AG2003/6544, Transcript of Proceedings [2003] AIRCTrans 3870 (3 September 2003)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER RICHARDS

AG2003/6544

APPLICATION FOR CERTIFICATION OF
GREENFIELDS AGREEMENT

Application under Section 170LL of the Act
by Australian Municipal, Administrative, Clerical
and Services Union and Another for certification of
the Academic and General Staff Pty Ltd
(General Staff in Higher Education) Agreement 2003

BRISBANE

11.01 AM, FRIDAY 8 AUGUST 2003

PN1

THE COMMISSIONER: Good morning, everyone. Please take a seat. If I could take some appearances, thanks.

PN2

MR J. MARTIN: If it please the Commission, my name is Martin. I appear for the ASU.

PN3

MR P. DUNSTAN: If it please the Commission, Dunstan, P., for Academic and General Staff Proprietary Limited.

PN4

THE COMMISSIONER: Thanks, Mr Dunstan. Thanks, Mr Martin. It's your application, isn't it, Mr Martin?

PN5

MR MARTIN: Yes, ironically, Commissioner, it's a greenfields agreement, but I can guarantee there's - - -

PN6

THE COMMISSIONER: The transcript, unfortunately, won't tell the story of what hangs behind our humour in that matter, but nonetheless.

PN7

MR MARTIN: I guarantee there are no employees. I would rely upon the statutory declaration of Michael O'Sullivan for compliance with the relevant legislation, and would respectfully request that the Commission certify the agreement.

PN8

THE COMMISSIONER: Thanks, Mr Martin.

PN9

MR MARTIN: Thank you.

PN10

THE COMMISSIONER: Mr Dunstan.

PN11

MR DUNSTAN: If it please the Commission, the respondent, Academic and General Staff Proprietary Limited, is a constitutional corporation as defined by the Act. The company will, amongst other things, be providing workers to the higher education industry under on-hire arrangements in the very near future. Those workers will be employees of the company for the duration of each placement.

PN12

The agreement before you, if certified, will prescribe the terms and conditions that will apply to the company employees, during each placement, and is the product of in-depth negotiations with the ASU, and attempts to deal with some of the issues currently being raised about the on-hire industry by the union movement.

PN13

This agreement represents a landmark in the on-hire industry, as it is designed to ensure that workers performing the same work at each site, will be subject to the same duties, conditions, rates of pay, rights and privileges, regardless of the method of engagement. The Commission will be aware that the various awards and agreements that apply to clerical and administrative positions in the higher education industry, offer considerably more to employees than the various State clerks' awards that would otherwise apply.

PN14

If certified, this agreement will ensure that the company employees placed by the company with clients in the higher education sector, will have access to those enhancements. The company asserts that the agreement complies with all of their requirements of the Act, and specifically Sections 170LL, LM and LT. The company commends the agreement to the Commission.

PN15

THE COMMISSIONER: Thanks, Mr Dunstan. Mr Dunstan, just on the matter of your statutory declaration, part 1 in paragraph 1.2 - sorry, I correct myself; that's paragraph 1.5. The Act for the purpose is Section 170LB - sorry. The statutory declaration, for the purpose of satisfying the Commission pursuant to Section 170LB of the Act, requires you to specify whether or not the agreement applies to a part of a single business, as defined in 170LB(3) of the Act. On that score, you have ticked "not applicable." I'm just wondering, there's whole and there's single, but I'm not sure how you get to "not applicable."

PN16

MR DUNSTAN: Sorry. Just to explain, sir. It will apply to a part of the business, because the company will be in the business of providing staff to the education sector in general. This particular agreement will only apply to those staff placed in higher education institutions.

PN17

THE COMMISSIONER: All right. So, in effect, you would like me to amend the statutory declaration to reflect the word "single."

PN18

MR DUNSTAN: Thank you.

PN19

THE COMMISSIONER: Good. There are just a number of queries that I have with the agreement, which I'd be grateful for you assistance in. First of all, the dispute procedure in the proposed agreement, or in the agreement that is sought to be certified - I think it's the more accurate way to say it. The agreement is already made. At 10.4 of the agreement, it states:

PN20

Where the Commission determines it has jurisdiction to arbitrate, the Commission may resolve the matter by processes of conciliation and/or arbitration, and the parties agree to be bound by the Commission's resolution of the dispute.

PN21

The issue there for me is that the Commission doesn't have a jurisdiction to arbitrate unless it's been granted one. Now, there's the sort of cart and a horse issue here. The clause again reads:

PN22

Where the Commission determines it has jurisdiction to arbitrate, the Commission may resolve the matter by conciliation or arbitration.

PN23

Now, I think for purposes of the future operation of the clause, you may wish to clarify that the clause actually empowers the Commission to do that work. Clause 10.3 reads:

PN24

Should the disagreement or dispute not be resolved by negotiations, either the employer or the union may refer the matter to the AIRC.

PN25

Now, the effect of referring the matter to the AIRC can be any number of things. The matter will be referred to the AIRC, but once having referred it, what does the Commission therefore do with the matter that's in dispute. You then go on to say at paragraph 10.4 that if the Commission determines that it has jurisdiction to arbitrate, it can then go ahead an arbitrate, but what is in the Commission's mind at the moment is, how would the Commission make such a view - come to such a conclusion about jurisdiction, given the operation of 10.3?

PN26

In order for the Commission to have jurisdiction to arbitrate, you would have to have been granted expressly the power to arbitrate. There is considerable history now of decisions in the Commission in which issues are ventilated through Section 170LW of the Act about whether or not clauses, dispute resolution clauses actually empower the Commission to, in fact, arbitrate. As it currently stands - and I'm indifferent as to whether or not you are empowering the Commission to do one thing or another. It's just a question of clarity for the purposes of the future operation of the clause.

