C2003/4989, Transcript of Proceedings [2003] AIRCTrans 4098 (17 September 2003)

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TRANSCRIPT OF PROCEEDINGS


O/N 10539

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER TOLLEY

C2003/4989

SHOP, DISTRIBUTIVE AND ALLIED
EMPLOYEES ASSOCIATION

and

ADVANCED HAIR STUDIO

Application under section 170LW of the Act
for settlement of dispute re the employer's
intention to compulsory transfer a member
from her current location of employment to
another location

MELBOURNE

10.05 AM, MONDAY, 1 SEPTEMBER 2003

Continued from 11.08.03

PN110

THE COMMISSIONER: Are there any changes in the appearances? No. The Commission has been in receipt of correspondence from Blake Dawson Waldron. Have you seen that, Mr Ryan?

PN111

MR RYAN: Yes, I have, Commissioner.

PN112

THE COMMISSIONER: What do you say about it?

PN113

MR RYAN: I am not certain exactly what - is this correspondence dated on - because there has been lots of correspondence between ourselves and - - -

PN114

THE COMMISSIONER: Well, dated 26 August.

PN115

MR RYAN: Yes.

PN116

THE COMMISSIONER: Well, what do you say about the point that Mr Amendola, on behalf of his client, says the Commission is functus officio.

PN117

MR RYAN: It is not in our submission. Our submission, as I made it on the last occasion, is that you have clearly got jurisdiction in relation to this matter pursuant to the grievance procedure clause of the agreement.

PN118

THE COMMISSIONER: Well, how has the Commission got jurisdiction to deal with the matter that is clearly dealt with in an EBA, aka the transfer of employees interstate?

PN119

MR RYAN: If there is a grievance in relation to the operation of the agreement that is the purpose of the dispute resolution procedure.

PN120

THE COMMISSIONER: But it is not for the Commission to overrule certified agreements. The Commission has got no power. And if there is a procedure in the certified agreement, whether I like it or you like it, is immaterial at the end of the day. If it is in the certified agreement and a party is following that procedure, the Commission has got no legal right to interfere. It is a matter for the Federal Court, isn't it? And please don't tell me about my general powers, the current government removed most of them.

PN121

MR RYAN: Yes.

PN122

THE COMMISSIONER: I am not saying I am not without sympathy for the applications before the Commissioner.

PN123

MR RYAN: Yes.

PN124

THE COMMISSIONER: However, the Commission will not breach the Act.

PN125

MR RYAN: Yes. Setting aside an argument about general powers or your ability under that, the other argument we would put is the Commission will have jurisdiction in relation to this particular matter on the basis that if the agreement is to be read, as Mr Amendola says it is to be read, in other words that the agreement does permit the employer to transfer employees interstate.

PN126

THE COMMISSIONER: Well, the referred to clause very clearly says that.

PN127

MR RYAN: Yes. Yes. If that is how it is to be read, then the agreement is only a valid agreement if at the time the agreement was made the employees understood that that was how the agreement was to be read. Because if the agreement is to be read that way, then what the agreement is doing to the employees is to say, "Whilst we have an agreement for the State of Victoria, if we take you out of the State of Victoria we can remove you from the jurisdiction of the Commission," which is one aspect of it because - - -

PN128

THE COMMISSIONER: That also subjects them - both sides to the jurisdiction of, in this case, the New South Wales Commission, which has got a wider jurisdiction than this Commission.

PN129

MR RYAN: Yes, but what it does - - -

PN130

THE COMMISSIONER: Within that state.

PN131

MR RYAN: - - - no, no, but more importantly, that would disadvantage an employee who is in Victoria because they wouldn't be able to access another jurisdiction unless they actually moved. In other words, if they didn't actually move then they would have been denied the jurisdiction of this Commission. What would have been necessary at the point of time that the agreement was certified would have been for the actual terms of the agreement to have been clearly explained to the employees.

PN132

THE COMMISSIONER: Are you saying that wasn't done?

PN133

MR RYAN: It certainly wasn't done.

PN134

THE COMMISSIONER: Well, where is your evidence?

PN135

MR RYAN: I tender a copy of the statutory - the application and statutory declaration. This is from our own records.

PN136

THE COMMISSIONER: Good.

EXHIBIT #A1 APPLICATION AND STATUTORY DECLARATION

PN137

MR RYAN: Yes. This is off the copy of the documentation that we hold which means it is not - this is not the sworn statutory declaration that would actually be on the Commission's files, however it is the document. The Association - you will notice that I was the officer of the Association who made the application for certification and I was also the officer of the Association who made the statutory declaration in relation to this agreement for the Commission's purposes. The statutory declaration clearly requires the parties to identify disadvantages that would flow, and this is the requirements of clause 7.3 of the statutory declaration, and also identify the advantages that flow from the agreement, which is the requirements of paragraph 7.4 of the statutory declaration.

