C2003/5055, Transcript of Proceedings [2003] AIRCTrans 4429 (3 October 2003)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 4, 179 Queen St MELBOURNE Vic 3000
(GPO Box 1114 MELBOURNE Vic 3001)
Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS


O/N 4749
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER LEWIN

C2003/5055

PIONEER CONSTRUCTION
MATERIALS PTY LIMITED

and

TRANSPORT WORKERS
UNION OF AUSTRALIA

Notification pursuant to section 99 of the Act
of a dispute re the introduction by the company
of random drug and alcohol testing of its
employees in Victoria

MELBOURNE

10.40 AM, THURSDAY, 18 SEPTEMBER 2003

PN1

MR C. SMALE: I seek leave to appear as counsel in this matter. With me is MR M. BUTTERWORTH of Pioneer Construction Materials Pty Limited.

PN2

MR P. EARLE: I represent the Transport Workers Union of Australia.

PN3

MR M. EAGLES: We seek leave to appear. I am with the Australian Workers Union.

PN4

THE COMMISSIONER: Is there any objection to, first of all, the application for leave on Mr Smale's part, to appear in this case?

PN5

MR EARLE: Yes, Commissioner, as a matter of course, we have a policy that we do object to leave of counsel. However, if there is no application to the AWU being involved, then I suppose we will - - -

PN6

THE COMMISSIONER: Well, I don't think we can actually traffic in rights of representation. There are certain grounds upon which the leave can be granted that are set out in the Act and that is where I have to have consideration form but you do object I take it?

PN7

MR EARLE: We do, as a matter of course, Commissioner.

PN8

THE COMMISSIONER: All right. Mr Smale.

PN9

MR SMALE: Thank you, sir. Although on the face of it this may appear to be a relatively straightforward 99 notification, in fact, it has the potential to be a legal minefield because of the issuing last week by the TWU of a notice under section 170MI, initiation of a bargaining period, in relation, we say, to matters that are properly covered under the agreement which was certified only recently and of course that raises all of the tortuous implications of the Emwest decision. Now, those are not matters that will be, hopefully, debated here today but they are matters that are - - -

PN10

THE COMMISSIONER: Form part of the picture.

PN11

MR SMALE: Unless progress is made, will come very much to the fore.

PN12

THE COMMISSIONER: Is that right, Mr Earle?

PN13

MR EARLE: Yes, Commissioner. If you like, I will hand up our application which I think the company has already got one?

PN14

MR SMALE: Yes, that is so.

PN15

THE COMMISSIONER: Yes. Well, it does look as if it does have some complexity, Mr Earle.

PN16

MR EARLE: Yes, Commissioner, it does have a complication to it. I am aware of that but - - -

PN17

THE COMMISSIONER: Well, there is the question of to what extent the subject is about the application of the terms of a certified agreement that is the first point. The second is what, if any, jurisdiction the Commission might have to deal with the matter having regard to the fact that there exists a certified agreement. The third point might be to what extent the notice initiating the bargaining period impinges upon the exercise of any jurisdictional power that might arise under this section 99 notification. It seems to me quite a complex suite of technical issues about the operation of the legislation, amongst other things.

PN18

MR EARLE: Yes, Commissioner. Look, if I can, our primary intent is to have the company consult. There is a policy that they are trying to implement across the State. It involves not only TWU members but also AWU members and arguably clerks and every employees within the Pioneer structure. We would argue that - - -

PN19

THE COMMISSIONER: So what you are seeking may involve some consideration of what powers the Commission has to direct that the consultation occur in the circumstances?

PN20

MR EARLE: Yes, Commissioner, because obviously this is the company's application under section 99 - - -

PN21

THE COMMISSIONER: That is right. If you seek that I require or compel or recommend or by some other means seek to influence or ensure that the company consults with you about certain matters on certain terms, then that may involve the exercise of some sort of a power under the Act and the extent to which I am able to do that may be conditioned by considerations relating to the existence of the certified agreement and the notice initiating a bargaining period which you have just tendered.

PN22

MR EARLE: I can only reiterate, Commissioner, that our primary intent was that the Transport Workers Union's position is that we would support a safe working environment. We have clear objection in the company's process of communication and what they consider - - -

PN23

THE COMMISSIONER: Yes, but what I think you are addressing now is your position, if you like, in relation to the issues that are the subject of the notification. I am concentrating on whether or not I should grant leave to the company to be represented by counsel and I am really just discussing with you the possibility that there are technical issues about the operation of the legislation which might warrant them being so represented. You can simply note that - I don't expect you to assume the position in making the decision as to whether they should be granted leave or not. Mr Smale, why do these issues arise today?

