a whole is obviously ancillary and administrative, if you like, to the union's representation. Certainly decisions of this Commission have given effect to union right of entry before and the AMWU has made reference to a number of precedents whereby the Commission has given effect to union right of entry clauses.

PN341

THE SENIOR DEPUTY PRESIDENT: Indeed, you've quoted clauses that I've certified.

PN342

MR NEILSON: Yes. Mr Kentish who prepared the submissions for the union has certainly made reference to a number of clauses that the Commission as presently constituted has found favour with and certified and one of those being AMWU and Park Tech Engineering where I'll just draw your Honour's attention to page 8 of our submission where it's said that in that particular agreement it was said that:

PN343

A duly accredited union official shall have a right of entry at any time to investigate a suspected breach of the agreement ...(reads)... prior approval.

PN344

Now, that's merely reflecting section 285B and C of the act as your Honour would no doubt be aware.

PN345

THE SENIOR DEPUTY PRESIDENT: But that's different to this clause, isn't it?

PN346

MR NEILSON: It is different to this clause because your Honour, as I just pointed out, it merely reflects 285B and C and that there is provision for notice. It is ambiguous on what notice must be given and one could have an argument about whether 24 hours notice has to be given or whether just a phone call has to be given but that's certainly a matter of construction.

PN347

We've also made reference to the Oldfields Pty Limited, Farrar Road, Campbelltown, AMWU Certified Agreement which is also contained on page 8 and page 9 is the - I won't pretend to try and pronounce that, the Huhtamaki, spelt H-u-h-t-a-m-a-k-i, Australia Limited Certified Agreement. Then there's the Schering, spelt S-c-h-e-r-i-n-g, Plough Engineering Employees Certified Agreement and it's not just your Honour who has certified union right of entry clauses in the past. It's been various other members of the Commission, Senior Deputy President Acton, Justice Munro, which we've made reference to in our submissions before your Honour this morning.

PN348

THE SENIOR DEPUTY PRESIDENT: Yes, but now we're focussing on this clause of this agreement.

PN349

MR NEILSON: Yes, now obviously we're focussing on this clause but what we say is that by adopting a narrower interpretation of section 170LI, the Commission and Mr Thistlethwaite made reference to the principles of the act and one of those principles is, of course, contained at 3E and provide rights and responsibilities and one of the principles, of course, is to prevent and settle disputes.

PN350

Now, we would say if the Commission adopts a narrower approach of section 170LI, then the Commission will not prevent or settle an industrial dispute. We would say at times it could potentially stand in the way of settling those disputes. So I guess it's a balance that the Commission has to make as to how to satisfy the requirements of section 170LI at the same time as satisfying its obligations to prevent the settling of industrial disputes which certified agreements do do.

PN351

Now, obviously, your Honour, we've made reference to that, if this agreement is not certified today, then obviously it will have to go back to the employees for a revote and a renegotiation and that may give rise to some form of industrial dispute. I can't speculate on that. Mr Howard has proposed an amendment which we've dealt with in our conclusion. From the AWUs point of view, we don't see how that amendment can be made without our members at least being given the opportunity to review in line with the approval requirements of the act and being given the opportunity to vote upon that.

PN352

THE SENIOR DEPUTY PRESIDENT: Are you saying that in relation to the amendments suggested for clause 22?

PN353

MR NEILSON: Yes, I am, your Honour. I don't have the exact amendment in front of me but yes, I am, your Honour.

PN354

THE SENIOR DEPUTY PRESIDENT: So your comment stands in relation to each clause, not just both amendments?

PN355

MR NEILSON: Yes.

PN356

THE SENIOR DEPUTY PRESIDENT: Sorry, that's not putting it very well, but you believe that neither clause could be amended in the way of proposed by the company without it going back through the process?

PN357

MR NEILSON: Your Honour, it comes back to the Atlas Steels decision where they've made reference to a substantive amendment. It's not in my interest today to have your Honour advocate that we go back to the site for a renegotiation of this agreement. I'm instructed to come here today to try and get the agreement certified but unfortunately, your Honour, they do - - -

PN358

THE SENIOR DEPUTY PRESIDENT: Are there major problems that you see in that if you were to need to go back?

PN359

MR NEILSON: Your Honour, I'm instructed that the company would be able to better comment upon that submission but certainly if this agreement is sent back to the site, well, there may be other issues that couldn't be reached in agreement before that the employees may well want to renegotiate upon again given the opportunity.

