AG2003/6894, Transcript of Proceedings [2003] AIRCTrans 4239 (25 September 2003)

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TRANSCRIPT OF PROCEEDINGS


O/N 10557

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER MANSFIELD

AG2003/6894

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LK of the Act
by HTH Personnel Pty Ltd for certification
of the HTH Personnel Pty Ltd Workplace
Agreement 2003

MELBOURNE

10.00 AM, TUESDAY, 9 SEPTEMBER 2003

PN1

MS S. MOORE: I am from Gary Katz and Associates, solicitor, seeking leave to appear in this matter on behalf of HTH Personnel Pty Limited.

PN2

MR R. WAINWRIGHT: I appear for the Construction, Forestry, Mining and Energy Union and we are seeking an adjournment in this matter.

PN3

THE COMMISSIONER: You are seeking?

PN4

MR WAINWRIGHT: An adjournment, Commissioner.

PN5

THE COMMISSIONER: What is the basis of your appearance, Mr Wainwright. Do you have - - -

PN6

MR WAINWRIGHT: The basis of my appearance, Commissioner, is that I am instructed that the CFMEU has members with this company. We learned of this listing at 9 o'clock this morning. Now, I sought instructions from Mr Bill Oliver, the Assistant Secretary of the union. He has instructed me that employees of the company joined the union on or about the time of the Melbourne Grand Prix this year. Upon joining the union they also indicated that they wished the union to act on their behalf as agents in matters such as these.

PN7

We are obviously searching our records for that information that we can put to you. Until I do that I can't tell you whether or not I am seeking leave to intervene under 43(1) or 43(2). It may also be, Commissioner, certainly on my examination of the documentation, that there is no valid application here, in which case we would be asking you to follow the precedent set by Senior Deputy President Williams in the MRE matter and Vice President Ross in the Grocon matter.

PN8

THE COMMISSIONER: Thank you, Mr Wainwright. And you can produce evidence, Mr Wainwright, that you do have members employed by this company?

PN9

MR WAINWRIGHT: Well, that is exactly what we are attempting to do and exactly why we are seeking the adjournment, Commissioner. We have had one hour's notification. The memory of our Assistant Secretary says that certainly employees of the company did join the union at the Grand Prix but, as you understand, Commissioner, we have upwards of 25,000 members. We need to find those particular employees and we need to check whether or not they have indicated that they want us to act as their agents under section 170LK(4).

PN10

THE COMMISSIONER: Thank you, Mr Wainwright. Ms Moore.

PN11

MS MOORE: Well, Commissioner, in terms of that, the company would most certainly oppose any application for the proceedings to be adjourned and in terms of that, I would question the jurisdictional ability of the union to seek that the matter be adjourned, given that we would very strongly argue before you, Commissioner, that they have got no standing to intervene, so no standing - - -

PN12

THE COMMISSIONER: If they have members employed by the company, Ms Moore, on the face of it under section 43 of the Act, they would have an ability to intervene in the proceedings.

PN13

MS MOORE: Commissioner, in terms of section 43(2)(a) - well, 43(2) obviously would be the relevant section here. I think it is fairly settled law at the point in time that when the application as for certification of an agreement under division 2 or 3 of part VIB for certification of an agreement in section 43(2) is the relevant section. In terms of section 43(2)(a) we acknowledge that the Commission must, on application, grant leave to intervene in the matter to any organisation of employees such as the CFMEU provided that there has been a section 170LK for request which we say we certainly have no knowledge of, no such notification was received by the company.

PN14

And in terms of section 43(2)(a), in the absence of that section 170LK for notification, the Commission must not grant leave to intervene in the matter to an organisation of employees other than one that is proposed to be bound by the agreement, Commissioner, which brings into relevance section 170M of the Act. Now, section 170M(1) is satisfied in that the application for certification states that it is made under division 2 in that it is stated by the employer and/or persons whose employment is at any time when the agreement is in operation subject to the agreement.

PN15

Section 170M(3), Commissioner, we say the prerequisites of that section are met but it is not only that the CFMEU must satisfy you, Commissioner, that it has at least one member whose employment will be subject to the agreement and whose industrial interests the organisation entitled to represent in relation to work that will be subject to the agreement which I would suggest would need to be satisfied also, but also, Commissioner, who requested the organisation to give the notification that it wished the union to be bound by the agreement.

