AG2003/7671, Transcript of Proceedings [2003] AIRCTrans 4677 (23 October 2003)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER RICHARDS

AG2003/7671

APPLICATION FOR CERTIFICATION OF AGREEMENT

Application under Section 170LJ of the Act by
Transport Workers' Union of Australia and Another
for certification of the Oceania Aviation Services
Pty Ltd Certified Agreement 2003

BRISBANE

10.05 AM, FRIDAY, 3 OCTOBER 2003

PN1

THE COMMISSIONER: Good morning, everyone. Please take a seat. Perhaps I'd best take appearances and see who I have as parties to this agreement.

PN2

MR T. COOMBS: Yes. If it pleases the Commission, Trevor Coombs, from QCCI. Commissioner, with me I have MIKE YOULTON, the General Manager of Oceania Aviation.

PN3

THE COMMISSIONER: Thanks, Mr Coombs.

PN4

MR D. PRIOR: And just a slight change of appearance for the Transport Workers' Union. My name is Prior, initial D., industrial officer for the Transport Workers' Union of Australia, Queensland Branch, and with me I have MARK WALKER, TWU organiser.

PN5

THE COMMISSIONER: Good. Thanks, Mr Prior.

PN6

MR J. MARTIN: And if it please the Commission, my name is Martin. I appear for the Australian Municipal, Administrative, Clerical and Services Union.

PN7

THE COMMISSIONER: Good. Thanks very much, Mr Martin. Mr Coombs, is it your intention to lead off?

PN8

MR COOMBS: Yes, if you wish, Commissioner.

PN9

THE COMMISSIONER: Good, thank you.

PN10

MR COOMBS: Commissioner, the matter before you today is an application for certification of agreement in terms of Section 170LJ of the Workplace Relations Act 1996 to cover the business operations of Oceania Aviation Proprietary Limited. In finally bringing this matter before you, Commissioner, there has been a number of obstacles which you are fully aware of. Firstly, the parties, namely, the TWU and the company, had applied for certification under Section 170LL. Unfortunately, that approach was considered outside of the intent and application of Section 170LL, and accordingly the agreement was not certified.

PN11

The company then proceeded to make an agreement in almost identical terms with the TWU in terms of Section 170LJ. The procedural requirements of that section were followed in that the agreement was approved by the valid majority of employees; at least 14 days were given to the employees to consider the document before they voted; and the terms of the agreement were explained to the employees and the opportunity given to ask questions on that document.

PN12

Commissioner, the statutory declarations signed by both the company and the TWU support that position, together with meeting the requirements of Section 170LT. In the meantime, Commissioner, you would be aware that the ASU had filed a notification seeking the assistance of the Commission in terms of Section 170NA. At that conference, the ASU had clearly indicated that all the union wanted was to be made a formal party to the document and the intention was clearly not to open up the agreement for further negotiations.

PN13

Based on that clear understanding and that commitment, the company agreed to that position. While it is somewhat difficult to now change the contents of an agreed document, previous decisions of this Commission allow parties to make amendments when those amendments do not hold to the spirit of the original negotiations. It is our contention, Commissioner, that altering the parties bound clause of this agreement to include the ASU does not alter in any significant way the spirit of those negotiations. You will recall, Commissioner, that the ASU had been invited to be a party to the original discussions which started off in the beginning of this year.

PN14

Accordingly, I would like to hand up to the Commission four copies of the amended parties bound clause, which does include the ASU in the parties bound agreement, Commissioner. Commissioner, I know that the ASU has been concerned during the week regarding the lack, for the want of a word, of the name in other clauses. May I say, Commissioner - and I made this very clear to you last week - that the company is reluctant to make further alteration but gives an assurance, if that is all it needed to do today, to the ASU that where a union is identified in the agreement the clear intention referred to covers both of the unions concerned, that is, the TWU and the ASU.