PN360

Your Honour would understand with agreements, sometimes people compromise and when they wake up in the morning, they feel like well, we won't push that issue today. They may wake up tomorrow and want to push that again. I can't comment on that. I think Mr Howard - we were having an off the record discussion - may want to make some comments about the potential for renegotiation but I'll leave that to him.

PN361

But certainly, if I could just comment upon the amendments which have been proposed and I don't want to appear that I'm obstructing the process but they do appear to be substantive amendments within the vision, I suppose, of the Atlas Steels decision and certainly with the AMWU not consenting to those amendments being incorporated without taking those amendments back to our members and getting them to vote upon them for these proceedings. So that's the position of the AMWU in relation to the proposed amendments unfortunately that it is but we certainly have an obligation to our members to make sure that they are aware of an agreement that will bind them and aware of its consequences and its operation. Your Honour, if I could just continue on with our comments in relation to section 170LI.

PN362

So your Honour we would say is faced with a proposition of trying to obviously satisfy the requirements of 170LI and balancing the objects of the Act which Mr Thistlethwaite, in our submission, on 8 July have dealt with. We would say that you should adopt a favourable approach with the clauses as before the Commission recognising that the role of the Commission as enunciated by the objects of the Act, and we would certainly submit that the clauses are administrative and similar in nature as espoused by Atlas Steels.

PN363

THE SENIOR DEPUTY PRESIDENT: So far you've been addressing yourself to clause 22, you said clauses.

PN364

MR NEILSON: Yes, I meant clause 22 and 23 as a whole, but I will turn to clause 23, your Honour.

PN365

THE SENIOR DEPUTY PRESIDENT: The point I had in raising that was, do you say that clause 23 is also machinery or administrative in nature.

PN366

MR NEILSON: Your Honour, I guess the point that needs to be made, and I don't know if it was made earlier, was that clause 23 on my reading of it does not seek to impose an obligation upon - - -

PN367

THE SENIOR DEPUTY PRESIDENT: I suppose my basic question about 23 is how is this a clause within the scope of the relationship as it's detailed in clause 170LI.

PN368

MR NEILSON: Your Honour, it concerns the employees have expressed a concern to the new employer obviously that they are concerned about the amount of casuals that are being used on site and they are also concerned how those casuals are being paid and remunerated for their services on site. They believe that, or they believe that the increase use in casual and contract labour is undermining their employment status, and undermining their employment relationship with the employer, where it may get to the stage that contract labour may replace their employment services with the employer.

PN369

So what they've sought to do by incorporating a clause like this, as Mr Howard has alluded to, has tried to ensure that the terms, wages and conditions that apply to the contract labour that is coming in, is somehow regulated is somehow on par with them and it's not clearly expressed in that clause, obviously your Honour. Your Honour made reference to a construction, certainly precedents of this Commission and precedents of the High Court in Codelfa v State Rail Authority, which is the principal case on constructions of contract, and say that if the clause is ambiguous then extrinsic evidence may be adduced and we would say that that clause is ambiguous. Mr Howard, has sought to give some form of extrinsic evidence by way of submissions from the bar table today and we would say that that would assist the Commission interpreting the meaning and intention of that clause.

PN370

THE SENIOR DEPUTY PRESIDENT: Wouldn't you first go to other sections of the agreement to see what they suggest, and if you go to appendix E, appendix E in the reference I already directed you to, well, I didn't direct you, but I've already focussed on this morning 3E appears to make the terms and conditions of contractors in the maintenance area subject to this agreement.

PN371

MR NEILSON: Your Honour, I suppose the questions that would arise from that is how can the company impose obligations on employees of another employer? Again, your Honour, I don't think the agreement and the intention of that clause is to impose obligations on the labour hire firm or on the employees. My reading of it is is that it is simply saying that the employer, being Unilever, will pay to the employees this amount of money.

PN372

So when Unilever enters into contractual negotiations with the labour hire company they are bound by this agreement between their employers and employees to say to the labour hire company we want to engage your services and this is the terms and conditions that we will engage your services.

PN373

So all it is doing, your Honour, is seeking to force Unilever as a party to this agreement in their negotiations with labour hire companies to say, we would like to employ your services on these terms and conditions here's is a copy of our EBA, we pay our employees these rates and when you invoice us we will be paying your employees this particular rate, please work out your quote and provide it to us. It's not seeking to impose obligations on the labour hire firm because quite clearly it can't do that, it's imposing obligations on the employer.

PN374

THE SENIOR DEPUTY PRESIDENT: So how does it then work its way back to clause 23?