PN16

So we would say, Commissioner, it is not enough that the CFMEU just has membership, there are a number of other prerequisites required by section 43(2)(a) and/or (b) of the Act an order for any intervention application to be granted. Furthermore, Commissioner, I would also point out that the company, Harry The Hirer Proprietary Limited, is actually a respondent to the relevant award in this matter which is the Exhibition Industry Award of 2001, now that is an award that is made between the Australian Entertainment Industry in respect of its members, employers whose names are set out in schedule A which incorporates Harry The Hirer Pty Limited and also the Australian Workers Union. So in terms of the relevant award the CFMEU is not actually, itself, bound by the award that is pertinent in these proceedings, Commissioner.

PN17

THE COMMISSIONER: Is that a point of critical importance, Ms Moore, in the sense that the fact that the CFMEU is not bound by the award doesn't necessarily impact on its eligibility to recruit members in the Exhibition Hire Industry and represent those members in proceedings such as this if the members so wish?

PN18

MS MOORE: Well, that is true, Commissioner, yes, but if any - look, I can't speak for employees on that matter but, yes, that is correct. I think that - - -

PN19

THE COMMISSIONER: It may be that the CFMEU may wish to become a party to the agreement. I haven't heard from Mr Wainwright on that and as he said they only found out about this a very short time ago and maybe they haven't considered that issue at this point.

PN20

MS MOORE: Well, with respect, Commissioner, section 170LK(4) and (6) provides processes for employees who are union members to request their union to meet and confer with the company. Now, just because they have members does not necessarily mean that their members wish them to get involved in the agreement-making process. Now, Commissioner, it is our very strong submission that employees were provided with a copy of the LK(4) notification. I have copies of that for the Commission's reference. Just because the union has membership doesn't necessarily mean that they still have any standing under section 43(2) if their members did not wish them to be involved in this process, Commissioner.

PN21

THE COMMISSIONER: Yes. I take it, Ms Moore, that unless Mr Wainwright is able to produce some evidence of membership of the CFMEU amongst employees of HTH Personnel, and a request from those members to represent them in these proceedings, that the company would maintain a strong objection to the CFMEU being represented?

PN22

MS MOORE: Yes, Commissioner, and we would also refer the Commissioner to section 170M(3)(d)(iii) and that not just members wish the CFMEU to become involved because obviously having not received any LK(4) notifications and the agreements made, those are no longer relevant for meet and confer, but they would have to, we would submit with respect, show that those members have actually requested the union to give the notification.

PN23

THE COMMISSIONER: Yes.

PN24

MS MOORE: But, yes, we would maintain a very strong objection to any adjournment. Obviously - - -

PN25

THE COMMISSIONER: Where would the company be disadvantaged, Ms Moore, if there was an adjournment granted?

PN26

MS MOORE: Commissioner, it is more about the employees being disadvantaged rather than the company. In terms of business efficacy, I mean, this is a process obviously that has taken some time, time and resources to work through. It is also a process that provides for wage increases for employees which would - - -

PN27

THE COMMISSIONER: But is the company going to stand those aside if - I don't see any wage increases in the agreement excepting for the notation that the wages will always be 3 per cent higher than the award. I don't see any other increases beyond that.

PN28

MS MOORE: Well, those wages in the agreement are actually higher than award rates, Commissioner.

PN29

THE COMMISSIONER: Yes, they are 3 per cent higher and that is the provision of the agreement.

PN30

MS MOORE: At this point in time they are actually slightly more but the agreement provides that they will always be - - -

PN31

THE COMMISSIONER: But at least 3 per cent, sorry, yes, they are, you are right.

PN32

MS MOORE: Yes, at least 3 per cent higher, Commissioner. Would I just be able to take further instructions for a minute, Commissioner?

PN33

THE COMMISSIONER: Yes, if you wish.

PN34

MS MOORE: Thank you.

PN35

THE COMMISSIONER: Do you want a short adjournment, Ms Moore? I take it, Ms Moore, all of the people sitting behind are HTH personnel?