PN15

I hope this now finalises all outstanding matters and all requirements of the Commission. I now, on behalf of the company, commend the certification of the agreement to you, Commissioner, to allow the agreement to be made with the TWU and ASU to cover the company's operations. I hope that the cordial relationships that now have existed and developed between all the parties will help grow the company's business in other parts of the country as well. Thank you, Commissioner.

PN16

THE COMMISSIONER: Thanks, Mr Coombs. Mr Prior.

PN17

MR PRIOR: Thank you, Commissioner. Unfortunately, I was not present at the previous hearing in relation to this matter, and we understand that a 170NA application proceeded last Friday. The TWUs position hasn't changed since the preceding conference that was conducted under the application as it was presented initially. We understand at that particular conference that the ASU sought to intervene under 42 and 43. Given what has happened in relation to the NA application, we still don't concede our position in relation to objecting to them being a party to the proceedings, but we certainly understand that - in the position that the ASU has provided, we understand some form of bargaining agent request form and/or a person in the workplace who they warrant has requested that they represent them.

PN18

We understand that is the position as at last Friday. We would say, if that was the case, that could have been provided a lot earlier to the parties, and perhaps the argument that was being had over the last week could have been had a lot earlier. However, that didn't take place. And we understand that in that regard their intention is to appear today and be bound by the agreement and that is their only intention in relation to these proceedings, so our position is - and it's been made very clear to me in my instructions to say that we still oppose their being attached to the agreement.

PN19

However, we understand that on the basis that they have provided valid evidence of a member in the workplace to the Commission, and if the Commission is satisfied that that is the case, we believe on that basis, if the Commission intends to make them bound to be a party on that basis, they will be a party to the agreement. Beyond that, we would expect that there will be no further amendment and no further interruption to the processing of this agreement.

PN20

THE COMMISSIONER: Yes. Well, let's hear from Mr Martin.

PN21

MR MARTIN: Yes, Commissioner. Without wanting to enter into arguments as to who did what when, because I don't think that would be terribly constructive, that is the intention. The ASU is to be bound by the certified agreement. The amendment that Mr Coombs has provided you certainly does that. We also have - when I say "we", the Branch Secretary has signed a signatory page as well, Commissioner. That would overcome any objection that we might have and we would thereby consent to the certification of the agreement.

PN22

Commissioner, just in terms of what Mr Coombs has put to you, I would concur with the fact of the ASU being bound by the agreement does not vary its terms in any way that would materially affect the parties. Therefore, we would submit that the agreement as amended ought be certified. If it please the Commission.

PN23

THE COMMISSIONER: Thanks. Mr Prior has raised an issue which I need to explore. Mr Prior, if I read you correctly, if I heard your submission correctly, you're telling me that it's not possible for the ASU to be a party to this agreement other than if they provide the Commission evidence of a member at the workplace having expressly requested their role in negotiations.

PN24

MR PRIOR: Certainly, Commissioner, because I can safely say that in these types of proceedings we've been on the receiving end of the same scenario. Otherwise, intervention is a very short brief interruption in the proceedings, and we just would want confirmation that that was what was the outcome of the 170NA application, if indeed that was the outcome.

PN25

THE COMMISSIONER: Mr Martin.

PN26

MR MARTIN: Well, Commissioner, in terms of those matters, if I can take it one step at a time. I had intended to try and deal with this in a constructive manner, but that appears not to be an option that's available. I would say for the record that we did send to the Branch Secretary of the TWU a letter on 1 October saying we understand that the agreement has been amended. That is the first issue that needs to be dealt with, as to whether the ASU is a party or not. Any of these other matters are quite incidental to that.

PN27

This is an LJ agreement. A number of the tests that Mr Prior is applying are germane to an LK agreement, so none of those things need to be dealt with at this particular issue. If, however, they are required, then, that would require a further proceeding. We're not in a position to provide that at this stage. We did not know that we would have to jump through that hoop.

