AG2003/6362, Transcript of Proceedings [2003] AIRCTrans 4340 (1 October 2003)

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TRANSCRIPT OF PROCEEDINGS

O/N 4694
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT ACTON

AG2003/6362

APPLICATION FOR VARIATION OF
CERTIFIED AGREEMENT

Application under section 170MD(2) of the Act
by the Country Fire Authority (CFA) to vary
the CFA Mechanical Maintenance and Tower
Overseer Certified Agreement 2001

MELBOURNE

10.07 AM, MONDAY, 15 SEPTEMBER 2003

Continued from 7.8.03

PN29

MS L. RUSSELL: I seek leave to appear for the Country Fire Authority.

PN30

MR J. HARRIS: I appear on behalf of the Australian Services Union. I also make an appearance for MR N. KOLETSIS from the UFU who is currently certifying an agreement in another matter.

PN31

THE SENIOR DEPUTY PRESIDENT: Seeking to have one certified, anyway.

PN32

MR HARRIS: Yes, seeking to have one certified. I stand corrected.

PN33

THE SENIOR DEPUTY PRESIDENT: Yes. Ms Russell.

PN34

MS RUSSELL: Thank you, your Honour. First of all, your Honour, can I thank the Commission for accommodating my annual leave and moving the date of this hearing. Your Honour, I understand that when this matter was last before you, you expressed a number of concerns about what the parties were seeking to do and obviously I have had a read of the transcript from that day. Subsequent to that hearing, obviously I was asked by the CFA and then by the other parties to prepare some submissions which we hope have sought in part to address some of the concerns expressed by your Honour.

PN35

However, it seems to me that perhaps in addition to those submissions which I wasn't intending to read through unless the Commission wanted me to, but in addition to those submissions that given that your Honour's concerns appear to specifically relate to how the agreement would operate, it may well be a case where some undertakings may be appropriate and what I was intending to do was just to run through what we understood to be the two primary concerns of the Commission and to proffer what might be appropriate undertakings.

PN36

Your Honour, as I understand it, the first concern that the Commission has expressed is that in effect, what the parties are seeking to do by this variation is to extend the period of operation of the agreement and clearly that is something that is not open to the parties to do, given that the agreement is passed its nominal expiry date. The CFA says, your Honour, that what it is seeking is a variation to the agreement, that in respect of the agreement, the current position is that as a result of section 170LX, the situation with the agreement is that while it has past its nominal expiry date, it does continue in operation and that that will be the case until it is replaced by another certified agreement.

PN37

Your Honour, we say that in that situation, it is open to the parties to seek a variation of the agreement. To the extent to which the Commission is concerned that what the parties are trying to do is to extend the nominal expiry date of the agreement, I would give an undertaking that there is no intention to do that. The parties clearly understand that this is a variation to the agreement, subject to the terms of that agreement which means that the nominal expiry date remains as it currently is and, as I say, there is really no change to the operation of the agreement in respect of the nominal expiry date from this variation.

PN38

Secondly, your Honour, the concern that seemed to be expressed last time was that in some way, this variation could impact on the ability of the unions to be able to initiate a bargaining period and then take protected industrial action in respect of a new enterprise agreement. Again, your Honour, I would give an undertaking for the CFA that its position is quite clear, that this agreement has passed its nominal expiry date.

PN39

That means that the unions are in a situation where they can initiate a new bargaining period and obviously subject to the requirements of the Act, they could then seek to take protected industrial action if they wish to do so in pursuit of a new enterprise agreement, so, your Honour, we say that in respect of what appear to be at least two of the concerns of this Commission about the operation of the agreement, that that is clearly what is not intended by the CFA or the other parties.

PN40

Your Honour, even before we get I suppose to that point, the position of the parties is that even if they were trying to in some way change the nominal expiry date, then they are not in a position to be able to do that. The Act is very clear. If they had wished to extend the nominal expiry date of the agreement, they would have needed to have brought the appropriate application before the nominal expiry date which clearly they didn't.

PN41

Your Honour, obviously there has been some just brief written submissions filed on behalf of the parties. As I said, I don't intend to go through those. Obviously if your Honour has any questions, I am happy to deal with those, but it is the CFAs position based on those submissions and the undertakings that the Commission should be satisfied and vary the agreement in the way sought. If the Commission pleases.