PN36

MS MOORE: Yes, Commissioner, they are members of the consultative committee. So it would be very much appreciated if we could have a brief adjournment so that I can take further instructions on precisely how the company will be disadvantaged if the matter is adjourned today.

PN37

THE COMMISSIONER: Yes. Well, let me give you one other thing to consider whilst you are having an adjournment. I should notify both of the parties represented here today that a son of mine works in the Exhibition Hire Industry and at one stage he worked for HTH. He is not currently working for them, he is working for another company in the industry. He stopped working for HTH probably - look, I am guessing, 18 months ago. So I would like you to take that into account and if you feel that it is inappropriate for me to deal with this matter because of my son's involvement that is something you might want to think about.

PN38

MS MOORE: Thank you, Commissioner.

PN39

THE COMMISSIONER: We will have an adjournment for 10 minutes, would that be adequate?

PN40

MS MOORE: Yes, I think so, thank you, Commissioner.

PN41

THE COMMISSIONER: Good. We will come back at twenty past ten.

SHORT ADJOURNMENT [10.10am]

RESUMED [10.25am]

PN42

THE COMMISSIONER: Ms Moore, you were seeking instructions.

PN43

MS MOORE: Yes, thank you, Commissioner. We still would maintain a strong objection to the matter being adjourned at all and can only refer to and repeat the arguments we previously made. In terms of the disadvantage to the company, obviously, any delay would affect the production of the contract. Obviously, it is a question of, for how long? The major disadvantage I maintain would apply to employees in terms of their access to the benefits provided for the agreement, which apart from wage increases there are some additional benefits which they do not currently have under the agreement, most notably, a late night allowance and the increase in the meal allowance.

PN44

We would also say very strongly, Commissioner, that if there was going to be any adjournment then that should be for as short a time as possible and I am talking in terms of hours, Commissioner, not days. In today's modern technology, albeit the number of members the CFMEU states that they have, it surely should be a database which is contained on a computer and surely should be as simple as plugging in a few search terms. So we would very, very strongly request the Commission that if you were minded to grant an adjournment then that adjournment would only be, maybe, to lunch time or early afternoon, Commissioner.

PN45

THE COMMISSIONER: Thank you, Ms Moore.

PN46

MS MOORE: Oh, sorry, Commissioner, I should just say that the company does not wish to object to your hearing this matter, thank you.

PN47

THE COMMISSIONER: Thank you. Mr Wainwright.

PN48

MR WAINWRIGHT: Well, nor would we make any objection, Commissioner, to your continuing to handle this matter. Commissioner, in relation to damage to people's standings, if an adjournment were not granted I believe the greater damage here could be done to the CFMEU. We believe it is a weakness of the Act that LK agreements are heard and certified without potential parties being notified. It puts us in the position where we have to try and pick it up on the listings, we have to come here without adequate instructions.

PN49

Now, I can do a very quick search of our database if I have a list of the employees who are to be covered by this agreement. Without a list of employees who are to be covered by this agreement I need to do a much more extensive search. Our database is made up of our membership lists, not of hiring companies. So we have to go back and find those cards that came in from the Grand Prix and we then have to see if people said that we should represent them or not. So we say, Commissioner, that an adjournment is appropriate to ensure that the objects of the Act are met and to ensure that the rights of the CFMEU and its members are not damaged.

PN50

Commissioner, I can provide to your office later today a decision made by Senior Deputy President Williams on transcript in similar circumstances where he granted an adjournment for a week to allow those searches to go on. What he sought in relation to that was that the CFMEU undertake the search and that they notify the question in question of what they found and their intentions for any future participation in the matter. So should it come to pass that I don't find anything or the instructions I have received thus far are not correct - perhaps those people have moved on, whatever the case may be - I am in a position where I need to tell Ms Moore, well, we won't be continuing to intervene.

PN51

I also need to put to you, Commissioner, that the CFMEU seeks the adjournment also to further examine the agreement because we believe that there are submissions that will be made to you or could be made to you in relation to whether or not there is a valid application before you. And I say that in terms of whether or not a proper consultation took place with the casual workers and the female workers. There is no information on that in the statutory declarations. I also have to say that I think there is a flaw in the agreement itself which makes it incapable of being certified. But those are matters that we may put forward to you at a later time.