PN138

In the statutory declaration the only disadvantages that were identified in relation to the employees was in relation to clause 9.11 about lunch breaks and rest breaks, allowances in relation to a first aid meal allowance being incorporated into the base rate and clause 15.3, Christmas holiday loading incorporated into the base rate of pay. The statutory declaration by both the Association and the company were in identical terms except that, sworn by different persons of course, but the contents of the statutory declarations were the same.

PN139

The explanatory material that was handed out in support of this agreement only related to those matters which are in the statutory declaration. In other words, no employee of Advanced Hair Studios was advised at any point of time that the agreement could or would or had an actual operation of the type as proposed and formulated by Mr Amendola. No employee knew at any time when they were voting on this agreement that if they voted on the agreement, the agreement would have the effect that has been contended for by Mr Amendola.

PN140

THE COMMISSIONER: Are you saying the employees weren't given a copy of the agreement before it was voted on?

PN141

MR RYAN: They were given a copy of the agreement, but it is not sufficient to give them a copy of the agreement, you have to explain the terms of the agreement to the employees. And the case law is relatively clear on this. It is not what might happen or what is likely to happen, but it is what will actually happen in terms of the legal operation of the agreement. This issue about interstate transfers has only come up in the context of the particular dispute we have in relation to Kylie Harris. It was never an issue that was ever put to the workers.

PN142

In other words, they could not have formed the requisite genuine agreement or they could not have genuinely agreed if they did not know what they were agreeing to as the actual terms and operation of the agreement were not explained to the employees either by the association or by the employer, then the agreement could not have validly be made by the Commission. If it could not have validly been made by the Commission, it doesn't exist, you then at least have the residual, or probably not residual, but the even wider jurisdictional power under the award which does specifically bind the employer, which is the Hairdressing and Beauty Industry Award in Victoria - the Hairdressers Award in Victoria.

PN143

So even if the agreement is as bad as it from our perspective as it looks, that actually just compounds the defects in the process adopted by the union and by the employer in the certification of the agreement. Equally, there is another aspect of the arguments that have been raised by Mr Amendola in his written submissions which also go to this whole issue of certification of the agreement. Mr Amendola says that the employer quite clearly has the power to promote a person in relation to a transfer. If that again is the proper interpretation of the application of this agreement, then if the employer has the power to promote an employee, then the employer has the power to promote any employee so as to remove that employee from the operation of the agreement because the agreement only applies to persons in the classifications as designated.

PN144

So if the employer promotes a person to a classification which is not mentioned in the agreement and doesn't have the rate of pay in the agreement, then they are also outside that agreement. That also was never explained to the employees before they voted. Also if Mr Amendola is right that promotion can occur, then it is possible for the employer to promote an employee to a wage level which immediately removes them from the jurisdiction of the Commission in relation to unfair dismissals. And it would be easy to imagine a scenario using Mr Amendola's logic that an employee could on Monday, 1 September be promoted to a salary which puts them outside of the remuneration jurisdiction of the Commission for the purposes of unfair termination and be terminated on 2 September without recourse to the Commission. That, Commissioner - - -

PN145

THE COMMISSIONER: That gives them recourse to other places though.

PN146

MR RYAN: But what it does do, Commissioner, is that would be a - if that is the actual operation of this agreement, then that raises a significant issue in relation to the no disadvantage test because the no disadvantage test is not only against the relevant award, which in this case was the Hairdressing Award, but also against any law of the Commonwealth or the state. And one of the critical laws of the Commonwealth which provided specific protection to employees is the Workplace Relations Act which allows for termination of employment to be dealt with by the Commission where an employee is under a certain salary cap.

PN147

If, as Mr Amendola contends, that they have got the power and certainly consistent with his interpretation of this agreement, they have got the power under the agreement to promote a worker and that would enable them to promote a worker to a wage level outside - which puts them outside the jurisdiction of this Commission. That would be one of the actual operations of the agreement which would have required both the union and the employer to have explained the operation of the agreement to the workers before they voted on it.

PN148

That wasn't done and that simply compounds the errors in relation to the certification process and it would be very clear that the certification process in relation to this agreement would be so tainted by the conduct of both the union and the employer, and I am not blaming the employer, I am saying both of us would be at fault in not explaining the actual operation of the agreement and we would have done such a disservice to the employees that the Commission could not and would not have certified the agreement if these issues about the actual operation were known because they would have clearly breached the no disadvantage test.

