AG2003/337, Transcript of Proceedings [2003] AIRCTrans 4347 (1 October 2003)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

DEPUTY PRESIDENT McCARTHY

AG2003/337

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LJ of the Act
by Alltype Engineering Services and Another
for certification of the Beenyup WWTP
(Alltype Engineering Services) Certified
Agreement 2003

PERTH

1.03 PM, MONDAY, 15 SEPTEMBER 2003

PN1

THE DEPUTY PRESIDENT: Good afternoon. This is a section 170LJ certification proceeding, that is a proceeding regarding certification of an agreement lodged under section - or made under section 170LJ. There is a range of questions regarding the statutory declaration and the making of the agreement and its lodgment that I have, as well as a range of questions relating to some of the content of the agreement. What I would propose and I take it, Mr Cooke, you are representing Alltype Engineering Services?

PN2

MR P. COOKE: Yes. I am, if it please the Commission.

PN3

THE DEPUTY PRESIDENT: Yes. And there is no representation from any other party. What I would propose is to raise some of those issues on transcript and should you wish to comment on them directly, Mr Cooke, you should do so on transcript and then if there is any value in canvassing some of those issues in any more depth, given some of the concerns I have, which aren't major I might add, then we might do that off record. Is that suitable to you, Mr Cooke?

PN4

MR COOKE: Yes. Certainly, sir.

PN5

THE DEPUTY PRESIDENT: Firstly, with respect to the - unless you want to make any opening comments, I though I would just launch into it, Mr Cooke. Does that suit you?

PN6

MR COOKE: No. That is fine by us, sir.

PN7

THE DEPUTY PRESIDENT: Firstly, in relation to the agreement itself or - sorry, the notice that has been filed and the statutory declaration, it looks like, I mean this looks quite finicky but nevertheless it is required to be gotten right. Points 1.1 to 1.3, they are pure statements that are on there, they are not in the form of the usual form that comes before the Commission but I would just point that out. I don't require any response on that just alert you to it, Mr Cooke. Item 6.4, it indicates that copy of the agreement was made available on site and the major points and issues were discussed with the employees.

PN8

What I would like you identify for me is when that agreement was made available, given the requirement of the legislation that the agreement be made available for 14 clear days before there is any requirement for approval to be given. Item 6.4 indicates that a meeting was held and major points in the agreement were discussed and explained to employees at this meeting. I would like to know who that meeting was held with and who made the explanation and whether the explanation was in a form appropriate for the employees concerned.

PN9

The terms of the agreement itself and some of these issues, Mr Cooke, I have in other certification lodgments have pointed them out to various parties and I think for some of them you or your organisation have represented those parties but the form of these agreements and some of these elements that I'm about to identify doesn't seem to be being altered at all. Not that I am suggesting at all that they need to be altered but I need to be clear as to whether they comply with requirements of the Act. So, 1.7, not to be used as a precedent, it is unclear to me how that pertains to the relationship of the employer and the employees to be governed by this agreement.

PN10

It seems to me to be a provision relating to something that might involve either the parties to this agreement or non parties to this agreement to people who may be parties to some agreement in the future, can't see what it has to do with this agreement. Clause 2.3: Annual Leave. There is, in the third paragraph on page 6 of the agreement, a series of asterisk points and it refers to, deeming of continuity of work notwithstanding employees' absences from work and the sixth asterisk point there refers to:

PN11

Any reasons satisfactory to the company in the event of disputes as factored to the Australian Industrial Relations Commission.

PN12

I'm just wondering what or how, what that means and how it is intended to be applied, particularly in respect of how and what should be seen to be satisfactory and under what circumstances to the Australian Industrial Relations Commission and indeed how it would get here. Then in paragraph 4.5, Dispute Resolution Procedures, the first paragraph of that says:

PN13

Where any questions, disputes or difficulties arise.

PN14

I would just like some clarification as to what that means. Does it mean disputes arising out of the agreement or any disputes or any difficulties or just what does it mean and is it intended to apply to a procedure confined to TL(8) but not with respect to 170LW. Step 6 in the agreement, the first paragraph says:

PN15

If still not resolved, the matter may be referred to the Australian Industrial Relations Commission for assistance which may include conciliation and arbitration powers with respect to the interpretation and determination of any dispute arising under this agreement.