PN52

All I can say to you in summary is that the CFMEU is here on short notice. We believe we have a position, both for the organisation and for our members, that needs to be protected and we seek an adjournment for a week to enable us to do that.

PN53

THE COMMISSIONER: Thank you, Mr Wainwright. Ms Moore, is the company willing to provide a list of its employees to the CFMEU?

PN54

MS MOORE: No, Commissioner.

PN55

THE COMMISSIONER: Because that is relevant in terms of any period of adjournment which I might be prepared to allow. If the company was prepared to provide a list of its employees to the CFMEU to allow it to match those employees with its members, obviously, the period of adjournment could be considerably shorter than it otherwise might be.

PN56

MS MOORE: Commissioner, we would have to say that that still would remain a no. I haven't got the Privacy Act here with me, Commissioner, but I have had some previous looks at the Act which would indicate that we would be prevented from doing so in any event but also, no, the company is not prepared to do that. Having said that, I don't know the way the CFMEU's database works but I would have thought that they could just enter the name of the company.

PN57

THE COMMISSIONER: Well, perhaps - I am not aware of that either.

PN58

MS MOORE: My understanding is that that information is requested of employees when they join the union.

PN59

THE COMMISSIONER: But on the specific question, the company is not prepared to provide the CFMEU with a list of its employees?

PN60

MS MOORE: No, Commissioner.

PN61

THE COMMISSIONER: Good. Thank you.

PN62

MR WAINWRIGHT: Well, Commissioner, I can instruct you on the CFMEU database. Our membership card, and I think I have one here, does ask for the employer company but that is not a field that is entered. So I can't go and do a search of Harry The Hirer on our database.

PN63

THE COMMISSIONER: Yes.

PN64

MR WAINWRIGHT: Would that I could because it would be very useful but I can't.

PN65

THE COMMISSIONER: Yes, thank you, Mr Wainwright. Ms Moore, do you wish to say anything else otherwise I am going to respond to Mr Wainwright's request for an adjournment of this matter?

PN66

MS MOORE: Only to point out to you, Commissioner, or to really make one very small further submission in that Mr Wainwright seems to have indicated to everyone here today that, in fact, the Act doesn't actually provide for notification of the union when there is a non-union agreement. But, really, I think that that just reaffirms what the Workplace Relations Act actually says in this matter, that it is an agreement that is made between the employer and its employees and should the employees wish the union to become involved then they have plenty of opportunity to do so. We say they haven't done so, so therefore no adjournment should be granted and that the CFMEU doesn't have any standing in this matter. Thank you, Commissioner.

PN67

THE COMMISSIONER: Yes. Thank you, Ms Moore. Mr Wainwright, anything else to say, otherwise - - -

PN68

MR WAINWRIGHT: Well, I can only say that the employees in this case have the right to request the union to represent them. And the Commission needs to be satisfied that they were given that opportunity and they were given it without any pressure or coercion. And that is exactly what we want this adjournment to investigate.

PN69

THE COMMISSIONER: Thank you, Mr Wainwright. Taking account of the submissions of both Ms Moore on behalf of HTH Personnel and Mr Wainwright on behalf of the CFMEU, in my judgment it is important that organisations which have a potential interest in an agreement, in this case a section 170LK, do have an opportunity to properly consider any submissions that they might wish to make. In this particular case, Mr Wainwright and the CFMEU have become aware of this matter at late notice.

PN70

They have requested additional time to secure evidence of their entitlement to be represented by reference to membership of the organisation amongst employees of HTH Personnel and also to examine the documentation associated with the agreement. It is important that the organisation have an opportunity to make submissions if it is entitled to do so and I propose to grant an adjournment as requested by Mr Wainwright, taking account of the fact that the company is not prepared to provide a list of its employees to the organisation. The matter will be re-listed for hearing at 3.30 pm on Wednesday, 17 September, which is Wednesday of next week. This matter is now adjourned.

ADJOURNED UNTIL WEDNESDAY, 17 SEPTEMBER 2003 [10.35am]