PN375

MR NEILSON: Your Honour, clause 23 obviously deals with labour hire agencies. At first instance it's a clause that talks about the employers intention to reduce the need for casual employees, and that's a nice statement to make, and then it says that the manufacturing employees will have an EBA with the AWU and tradesmen will have an EBA with the AMWU or CEPU.

PN376

Your Honour, if I could just seek a point of clarification as to how you're seeking to tie it to clause E or to appendix E, whereby we would say that they clearly relate insofar as that the company has indicated in appendix E that it intends to pay the employees a particular rate as dealt with in the Unilever Certified Agreement and then has indicated that it will have where it engages labour hire employees they will have an EBA with the AMWU, the CEPU or the AWU Greater New South Wales Branch. I don't see it as being necessarily unrelated.

PN377

I believe your Honour is going to the fact that how can you have an EBA with the AMWU, for instance, where it would probably prescribe rates of pay and then have Unilever say in appendix F that it's going to pay these particular rates of pay, so the question that your Honour is trying to have answered.

PN378

THE SENIOR DEPUTY PRESIDENT: Well, I mean, essentially my question is, how does clause 23 pertain to be a relevant relationship in 170LI, and I'm open to any submission you might want to make on it.

PN379

MR NEILSON: Your Honour, we've made the submission, and Mr Thistlethwaite and Mr Howard has made the submission that the employees have concerns about the amount of casuals being used and they wanted to see some form of regulation. They believe that union agreements are the best agreements to have and they believe that if an employer has an agreement with a trade union then it must be seeming okay, or then again what we would say would be excellent, but certainly your Honour - - -

PN380

THE SENIOR DEPUTY PRESIDENT: Presumably only in relation to the AMWU.

PN381

MR NEILSON: And obviously, your Honour, that that was a concern expressed between the employer and employee and that's the agreement reached which has been reflected in clause 23, your Honour. I guess the term, relationship, between the employer and the employees can be interpreted on a very broad basis as to what really is between an employer and an employee.

PN382

We would submit that obviously the Commission should be mindful of the decision in Electrolux and also the Commission has referred us to its Full Bench decision in Atlas Steels and we recognise those decisions. But once again we return to an interpretation of section 170LI and we would urge the Commission not to adopt a narrower interpretation of that particular clause because mindful, if you like, of the Commission's obligations to prevent and settle industrial dispute and to make agreements which reflect a flexibility, if you like, between employer and employee at the workplace.

PN383

Certainly we would submit that this agreement reflects the Act, it meets the requirements in terms of the no disadvantage test and the usual approval requirements and we would say that albeit under a legal interpretation of the section 170LI that clauses 22 and 23 do meet the requisite employer/employee relationship.

PN384

THE SENIOR DEPUTY PRESIDENT: Thank you. Just before you sit down, can I ask a specific question. Let me direct you to page 22 of your submissions. It may actually be 21 of your submissions. It's 22 of the fax I've received. It's the second last page.

PN385

MR NEILSON: Yes, your Honour.

PN386

THE SENIOR DEPUTY PRESIDENT: Indeed, the last sentence of the second last page on the second last page, it says:

PN387

At the very least, such obligations are incidental to the operations of the agreement as a whole.

PN388

Do you see that?

PN389

MR NEILSON: Yes, your Honour.

PN390

THE SENIOR DEPUTY PRESIDENT: Now, my question is, how are those obligations incidental to the operation of the agreement as a whole? Now, having said that, let me give you time to read the context.

PN391

MR NEILSON: Your Honour, the comment is made in relation to obviously a decision that we made reference to earlier in Electrolux where the court obviously went into great detail about 170LI and, for instance, an example being one particular clause that may have been on the borderline they made reference to that the agreement as a whole should not be thrown out.

PN392

Your Honour, I guess in terms of clause 23 in terms of incidental to the operations of the agreement as a whole, then your Honour has made reference to appendix E, but in terms that your Honour has made reference to appendix E, so obviously we would say there's a relationship between clause 23 and appendix E and I think we've made reference to that in our submissions.

PN393

THE SENIOR DEPUTY PRESIDENT: Indeed, your submissions, yes.

PN394

MR NEILSON: Yes, we have made reference to that.

PN395

THE SENIOR DEPUTY PRESIDENT: But that's the only other reference, isn't it?

PN396

MR NEILSON: Your Honour, I believe that is but in terms of union representation, well then certainly the disputes resolution procedure.

PN397

THE SENIOR DEPUTY PRESIDENT: Yes, but that comment is made in relation to clause 23.