PN42

THE SENIOR DEPUTY PRESIDENT: Ms Russell, my problem is this. I can't vary unless I would be required to certify the agreement as if it hadn't been made before under MD(2). One of the requirements is that the agreement have a nominal expiry date and that date can't be more than three years after the date on which the agreement came into operation. It seems to me that section 170LT(10) has a prospective notion to it, the nominal expiry date will be prospective, not retrospective. That is my concern and I can't see how an undertaking can overcome that legal problem.

PN43

MS RUSSELL: Your Honour, does that concern primarily come from the date that has been put on the proposed order?

PN44

THE SENIOR DEPUTY PRESIDENT: No, it is by virtue of this. As I understand 170MD(2), I am to read the agreement as varied, as if it was the agreement initio.

PN45

MS RUSSELL: Yes.

PN46

THE SENIOR DEPUTY PRESIDENT: If it came to me like initio, I would be looking at it and saying, hang on, it is now 15 September and the nominal expiry date in this agreement is some months previously as I recall. Under LT(10) it has to have a nominal expiry date which is not more than three years. It seems to me that 170LT(10) has a prospective nominal expiry date notion to it and the agreement that I would have before me initio has a retrospective nominal expiry date. That is my concern. It is not one of being deliberately difficult.

PN47

MS RUSSELL: No, no, I understand that, your Honour.

PN48

THE SENIOR DEPUTY PRESIDENT: It is one where by law I am concerned and there is nothing in the submissions to me that address that except maybe a different legal view about what is intended by 170LT(10) and if I am right on that, then an undertaking it seems to me can't overcome it.

PN49

MS RUSSELL: I accept that, your Honour. I suppose we do have a different legal view about 170LT(10) and, your Honour, I suppose the other thing we would say would be that if your Honour's view about the operation of 170LT(10) was correct, then it would mean that in effect there was no capacity to vary an agreement once it had passed its nominal expiry date and it seems to us that that is not what is intended. In section 170 - your Honour, if you look at division 5 which deals with the effect of certified agreements - - -

PN50

THE SENIOR DEPUTY PRESIDENT: What section are you on again?

PN51

MS RUSSELL: The two sections that I am looking at are section 170LX and 170LY and clearly section 170LX that I have already gone to deals with the period of operation of a certified agreement and distinguishes between prior to a nominal expiry date and the fact that the agreement continues in operation after the nominal expiry date. As you are aware, your Honour, in terms of extending the nominal expiry date, that can only be done if the parties do make that application before the nominal expiry date, but in respect of a variation, if you go to section 170MD which obviously follows on from the section that deals with extending the nominal expiry date, section 170MD doesn't distinguish between prior to the nominal expiry date and after the nominal expiry date and in our submission that is because the intention is that there is the capacity once an agreement has passed its nominal expiry date for it to be able to be varied, subject to we say two limitations, one that the statutory requirements for certification of the agreement are met. As you said a variation is treated in exactly the same way as if we came here seeking to have an agreement certified, but secondly in relation to LT(10), we say that that doesn't mean that in effect a variation can only occur in the period between when the agreement commences and the nominal expiry date, that we have a different view about how the limitation in LT(10) operates. We say it doesn't operate in a way that would in effect remove any capacity for the parties to be able to vary an agreement once it has passed its nominal expiry date.

PN52

THE SENIOR DEPUTY PRESIDENT: Do you have any authority for that view?

PN53

MS RUSSELL: No, I don't, your Honour. I am not aware of any case that has had a look at it. As I say, your Honour, it just seems to us that given that certified agreements continue in operation after their nominal expiry date and there is no limitation in respect of 170MD about when that application to vary can be made, because clearly the Parliament could have said that applications to vary certified agreements are limited to while the agreement is before its nominal expiry date, that the preferred view should be that there is the capacity for the parties to vary a certified agreement after its nominal expiry date, but, your Honour, there is no - - -

PN54

THE SENIOR DEPUTY PRESIDENT: You see, I would argue they have.

PN55

MS RUSSELL: I beg your pardon.

PN56

THE SENIOR DEPUTY PRESIDENT: You see, I would argue they have said it by virtue or saying you are required to do it if you could have done it, it was initio.