PN16

I'm a little unclear as to what is intended and what is meant there and what the parties have in mind with respect to that and how it is to apply. Then the second sentence of that, step 6 says, "The matter", whatever the matter may be, "may be referred to the Commission at any stage of the procedure". So, the party is suggesting there that notwithstanding the procedure that it has agreed to comply and apply with, that may then get referred to the Commission notwithstanding that the procedure hasn't been complied with, it would expect the Commission to deal with the matter regardless of having complied with the steps and the question I ask is, if that is the case what is the point of having a procedure other than an a one point procedure saying, well any matter can be referred to the Commission and that doesn't seem to me to be a procedure. Furthermore, if that is the intent that it can be referred here at any stage notwithstanding the steps not having been complied with why should the Commission approve the empowering of itself to be involved in such a procedure?

PN17

Clause 6.2: First Aid:

PN18

At least one senior First Aid certificate person shall be present on the project at all times when construction work is being performed, the person may be an employee of the company or an employee of a subcontractor.

PN19

At first blush that doesn't appear to me to be a matter pertaining to the relation between the employer and the employee. It appears to be an obligation imposed on the project but then it may well be an undertaking and requirement by virtue of the agreement by this employee that a First Aid certificate person will be present on the project whether it is an employee of the employer or not. Section 7.1: Right of Entry, seems to me to be simply restating the provisions of the Act and in that sense the question I would pose is that, is right of entry a matter relating to the, or pertaining to the relationship between the employer and the employee. And then, 7.2, the second paragraph refers to:

PN20

A job representative having the opportunity to undertake matters related to the employees of the company.

PN21

Now, is that paragraph intended to confine those matters to matters arising out of the agreement or in connection with the application of the agreement or are they any matters and if they are beyond matters in that context, are they matters relating to or pertaining to the relationship between the employer and the employees to be bound by the agreement? Or, are they matters relating to other matters and if they are, how is the agreement certifiable in that context with respect to the obligations I under section 170LI? So, each of those matters, Mr Cooke, I thought I would raise. Some of them have been raised before, some of the were raised in a communication sent to the parties in e-mail form. In an attempt to alert you to those issues I thought I would list the matter this afternoon in order that those issues could be addressed, do you have any comment you want to make on record or do you prefer that some of these matters be dealt with off transcript?

PN22

MR COOKE: There are some matters that I think I can deal with, sir. There are some that we will need to take on notice. I was aware of the e-mail communication that was sent to our office from your Chambers, sir, raising some of these considerations. In the context of just to deal with the issues as you raised them, sir. 6.4: when was the agreement made available to the employees? That, I believe, was outlined or was one of the issues raised in that e-mail communication and I'm advised that the employees were given a copy of the Beenyup Agreement on 14 July 2003. So, that was well within the - they were given the 14 days, at least 14 days to contemplate that.

PN23

In terms of the meeting referred to in clause 6.4: The statutory declaration, sir, as to the date the meeting was held, who attended and who made the explanation. I'm not aware of those details and as the Commission correctly points out, they are not readily discernible from a reading of the statutory declaration that was filed with the application. We would have to take those on notice, sir, and revert to you with that information.

PN24

THE DEPUTY PRESIDENT: I'm not suggesting that there was anything untoward, Mr Cooke, but as you would be aware that I'm obliged to be satisfied of all these matters under the requirements of the legislation.

PN25

MR COOKE: Yes. I am aware, sir, that from my conversation at an earlier stage with Alltype Engineering that they are a relatively small employer and they carry, for want of a better way of describing it, the core crew of people around. And indeed later on one of the questions relating, I noticed, to the understanding of whether there is any people of a non-English speaking background in the workforce the company were able to advise that everyone had an adequate grasp of the English language to be able to understand what was being put before them.

PN26

THE DEPUTY PRESIDENT: Yes.

PN27

MR COOKE: But we will need to provide - seek further details on those points, sir. In relation to clause 1.7, we take on board the comments that you have made, sir, in terms of the agreement stating that it shall not be used as a precedent. Plainly that the impact of such a clause is on parties, unions or employers that are not otherwise party to the agreement except to the extent that there is an undertaking that neither the employer nor their employees will seek to take any action to have the agreement that they have made used as - have those conditions flow on, for want of a better way of describing it, to other employers or employees that may be engaged on the same site at the same time.