PN398

MR NEILSON: In relation to clause 23, yes. Well, then, it would appear that appendix E does appear to be the only other reference to this type of ancillary relationship in the agreement as a whole. I guess, if you like, your Honour, that agreements -

PN399

THE SENIOR DEPUTY PRESIDENT: If it were to be administrative or machinery in nature, now if it's incidental - incidental, ancillary, machinery, administrative in nature, how does that arise where it appears other than appendix 23 which also appears to be a separate document that's been carried over from some prior agreement that is, in fact, the case?

PN400

MR NEILSON: Yes, your Honour, the majority of this particular agreement is coming over from previous certified agreements.

PN401

THE SENIOR DEPUTY PRESIDENT: Sorry, I was referring specifically to appendix E. It appears to be an older document that's been incorporated.

PN402

MR NEILSON: Yes, it was in a previous agreement.

PN403

THE SENIOR DEPUTY PRESIDENT: Yes, sorry. I mean, given that the only other reference appears to be the contractor section in appendix E, what's the administrative or machinery function that 23 is fulfilling?

PN404

MR NEILSON: I guess, your Honour, it complements appendix E so it provides, if you like, an administrative application of appendix E insofar as it's saying that appendix E for instance says that they're to be paid at this particular rate as per the agreement and then clause 23, for instance, says well, they've got to have an EBA with the AMWU or the CEPU or the AWU. So it goes to that particular issue and Mr Howard has referred me to 10A, your Honour, which I think he made reference to earlier which deals with the casual provisions. So it also in terms of 23, the ambulatory statement at the start being intention to reduce the need for casual employees, it's also dealt with in clause 10A.

PN405

So, your Honour, I guess the question needs to be asked, is there need for an entire flavour of particular clauses to be spread throughout the agreement or can they be adequately dealt with in one particular clause or two particular clauses, your Honour?

PN406

THE SENIOR DEPUTY PRESIDENT: Well, again if you refer to the Atlas Steels decision on the second matter that they dealt with, they were unable to see how it related to other elements of the agreement if I remember rightly. I don't have the reference to hand but -

PN407

MR NEILSON: Yes, your Honour, but obviously we would submit that it relates to appendix E and it also relates to clause 10A the casuals provision.

PN408

THE SENIOR DEPUTY PRESIDENT: Well, now, in appendix E, it's only the AMWU and CEPU that are relevant there because it relates to maintenance and limits the references to the AMWU and the CEPU. 23 also has the AWU because it deals with manufacturing employees in addition to trades people.

PN409

MR NEILSON: Yes, your Honour, that's certainly a correct observation. I guess then, your Honour, that in that particular circumstance that clause 23 picks up where appendix E may fall down so once again it provides some form of administrative function of appendix E and is definitely ancillary in nature. I'll leave my submissions at that, your Honour, relying, of course, on our written submissions that were filed in accordance with your directions.

PN410

THE SENIOR DEPUTY PRESIDENT: Thank you very much. Mr Howard, was there something additional you wanted to say?

PN411

MR HOWARD: Yes, your Honour. If the Commission pleases, Mr Neilson made reference to the potential for these issues to be an industrial dispute into the future. The company also, of course, does not particularly want this agreement to go back for a vote again back to the site and just in reference to current matters being dealt with on site, one issue in which I was having discussions with a union official and delegates yesterday morning in fact related to the use of casuals on the site and specifically how it relates to the amount of overtime being made available to permanent employees.

PN412

So there certainly is issues in relation to the use of casuals, certainly from labour hire firms as well so just for the Commission's own reference, these sort of things do come up from time to time on the site. Other than that, your Honour - - -

PN413

THE SENIOR DEPUTY PRESIDENT: Now, if I were to find that a clause relating to contractors didn't meet the requirements of section 170LI, what would be in the clause coming back? Sorry, I perhaps haven't put that very well but I see by your body language you get my drift.

PN414

MR HOWARD: I can't really say, your Honour, as to what the parties may come back with if that particular clause or the agreement in total was refused certification. That would be a matter obviously for the parties to renegotiate if there was to be any renegotiation over terms and conditions or if that negotiation was only over wording and what clauses actually should be incorporated in the agreement to put to the Commission for certification. Other than that, we rely on the written submissions. Thank you, your Honour.

PN415

THE SENIOR DEPUTY PRESIDENT: Gentlemen, you've been most helpful and patient. Thank you very much. I'm going to consider this matter and accordingly reserve a decision. We'll adjourn.

ADJOURNED INDEFINITELY [12.20pm]