PN57

MS RUSSELL: Yes. As I say, your Honour, there is not a lot more that I can put before you about that.

PN58

THE SENIOR DEPUTY PRESIDENT: Yes. At least we are clear on what your submission is.

PN59

MS RUSSELL: And the parties understand that you are not - they understand the position that you are in and clearly, as I think your Honour was told in conference last time, really what the parties are seeking to do is to put in effect a deal that has been reached between them and the practical position is that the next enterprise agreement does appear to be a considerable time off and as your Honour probably appreciates, in the public sector in order for these sort of changes to be given effect to, unless the change has been given effect to by the Commission, there is likely to be some difficulties with respect to the CFA being able to get appropriate Government approval for this particular change.

PN60

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Harris.

PN61

MR HARRIS: Your Honour, I am not in a position to argue fine legal points and can only really pursue what is a compelling logic that if as a result of discussions about 170MD, that if an agreement continues to have a life after it has expired and the parties continue to be bound by that life in an agreement, until such time as they renegotiate, it appears from I suppose reading any clause that might impinge on that that there is the ability for the parties to agree on a variation to the application to that agreement.

PN62

Now, I would suggest that in the circumstances, with the operation of the last agreement which set out a series of events, that the parties would need to work together to establish what is a difficult process, establishing a classification process from the ground up and going through that whole process, the extension and the fine detail of that has taken quite a bit of time. Despite what the legal argument might be, surely based on the fact that agreement - one would have thought the opportunity to vary an agreement, the ability then to carry over in the life of that agreement the work that was done, initiated in that agreement to develop this structure. Our members anticipating that process have worked with the employer at length to come up with something in an agreement which is going to stand the organisation and them in good stead into the future.

PN63

It appears to be very difficult to face the circumstance that, having done that, having made use of the agreement, continuing to use the agreement to improve the circumstances within the organisation and also operating under that agreement, that it should be brought to a halt in this way. As I say, I am not in a position to argue the legal technicalities and I suppose what I had to say during the last hearing is sufficient in terms of being of the view that despite the fact that we have passed the nominal expiry date, the agreement still has an active life. I can only say that we support the application based on the information that has been put by our colleague.

PN64

THE SENIOR DEPUTY PRESIDENT: Mr Koletsis.

PN65

MR KOLETSIS: Thank you, your Honour. First, apologies for arriving late. Your Honour, look, I endorse and support the submissions of both the CFA and the ASU in this matter. At the risk of repeating Mr Harris's submission, the proposed variation deals with an agreement or a clause that was agreed to in the existing EBA that said that we would develop a structure during the life of the agreement and seek to vary it. I just want to repeat that our members have agreed and voted on the variation and it is a consent variation in that regard, so as Mr Harris says, I am not particularly in a position to argue fine legal points or even course legal points, really, but I might just say that industrially I can assure you, your Honour, that there isn't anything contentious industrially in this matter. Thank you.

PN66

THE SENIOR DEPUTY PRESIDENT: Anything else, Ms Russell?

PN67

MS RUSSELL: No, your Honour. I think the issues have been identified. We say that the way that section 170LT(10) operates is to make sure that the parties don't seek to in effect extend an agreement beyond three years from when the agreement came into operation. Clearly this agreement came into operation on 30 September 2002 and we say that the Commission is in a position to be able to make the variation sought.

PN68

THE SENIOR DEPUTY PRESIDENT: I will hand down a decision in the matter at 11.45. I will now adjourn.

SHORT ADJOURNMENT [10.26am]

RESUMED [11.48am]

PN69

THE SENIOR DEPUTY PRESIDENT: I have reached a decision in this matter. In this matter, the Country Fire Authority supported by the United Firefighters' Union and the Australian Services Union seek to vary the CFA Mechanical Maintenance and Tower Overseer Certified Agreement 2001. They seek to vary it by inserting new paragraphs and schedules concerning a new competency based wage structure for those covered by the agreement.

PN70

The application to vary the agreement was filed in the Commission on 22 July 2003. The agreement came into force from 30 September 2002 and has a nominal expiry date of 30 June 2003. I should ask the parties at this stage one question. There is the possibility of the parties submitting a new agreement, reaching a new agreement, having it voted on and submitting a new agreement. Is that a possibility, Ms Russell?