PN27

MR MARTIN: Commissioner, if I could, my understanding of it would be that the parties agree to be bound by - if a matter is referred by a party to the Commission for resolution, then the parties agree to be bound by it, but that's obviously subject to the other rights that they may have by virtue of the Workplace Relations Act.

PN28

Commissioner, I'd respectfully submit that if - the certified agreement can't do anything beyond the scope of the Workplace Relations Act, so I don't know - even if we were trying to confer more powers upon the Commission than we could, it just simply would not operate. That's my understanding - - -

PN29

THE COMMISSIONER: No, it is simply the issue of whether or not the parties have intended to empower the Commission by virtue of private arbitration to determine t he matters that are in dispute. Is that what the parties have done, or would they - - -

PN30

MR MARTIN: I would - it's subject to Section 170LW. That's certainly my reading of that, Commissioner.

PN31

THE COMMISSIONER: About matters about the application of the agreement. Mr Dunstan, is that your reading of the - - -

PN32

MR DUNSTAN: Yes, sir.

PN33

THE COMMISSIONER: - - - the clause? Okay, then we shall move on from that then, and that discussion can remain on transcript on the file if the matter ever comes to be disputed at any stage, but I can assure you on the basis of experience, direct experience, that it often is in certain wordings such as that.

PN34

The Commission has a concern with the operation of a particular aspect of clause 20, headed Union Encouragement, and it is about a very particular issue. Generally, the Commission has taken the view that union encouragement clauses are, in many circumstances where they are an amorphous expression of intention, are not matters in which the Commission necessarily intervenes, and I'm thinking of that decision of his Honour, Senior Deputy President Munro, Munro J, in respect of this matter, but at clause 20.2 the matter has some particularity, which is of concern to the Commission. And that is what it specifies is that:

PN35

At the point of engagement of new employees, Academic and General Staff Proprietary Limited shall identify an existence of a union encouragement clause in this agreement.

PN36

That union encouragement clause, presumably, is the one embodied at clause 20.1 which reads:

PN37

Academic and General Staff Proprietary Limited will take all reasonable steps to encourage employees to be financial members of the union.

PN38

"Will take all reasonable steps to encourage." I'm not certain exactly what the meaning of that is, but I'll come to that shortly. The difficulty that I have is the interaction of that clause with the presentation of that policy, if you like, whatever it may embody specifically, at the point of engagement.

PN39

It is one thing to, I think, to encourage employees to become members, and indeed financial members, of unions at the point of induction, once they've become employees. It's another thing, however, to seek them to so become at the point of where they're being recruited, in essence, or engaged, because the issue in my mind is that they are at a very sensitive point of their decision making about the basis on which they can be employed. And if you have the union encouragement policy regarding whatever all reasonable steps include, being active at the point of the engagement of the employees, where they're being offered a job, then that becomes a very distinct set of circumstances, where the encouragement clause operates.

PN40

If I can put the converse to you, so you can get a sense of it. Of course, it never arises, but - for better or worse - but if an employer was encouraging persons not to become members of a union at the point of engagement, would that be of concern? Well, I suspect it would be of equal concern, because again it is creating a nexus between the prospect of employment and the decision to do what the employer is proposing by way of whatever all reasonable steps are.

PN41

Now, the Act specifically requires at Section 170LU(2A) to consider the effect of such clauses in relation to Part XA of the Act, which suggests to me again that - well, it consolidates my concerns over whether or not this particular sub-clause in the agreement would allow me to certify, pursuant to Section 170LU(2A) of the Act.

PN42

Now, having said that, of course, a matter arising in the Commission's mind under Section 170LT and Section 170LU of the Act are capable of being - how should I say - for want of a better term, rescued by way of undertakings pursuant to Section 170LV of the Act, and LV(1) of the Act in particular. Now, I should, first of all, ask the parties whether they are of the view that this is a matter that they would like to address by - to have the Commission address by such undertakings?

PN43

MR MARTIN: Yes, Commissioner, I was - if you hadn't got there yourself, that was the suggestion that I was going to make. Yes, we'd - I've just confirmed that we're happy to give whatever undertaking you consider necessary in terms of Section 170LV in order to enable the agreement to be certified.

PN44

THE COMMISSIONER: Thank you, Mr Martin. And Mr Dunstan, that is - - -

PN45

MR DUNSTAN: I concur.

PN46

THE COMMISSIONER: Good. Well, by way of the decision - and there have been some recent decisions in respect of this particular matter, and I'll draw on those for the purposes of defining a number of undertakings that would allow - which would satisfy me for the purposes of approving the agreement today. On that basis, then, I have no other queries about the agreement itself. It is a new business and it clearly has no employees: two issues which we have just ventilated, or are in the process of ventilating, aren't we, Mr Martin?

PN47

MR MARTIN: Yes, Commissioner.

PN48

THE COMMISSIONER: But not through you currently.

PN49

MR MARTIN: No.

PN50

THE COMMISSIONER: For better or worse. So on that basis, then, I am satisfied that the requirements of the Act have been met. The Commission has expressed its concern in respect of the operation of Section 170LU(2A) of the Act in relation to clause 20 of the agreement headed, "Union Encouragement", and with the concurrence of the parties, it is agreed that the matter will be dealt with by way of undertakings that will be defined in the decision that will follow shortly in relation to this matter.

PN51

I therefore determine that this agreement is certified, and certified to operate for a period from today's date through to 1 August 2006. On that basis we're adjourned, unless there's anything else? Well, we're adjourned. Thanks very much, everyone.

ADJOURNED INDEFINITELY [11.15am]