PN28

But indeed, part of it does really relate to the union, I guess, in the sense that they are not to use the party or the entity most likely to seek to use these things as a precedent is plainly a union of employees and that is obviously the intended impact to that clause. In relation to clause 2.3, sir, the intention in terms of the deeming of the continuous service is plainly that in the event that there is a dispute between the employee and the employer as to whether there has been a break in service that in the event that the employer and the employee not being able to resolve that matter between themselves then it is referred to the Commission. I think it could be more satisfactorily communicated that it perhaps should say it should be resolved - referred to the Commission as a dispute pursuant to the dispute settlement procedure and that would add clarity to all concerned.

PN29

THE DEPUTY PRESIDENT: And that is the intention, is it?

PN30

MR COOKE: It certainly would seem to be the intention from my perspective, sir.

PN31

THE DEPUTY PRESIDENT: Yes. Well, that would satisfy them in that respect, that answers that question as does the 1.7 comments, Mr Cooke.

PN32

MR COOKE: In relation to clause 4.5, sir, this again was an issue raised by your Chambers in e-mail communication with the Chamber of Commerce and Industry. In particular, the reference in their dispute settlement procedure there being any questions, disputes or difficulties in the initial sentence of that procedure, we would submit, sir, that that needs to be read in conjunction with the Workplace Relations Act and in the context of the agreement that it can only be subject to the agreement it refers to:

PN33

Interpretation of any dispute arising under the agreement.

PN34

And we would read that as being, as I said, sir, subject to the terms of the agreement but is not meant from our perspective, sir, to provide carriage or comfort for someone who want to raise a claim that could, for argument's sake, be an issue that has been resolved or it could be an issue that was in breach of the no extra claims commitment that the parties have entered into. We definitely read that as being only relating to issues covered by the terms of the certified agreement.

PN35

In terms of the reference under step 6 of the agreement, sir, which talks about the matter being capable of being referred to the Australian Industrial Commission and there is plainly a typographical error there because it is the Industrial Relations Commission, that is not designed, I guess - the procedure is designed to work its way through the process and most disputes in fact that arise under these documents as the Commission is aware, in fact, are resolved in such a manner and before they ever get to a Tribunal proceeding.

PN36

However, I guess there is a concern, sir, that if there was not an ability to - if the matter is not being progressed in the spirit that the dispute settlement procedure anticipates and is not. One party potentially may take some form of action that could be seen as industrial action or action that could be seen as it being in breach of the agreement that the other party is not hindered from seeking to invoke the jurisdiction of the Commission to resolve the difficulty or dispute prior to exhausting all of the steps under the agreement.

PN37

If the matter was referred to the Commission, sir, prior to each of the steps under the agreement being exhausted then on the basis that there was the potential for a party or the other party to have not complied with the agreement, we say that that doesn't remove the import and importance of the dispute settlement procedure. It would potentially reflect or could reflect adversely on that party that has not otherwise complied with the dispute settlement procedure and had threatened to take the matter outside of that agreed procedure. But at the end of the day, sir, I guess it is seen as a pro-active tool in as much as rather than wait for a disputation to occur or rather than be hamstrung by a procedure not being followed to its penultimate step that the party concerned about in breach has the right to bring the matter to this Commission earlier.

PN38

THE DEPUTY PRESIDENT: Well, there is two questions arise out of that, Mr Cooke. If it is breach, is this clause then contemplating that there can be breaches of the agreement? I mean if the agreement is certified, any industrial action would be unlawful action in any event, wouldn't it? Secondly, the very words of this procedure must be read on their ordinary meaning and what it indicates is, that at any time, anyone can refer any matter to the Commission. Now, notwithstanding the intent that you now say what it is, if that has to be the approach, why should I approve the empowerment of the Commission under such circumstances? That is really the question I'm asking because that is the ordinary meaning of the words is that anyone can refer it here at any time, relating to any matter arising out of the agreement but that is - I mean it is your agreement, not mine.