PN71

MS RUSSELL: Your Honour, they are not likely to reach a new comprehensive agreement for a considerable period of time, not necessarily for want of trying, but there is a number of factors that mean that a comprehensive agreement is not imminent.

PN72

THE SENIOR DEPUTY PRESIDENT: Thank you. Do you concur with that?

PN73

MR KOLETSIS: Yes, your Honour, that is correct. We haven't really commenced discussions yet.

PN74

THE SENIOR DEPUTY PRESIDENT: Having regard, then, to that, in this matter I am not satisfied I can vary the agreement as sought, given its nominal expiry date has passed. I have come to that conclusion for the following reasons. Section 170MD(3) of the Workplace Relations Act is as follows:

PN75

The Commission must by order approve the variation if and must not approve the variation unless it is satisfied ...(reads)... if it were a new agreement whose certification was applied for under this part.

PN76

Accordingly, the Commission must not approve the variation unless it is satisfied that, quote:

PN77

The Commission would be required to certify the agreement as varied if it were a new agreement whose certification was applied for under this part.

PN78

That leads the Commission to the requirements of sections 170LT and LU of the Act. Section 170LU(1) states that, quote:

PN79

If an application is made to the Commission in accordance with division 2 or 3 to certify an agreement ...(reads)... cannot be more than three years after the date on which the agreement will come into operation.

PN80

Accordingly, the Commission must not certify the agreement if its nominal expiry date is more than three years after the date on which the agreement will come into operation. Under section 170LX(1) of the Act, an agreement comes into operation when it is certified. If an agreement comes into operation when it is certified, section 170LX(1), and its nominal expiry date cannot be more than three years after the date on which it comes into operation, section 170LU(10), I believe the nominal expiry date of an agreement is required to be prospective, rather than retrospective from the date of certification of the agreement for the agreement to be certified.

PN81

Given that under section 170MD(3)(b) in considering whether I should approve the variation sought, I must be satisfied I would be required to certify the agreement as varied as if it were a new agreement whose certification was applied for under part VIB of the Act. The parties in this matter in seeking the variation are effectively asking me to certify an agreement whose nominal expiry date has passed.

PN82

The date of the certification of the agreement as varied would be 15 August 2003 and the nominal expiry date of the agreement as varied would be retrospective, being 30 June 2003. For the reasons given above, I do not believe I can by law certify such an agreement or approve a variation for an agreement whose nominal expiry date has passed. I do not consider the legal difficulties I believe exist in this matter can be overcome by the undertakings given by the CFA in this matter, as I am not satisfied they meet the legal concerns I have with approving the variation.

PN83

Further, I have suggested to the parties that they reach a new agreement which includes the terms of the variation and submit it to the Commission for certification, but it has been indicated at this stage they are unable to do so. Accordingly, for the reasons given, I refuse to approve the variation sought in this matter and I dismiss the application. I now adjourn. Yes, Ms Russell.

PN84

MS RUSSELL: Your Honour, I was wondering if it is possible just to go off the record for a moment? There is just one matter we would like to raise.

PN85

THE SENIOR DEPUTY PRESIDENT: Yes.

OFF THE RECORD

PN86

MS RUSSELL: Ms Russell, is there anything you wanted to add?

PN87

MS RUSSELL: Yes, your Honour. Your Honour, thanks for that brief adjournment. The parties understand that you have suggested that one way through this matter is to try and expedite a comprehensive agreement, but given that there are some difficulties in doing that in a short time frame, what has been proposed is that the issue that was before you today will now be pursued as a single issue enterprise agreement and on that basis, the parties would hope to be able to bring this matter to you fairly shortly and it will be, as I say, an application for certification of an agreement that will just deal with the matter that was dealt with in the variation.

PN88

THE SENIOR DEPUTY PRESIDENT: Well, if you are able to do that reasonably quickly, I can give you 9.30 am on 16 October 2003 here in Melbourne for consideration of the certification of any such agreement reached. I will tentatively pencil that date in pending receipt of a new application in the matter. I will now adjourn.

PN89

MS RUSSELL: Thank you, your Honour.

ADJOURNED ACCORDINGLY [12.01pm]