PN24

MR SMALE: Well, Commissioner, they potentially arise because one of the avenues open to you today is to act under the disputes resolution clause of the EBA and to commence the disputes resolution procedure which is a private arbitration in the Commission.

PN25

THE COMMISSIONER: Amongst other possibilities.

PN26

MR SMALE: Yes.

PN27

THE COMMISSIONER: But that may not be objected to.

PN28

MR SMALE: Yes.

PN29

THE COMMISSIONER: In which case the question arises as to why you should be, or why the company I should say, should be granted leave to be represented by counsel if there is no obstacle to the application under the disputes settlement procedure provided for in the agreement.

PN30

MR SMALE: Yes. Well, at this stage, we don't know whether there will or won't be.

PN31

THE COMMISSIONER: There is or there isn't. It might be convenient to find out. So essentially what you are proposing is that the subject of fitness for duty, drug and alcohol testing, or whatever description one uses, is a matter that is susceptible to the disputes settlement procedure in the relevant agreement?

PN32

MR SMALE: Yes.

PN33

THE COMMISSIONER: All right. We will just find out whether or not - - -

PN34

MR SMALE: And that would depend upon whether or not - well, it may depend upon whether or not drug and alcohol testing was within the ambit of the agreement so as to be caught by the disputes resolution procedure.

PN35

THE COMMISSIONER: Yes. And in a way I think it is clearly inferred from that, that any conclusion that I reach about that may have implications for the status of the bargaining period.

PN36

MR SMALE: Yes, indirectly, yes.

PN37

THE COMMISSIONER: Yes. Mr Earle, I think that there are some clear and some not so clear technical legal issues some of which are quite significant to your organisation in terms of the status of the bargaining period that you have initiated and, under those circumstances, I am inclined to grant leave to the company to be represented by counsel.

PN38

MR EARLE: Commissioner, if I may, I understand you have made your decision but we would argue that the introduction of the fitness for work program is not part of the EBA process.

PN39

THE COMMISSIONER: Well, that is exactly why I have considered that it is appropriate that the company be represented by counsel because they want to argue that it is and that is a technical legal question.

PN40

MR EARLE: Thanks, Commissioner.

PN41

THE COMMISSIONER: Now, Mr Smale, is there any objection to the intervention of the AWU?

PN42

MR SMALE: No, Commissioner. Leave is granted to the AWU to intervene.

PN43

MR EAGLES: Thank you, Commissioner.

PN44

THE COMMISSIONER: Yes, well, it seems as if we do have a threshold argument as to whether or not issues concerning fitness for duty, drug and alcohol testing are matters which can be determined by the Commission pursuant to the relevant disputes settlement procedures of the agreement and section 170LW of the Workplace Relations Act. Is that right, in your view, Mr Smale?

PN45

MR SMALE: Yes, sir. And it may - - -

PN46

THE COMMISSIONER: And in yours too, Mr Earle?

PN47

MR EARLE: Yes, Commissioner.

PN48

THE COMMISSIONER: So you say - let me be clear - that to the extent that the company would submit matters of that nature to the Commission in accordance with the disputes settlement procedure, it would be acting outside the scope of the agreement?

PN49

MR EARLE: Yes, Commissioner, on the grounds that this policy or this proposed policy is going to have application beyond the extent of the EBA to apply to award employees, if not - I am talking beyond the Transport Workers Union, but also to other union members, clerical staff that we have not had any consultation with at this stage.

PN50

THE COMMISSIONER: All right. What is the AWUs view on this?

PN51

MR EAGLES: Your Honour, we concur with my colleague that this issue has not been dealt with in the EBA. It has recently been signed so the company had plenty of opportunities to raise and introduce it and we would see that it is well out of the scope of the application of the agreement.

PN52

THE COMMISSIONER: All right. Mr Smale, could you give me the summary outline of the basis upon which you say the Commission can deal with the subject under the agreement, please.

PN53

MR SMALE: Yes, sir. Under the agreement, clause 35 provides for the settlement of disputes and there is a number of subparagraphs, the first of which sets out the various steps and stages in the disputes resolution process, culminating with a (v):

PN54

If the matter is still not settled, it shall be submitted to a member of the Australian Industrial Relations Commission whose decision shall, subject to any appeal in accordance with the Act, be final and shall be accepted by the parties.

PN55

Now, the question that arises as to what matters can fall within the scope of the disputes settlement clause, and we say that that is defined, or settled rather, in paragraph (d) of clause 35 where it says:

PN56

This settlement disputes procedure will apply to any dispute or claim whether it arises out of the operation of this agreement or not, as to the wages or conditions of employment of employees employed by the company.