PN39

MR COOKE: We would still submit, sir, that as perhaps the lesser of two evils, the alternative of construction may be that if one said that a matter needs to be pursued through each of its steps prior to resolution of the Commission. In the event of a party not cooperating or taking precipitated action that it leaves the employer with a limited recourse other than potentially to either the Federal Court or to this jurisdiction under section 170 or potentially 166(a) and it makes the procedure more reactive than pro-active.

PN40

I would still submit, sir, that the intent is that where a dispute or a difficulty arising can be resolved without recourse to industrial action then if it is a matter of referring it to the Commission but prior each of the six steps being exhausted that still, in our view, does not diminish the intent of the clause. We take on board, sir, your comments that where industrial action occurs it could well be and prima facie probably is a breach of the agreement. However, one, I guess, has to note that in the real world that does happen, particularly unions breaching agreements and - - -

PN41

THE DEPUTY PRESIDENT: Well, you say that in their absence.

PN42

MR COOKE: I would say it in their presence, sir. It is nothing I haven't told them to their face. But it does occur, sir, it just provides another option to the employer - - -

PN43

THE DEPUTY PRESIDENT: It is not the industrial action issue that particularly concerns me, Mr Cooke, if you look at, for example, clause 6.4: Project Clothing:

PN44

A set of clothing will consist of a whole range of things.

PN45

Now, one of those things is - and one of them on there is:

PN46

The company reserves the right to incorporate the project name or logo on one free issue project clothing.

PN47

Now, what would happen if an individual, perhaps quite unreasonably, said well: I'm not going to wear that clothing because I don't like the logo and that is an issue of a matter arising under the application of the agreement and then that employee caused the matter to be referred here for resolution. If the clause gives an empowerment to the Commission, the matter comes up here, I'm then obliged to deal with it. The first question that I say is, well, hang on, if you had gone through step one and employee Joe Blow and perhaps the union will say: No, I haven't. I will say: Well, go back and go through step one and he will say: But hang on, what the dispute resolution clause says is I can bring this up here at any stage and that is what I'm doing. Can you see the issue I'm getting at?

PN48

MR COOKE: I certainly can, sir, although we would note that - - -

PN49

THE DEPUTY PRESIDENT: And it happens.

PN50

MR COOKE: We would note, sir, that that would reflect adversely upon the party exercising such a step because there is really no good reason for them to be doing so. It is not a - - -

PN51

THE DEPUTY PRESIDENT: Mr Cooke, it happens. And I have to deal with it.

PN52

MR COOKE: I'm not disputing the contention, sir. Not in the least. Nonetheless to right it without the ability to refer the matter to the Tribunal at any stage, sir, does nonetheless then hamstring, to a certain extent, the parties. Particularly a party who is seeking to comply if they are doing so as a sole effort that they could - if they were to refer the matter to the Commission prior to exhausting all six steps, even if they did so because they were concerned to deal with some form of illegal industrial action that they would in their own sense, or on their own terms, would then be breaching the agreement perhaps even - if only in response to a breach.

PN53

I guess it is also worth pointing out, sir, that in such a circumstance that where one is forced to take the matter to, particularly the Federal Court or any Superior Court, that by and large the approach adopted by most judges in such courts is that they are generally wishing to be convinced or advised that all possible steps have been taken before the specialist Industrial Tribunal before there is recourse to the Courts. If there isn't - if the dispute settlement procedure was written in such a way that limits any right until all six steps have been followed then that could act again to the advantage or to the disadvantage of the party that isn't in default. However, and really I think we can take that no further today. In relation to clause 6.2, sir: First Aid, I think the Commission read that as intended. It is simply an undertaking by the employer that whilst their employees are engaged on the site there will be a qualified First Aid person available but that person may not be or need not be an employee of Alltype Engineering Services.

PN54

It is not to be seen as an opportunity for restrictive work practise in the sense that if none of the Alltype employees hold a senior first aid certificate that work does not continue or take place until an Alltype employee, so qualified, attends. That having an employee of the company would be sufficient or having another - an employee of another subcontractor on the site would similarly sufficient. In terms of the right of entry provision, sir, it does do little more than - well it does repeat the terms of the Act. However, there is line of interpretation that an agreement that was silent on the terms of right of entry under Part IX, Division 11(a) if it didn't spell out some right of entry provisions then potentially it could be perceived to be having none rather than adopting the terms of the Act.