PN149

And then if they did breach the no disadvantage test, it raises all those issues as to whether or not certification would flow or whether the Commission would have required either variation of the agreement or undertakings to be given by the employer in relation to the operation of the agreement prior to certification. Because none of that occurred, then we actually have an agreement which has been certified wrongly, in fact I would say certified contrary to the jurisdiction of the Commission which would invalidate or void the certification of the agreement.

PN150

So that is why we then say you still have jurisdiction to deal with the dispute that we have before you because if the agreement falls away, you have got your jurisdiction in relation to dispute settling procedures under the award. To the extent that the dispute notification may have wrongly identified the correct legal instrument for bringing this matter before the Commission, then all we would say is we would ask you to waive compliance with the rules, accept the oral submissions as being a variation of the application to bring the matter before you, and the matter is still properly before you, and the Commission still has jurisdiction in relation to dealing with the matter. If the Commission pleases.

PN151

THE COMMISSIONER: Mr Amendola.

PN152

MR AMENDOLA: Commissioner, if I can formally perhaps - I am not sure whether tender is appropriate, but have my submissions of 26 August marked.

PN153

THE COMMISSIONER: Yes.

EXHIBIT #R1 SUBMISSIONS

PN154

MR AMENDOLA: We rely upon those submissions, Commissioner. In respect of the matters raised this morning by my friend, Mr Ryan, in the agreement at 4.2, that is the certified agreement, very clearly says that the agreement shall only apply throughout the State of Victoria. When one looks at the Hairdressing and Beauty Services Victoria Award 2001, it is called the Hairdressing and Beauty Services Victoria Award 2001 for a reason, that it applies only in Victoria, and it is the award that was relied upon for the purpose of the no disadvantage test in so far as the agreement was concerned. So really, Commissioner, further submissions as to why the agreement was improperly certified or what have you, but let us assume, Commissioner, that it was improperly certified. The outcome of that submission is that - - -

PN155

THE COMMISSIONER: But it is not for me.

PN156

MR AMENDOLA: That is correct, Commissioner.

PN157

THE COMMISSIONER: I am trying to get the - look, the simple matter, gentlemen, in respect of this matter is have I got jurisdiction or not? I seriously doubt that I have.

PN158

MR RYAN: Yes.

PN159

MR AMENDOLA: Well, with respect, I agree, Commissioner.

PN160

THE COMMISSIONER: That would be the first time you have agreed with me in your life, Mr Amendola.

PN161

MR AMENDOLA: That is not true.

PN162

THE COMMISSIONER: You be very careful.

PN163

MR AMENDOLA: That is not true, Commissioner. Yes, because if one is left with - - -

PN164

THE COMMISSIONER: Look, I have read your submissions, I have heard what Mr Ryan said, I heard what Mr Ryan said last time, and I strongly doubt if I have got jurisdiction. If there is an argument about the agreement, it should be before a court of your proper jurisdiction, which is not this place. I find it difficult to accept, and I don't make - place it any higher than that, that people would be party to an agreement without knowing what was in it, especially intelligent people. And I have never met a dill in a hairdressing salon in my life because at least they know how to add the money up. Is this matter or are any aspects of this matter before any other jurisdiction, Mr Ryan?

PN165

MR RYAN: Aspects of the matter are definitely before the Equal Opportunity Commission in Victoria and also before the Victorian Civil and Administrative Tribunal in Victoria, but the VCAT hearing is only to see whether or not the matters before the EOC are to be expedited or not.

PN166

THE COMMISSIONER: Yes.

PN167

MR RYAN: So it is a technical aspect only before VCAT but there is a substantive matter in relation to sexual discrimination before the Equal Opportunity Commission of Victoria.

PN168

THE COMMISSIONER: Thank you.

PN169

MR AMENDOLA: Well, Commissioner, if I can just respond to that briefly.

PN170

THE COMMISSIONER: Yes.

PN171

MR AMENDOLA: And that is to say it is not aspects of the matter. If one looks at the dispute notification as it was originally filed and one were to have a look at the complaint that was made, in essence it is one and the same matter.

PN172

THE COMMISSIONER: Well, I am loathe to admit this Commissioner doesn't have jurisdiction. Because of my history of grabbing hold of matters and kicking people around the hall until matters are resolved, it is fairly apparent that the Commission hasn't necessarily succeeded in this case. As much as it irks me, I find I am without jurisdiction. Therefore the application is dismissed. I have no other jurisdiction, I strongly urge again the parties to try and sort the matter out between themselves because I urge both the parties. If you start airing your differences in places like this or VCAT or anywhere else, no matter who wins, mud always sticks. And that is my experience of life, I am a lot older than the rest of you, including Mr Ryan. This Commission is adjourned, good morning.

ADJOURNED INDEFINITELY [10.24am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #A1 APPLICATION AND STATUTORY DECLARATION PN137
EXHIBIT #R1 SUBMISSIONS PN154