PN57

Now, clearly - - -

PN58

THE COMMISSIONER: Yes. Well, I think the point that you are making is a very vexed one. It is not as if I have not had to consider it before. In fact I have made some decisions about this subject in fact affecting the Transport Workers Union some time ago. But the obvious difficulty that needs to be resolved is whether or not section 170LW can be construed in the manner that you would need to rely on for that submission to be successful, isn't that right?

PN59

MR SMALE: Yes.

PN60

THE COMMISSIONER: In other words, what you have to do is to satisfy me that even though there is no explicit term of the agreement regulating the subject matter of the dispute that subclause (d) of the disputes settlement procedure is a special code about industrial disputes generally and, as such, any dispute between the parties is a dispute arising under the agreement and is about the application of the disputes settlement procedures of the agreement. Is that right?

PN61

MR SMALE: Yes.

PN62

THE COMMISSIONER: Now, you appreciate that it could be suggested that that argument really pulls itself up by its boot straps so to speak and it is a rather crucial issue for the operation of the legislation because on one interpretation of the Act the only disputes that the parties can empower the Commission to settle by virtue of a disputes settlement procedure are those in respect of which an agreement speaks, and the other view is that if the parties chose to they could make an agreement that they would settle any dispute between them by some procedure which was set out in a certified agreement.

PN63

Now, those two propositions are arguable and it may come down to what the intention of the legislation was. Whether the intention was that wide as to admit parties making generalised agreements about the way in which disputes would be settled. So this is a matter of some considerable significance to the jurisdiction and powers of the Commission and under those circumstances I think I would require the jurisdictional argument to be made out in detail, to refer to the relevant authorities on the subject because as you know probably the matter has been the subject of some considerable consideration by the High Court and by Full Benches of the Commission in a number of cases.

PN64

I am sure that the specific point here at issue has been dealt with and certainly not to conclusion, but I would not be making a casual determination on this subject. So I think you need to make the submission in writing for a start, but it is within jurisdiction because there is nothing in the agreement that explicitly sets out regulatory terms agreed between the parties in relation to these issues is there?

PN65

MR SMALE: No, sir. It may be, sir, that before that step is taken that the unions may agree to, if you would consent too, there being a conference without prejudice to the claims and counter claims in relation to this point - in other words that it be reserved for the time being in the hope that discussion may resolve many, if not all, of the substantive matters.

PN66

THE COMMISSIONER: Well, of course, if the union is correct then the section 99 notification would seem to empower the Commission to conciliate.

PN67

MR SMALE: Yes.

PN68

THE COMMISSIONER: In other words, the union's position is that it is not a matter dealt with by the agreement, and accordingly it is susceptible to a section 99 notification. There is no inhibition on conciliation even if the bargaining period is presumed to be valid. So I guess that is what you are suggesting, is it not, that there be conciliation within the general jurisdiction of the Commission without prejudice to your client's position that the matter could be dealt with under section 170LW.

PN69

MR SMALE: Yes, and without prejudice to our contention that any industrial action notified pursuant to the bargaining period notice may be not validly called.

PN70

THE COMMISSIONER: I am not dealing with that.

PN71

MR SMALE: No.

PN72

THE COMMISSIONER: That is not before me. What do you say to that, Mr Earle, that if you are correct and there is no basis upon which the disputes settlement procedure of the agreement can be mobilised to enable the Commission to deal with this matter the section 99 notification clothe the Commission with its conciliation powers in relation to it?

PN73

MR EARLE: Commissioner, I can only draw on - the application of section 99 came about by the introduction or the attempted introduction by the company to introduce drug and alcohol testing at an award plant. What is being cited here today is the EBA or what has been - - -

PN74

THE COMMISSIONER: Well, we have moved away from the question of the agreement and the disputes settlement procedure. What we are now discussing is whether or not you have a view about the general powers of the Commission under section 99 to deal with the matter by way of conciliation. You say it can't be dealt with under the disputes settlement procedure of the agreement. That is your position isn't it?

PN75

MR EARLE: Yes, Commissioner.

PN76

THE COMMISSIONER: Well, let us assume that is correct. Does it follow, in your view, that there is any obstacle to the matter being dealt with under the general powers of the Commission in section 111?

PN77

MR EARLE: The short answer is no. I think some balance needs to come into it and if the company maintains its position that it is not really prepared to move on any of this, then we are going to need a - - -

PN78

THE COMMISSIONER: Well, I am just concerned to know what your position is at the moment. What should be done is another question, but if you had some jurisdictional objection to the Commission dealing with it by conciliation under section 99, I needed to know that.