PN55

I'm certainly aware from discussions of the former task force, under the former state Liberal Government, the Building Industry Task Force, expressing concern at the way the right of entry provisions were written on the Worsley Expansion Site or not written and failed to pick up the benefits available and the protocol set out by the Workplace Relations Act. I think the approach of putting it in the agreement, sir, maybe seen as something of a belts and braces but if it is simply re-stating the provisions of the Act, I don't see any draw back in that, as certainly we would suggest, sir, an industrial matter. Similarly, in clause 7.2, sir - - -

PN56

THE DEPUTY PRESIDENT: Is this an agreement? This isn't an LS is it? It is an LJ.

PN57

MR COOKE: No, sir. It is an LJ.

PN58

THE DEPUTY PRESIDENT: Yes. You see the point I raise, Mr Cooke, is that under Division 1 of Part VIB, is outlined the functions of the Commission and when agreements can be certified. Division 2 outlines the making of agreements and you will notice in 170LI(1) for an application to be made there must be an agreement in writing about matters pertaining to the relationship and then identifies it. Now, some agreements that have had provisions that don't pertain to the relationship have been declined to be certified on the basis of the literal interpretation of Division 2.

PN59

The line saying: Well, if it doesn't pertain then an application hasn't been validly made, therefore there is nothing before the Commission to certify. So, that is the reason I raise it because on that line of argument an application can't be made. And this right of entry presumably doesn't pertain to the, or may not, not presumably - may not pertain to the employer and the employees to be party to the agreement. It may pertain to the union and the employer then if LI doesn't come on within the ambit of LI, can an agreement be certified because an application can't be made? That is the reason I raise it.

PN60

MR COOKE: I appreciate that, sir, although while we would note that we still perceive that the matter does pertain to a relationship between the employer and the employee in once sense that if although the agreement excludes the operation of other awards and awards is not defined so one can read that as broadly as federal and state awards. In the absence of a provision that establishes that the right of entry provisions under the Workplace Relations Act apply then silence or absence of such a provision there could be the confusion as to whether or not other provisions of State legislation dealing with right of entry might otherwise apply.

PN61

I think it is or we would submit, sir, that it is a legitimate exercise of the powers between the employer and the employees concerned that they, in the absence of any award provision applying, made a decision as to which right of entry regime they would choose to be subject to and to that extent, although the right of entry is exercised by third party being an industrial union of workers, it would nonetheless - it has an impact of the employers operations and potentially an impact on the work of employees. I think it is - permissible or it relates to their relationship that they are choosing a federal set of regulations relating to right of entry rather than a state set of regulations. I guess they may have taken them - - -

PN62

THE DEPUTY PRESIDENT: I can see what the intent is. I'm asking the question, to allow that intent to be in the agreement if it doesn't pertain to the relationship, is it certifiable? That is the only question I'm asking.

PN63

MR COOKE: If it didn't, sir, then I would submit that potentially it wouldn't be certifiable although we submit that strongly it does relate to the relationship between the employer and the employees. To move on, sir, in clause 7.2 of the agreement, the reference to the job representative clause, we would submit that that again relates to matters of an industrial nature and should be read in that vein. It says that they are to:

PN64

Undertake matters related to the employees of the company when so required by those employees and in accordance with the procedure set out in the agreement.

PN65

The dispute settlement procedure. We certainly do not read that and do not believe it was meant to be interpreted as to go broader than matters pertaining to the employer/employee relationship.

PN66

THE DEPUTY PRESIDENT: Yes. That reinforces the role in the procedure is what you are saying?

PN67

MR COOKE: Yes, sir. But given as I said, it pertains to only being able to do so to matters related to employees of the company and only when required to do, sir, by those employees. We say that that provides a sufficient nexus to the employer/employee relationship and by implication a degree of restraint on the ambit that is open. Subject to any further comments from the Bench that would conclude our submissions. We would undertake to talk to our member and deal with the issues of the date on which the meeting that explain the agreement to the employee was held, when that was, who attended and who it was that made the explanation and if it please the Commission.

PN68

THE DEPUTY PRESIDENT: Yes. Thank you, Mr Cooke. I will adjourn this matter but go off record for the moment.

ADJOURNED INDEFINITELY [1.39pm]