PN79

MR EARLE: Commissioner, during our recent EBA discussions the company was adamant that it would not have an EBA applicable to the entire state yet we find ourselves in this position under the application that we have got that that is in actual fact where we want to go. If not, for all the terms and conditions of employment, if not for these conditions that are going to arise are not agreed to from time to time and we are seriously concerned that the company has a set of standards that it tries to introduce or has corporate policy, if you like, but it has - - -

PN80

THE COMMISSIONER: Mr Earle, look I am just trying to sort out my jurisdictional powers at the moment not the merits of the matter. I gather, from what you are saying to me, is that you don't have any jurisdictional objection to the Commission conducting conciliation proceedings under section 99 in relation to the subject matter of the notification, which is the drug and alcohol policy and the fitness for duty?

PN81

MR EARLE: With respect, Commissioner, I think we would have to - in terms of the initiation of bargaining period, we would appreciate the Commission's assistance but not under section 99.

PN82

THE COMMISSIONER: All right. So you are saying that the conciliation proceedings should be conducted on the basis of the notice initiating the bargaining period, is that right?

PN83

MR EARLE: Yes, Commissioner.

PN84

THE COMMISSIONER: All right. Well, that is what I needed to know. As I say, what I am trying to do is sort out my jurisdictional powers as I anticipate that that may raise some issues or concerns for the company but, nevertheless - does the AWU have any view on that?

PN85

MR EAGLES: Commissioner, we obviously have not initiated a bargaining period so the argument is not there for us but what we would seek from the company is consultation on these matters before they go any further. They have given a commitment to the TWU to cease all testing. We would seek similar and we would seek some discussion and we would be happy to use the conciliatory power of the Commission to assist us in that matter.

PN86

THE COMMISSIONER: Mr Smale, are you happy for the conciliation to proceed on the basis of the notice initiating the bargaining period?

PN87

MR SMALE: No, sir.

PN88

THE COMMISSIONER: I anticipated you would not because you would be making a concession that the bargaining period is valid.

PN89

MR SMALE: Commissioner, I wonder if it would be possible for me to have a discussion with the two union representatives for about five minutes - - -

PN90

THE COMMISSIONER: Yes.

PN91

MR SMALE: - - - and then we may be able to find some way forward.

PN92

THE COMMISSIONER: Very well. Let us do that.

SHORT ADJOURNMENT [11.03am]

RESUMED [11.21am]

PN93

THE COMMISSIONER: Mr Smale.

PN94

MR SMALE: Thank you, sir. Commissioner, thank you for allowing us that time. The upshot of the discussions is that merely attending here this morning has assisted the parties to fix upon a way forward and, in essence, that is going to be that the company will allow various representatives in the workforce to meet together privately over the next couple of weeks. Then there will be a meeting with the company, at least one, the first being 15 October. That is, it may not go ahead on that exact date but that is the timetable, and we ask you if it is possible to have a report back date of 27 October or in the week commencing 27 October?

PN95

THE COMMISSIONER: Yes. Well, let us make it the 28th at 10.30.

PN96

MR SMALE: Now, this procedure and the report back has been agreed upon without prejudice to any of the issues of the parties positions on those issues canvassed earlier and if there are still outstanding issues on 27 October, the way ahead will have to be - and the role that you may be able to play in it will have to be determined at that time.

PN97

THE COMMISSIONER: Very well. Is that right?

PN98

MR EARLE: Yes, Commissioner. There was just a couple of outstanding matters of the status quo in terms of testing.

PN99

MR SMALE: Yes, in the notice itself, Commissioner, you will have seen that is says in paragraph 5 that the company the union the testing program will be suspended until further notice. That is the position that applies to the testing program throughout Victoria in relation to all employees.

PN100

THE COMMISSIONER: Yes, and will apply until that date.

PN101

MR SMALE: Yes.

PN102

THE COMMISSIONER: Very well. Thank you. Well, is that agreed between the parties?

PN103

MR EARLE: Yes, Commissioner.

PN104

MR SMALE: Yes, Commissioner.

PN105

THE COMMISSIONER: And for the AWU?

PN106

MR EAGLES: Yes, Commissioner.

PN107

THE COMMISSIONER: All right. Well, I will note that agreement and direct that the parties comply with the agreement as a part of these proceedings. I will adjourn the proceedings until 10.30 am on the 28th. However, I would appreciate it if there is to be any issue agitated on the 28th about the operation of the disputes settlement procedure that I be advised beforehand.

PN108

MR SMALE: Yes. Thank you.

PN109

THE COMMISSIONER: Thank you.

ADJOURNED UNTIL TUESDAY, 28 OCTOBER 2003 [11.24am]