PN28

Commissioner, in terms of the NA proceedings that were before you, there was evidence of Ms Bliss that clearly indicated that we did have a member, at least one member, at the site, but that shouldn't come as a surprise to the TWU or Oceania. The ASU - - -

PN29

THE COMMISSIONER: We had extensive - we didn't have extensive, but we had discussions in respect of the NA(1) application in relation to the type of work that is carried out at the enterprise which your eligibility rules extend to. But that said, Mr Prior is raising an issue that, for purposes of the ASU being a party to this - and that's what it is; it's being a party to this agreement. We can't adopt the language of 43(2)(a) and (b) for this because that goes to Section 170LK(4) matters. What I have before me is an application for certification of the agreement where there are purportedly three parties.

PN30

MR MARTIN: Yes.

PN31

THE COMMISSIONER: The question is: are all three parties validly able to be parties to that agreement. Now, quite clearly, Oceania Services Proprietary Limited is the employer party; quite clearly and demonstrably from the manner in which the application has proceeded, the TWU are a party. The issue that Mr Prior seems to want to ventilate is, in that context of an LJ application, is the ASU properly a party as well. Now, perhaps, Mr Prior, if you want to explain to me a bit more about what point you're trying to make.

PN32

MR PRIOR: Yes, Commissioner. It's just that we didn't attend on the 170NA and we just wanted to satisfy ourselves that, if the employer has agreed demonstratively to the ASU being bound, that that was on the basis that they provided valid evidence of membership of at least one person in the workplace.

PN33

THE COMMISSIONER: Well, perhaps if I can hear from Mr Coombs on this.

PN34

MR COOMBS: Yes, Commissioner. At the NA conference, you would be aware that, as I recall, that we were aware that the ASU - and when I look at LJ requirements, one is that do they have a member and secondly do they have constitutional coverage, and certainly during the discussions in terms of making the agreement they did have a member; they had a delegate on site. And certainly in terms of that, and certainly, on my understanding, in terms of the coverage, they have got constitutional coverage to cover that, and certainly in terms of does the company object to that, the answer is "no" to them being included.

PN35

THE COMMISSIONER: Mr Prior.

PN36

MR PRIOR: Thank you, Commissioner. Well, they were the points that we needed to get clear.

PN37

THE COMMISSIONER: Good. Thanks, Mr Prior. For this particular issue about who are the parties to the agreement, this matter is now settled. Look, we need not go into the content of the agreement as such. I have read the agreement and the statutory declarations that have been provided, and I am satisfied that the agreement meets the requirements of the Act. The issue that needs to be dealt with, however, is the mechanism by which the ASU effectively becomes a party given that it has become a party after such time as the agreement was made.

PN38

Now, I have to say that some thought has to be given to how this actually occurs. I have handed up to me an amended scoping clause for the agreement. That is clause 4 of the agreement, which includes a reference not just to the TWU as being a union party but to the ASU as being a union party as well, in clause 4(b) of the amended scoping clause. I have also received an additional signature page to the agreement whereby the ASU has officially signed the agreement for purposes of being a party bound.

PN39

The issues that still emerge, however, are the fact that the - if I remember, I think we discussed it at the time of the NA(1) proceedings - that the dispute resolution clause itself refers to "the union," and if I recall from memory, the definitions clause of the agreement referred to the union being the TWU. I think I'm correct there.

PN40

MR MARTIN: Yes, you are correct.

PN41

THE COMMISSIONER: So we're doing a number of things here. First of all, we're varying the agreement after such time as it is made for purposes of the inclusion of an amended scoping clause and a changed signature page, and as a consequence of that we're also amending effectively the meaning of the definition of "union" in clause 2, which also impacts elsewhere in the agreement, and off the top of my head I know that it impacts most self-evidently in who is the union for purposes of the operation of the grievance clause. It may also feasibly arise in any constitution of any other committees or consultative arrangements and so on as well if they are expressly stated.

PN42

Now, what I'm getting to is that, though I believe from our discussions the other day in the proceedings under Section 170NA(1) of the Act that our discussions about the interpretation of the grievance clause were such that the union could remain "the union" for purpose of the definition in clause 2, the ASU could nonetheless assume a role by virtue of being another representative. Now, I must say that I'm not comfortable with that because I think this is quite clearly - well, it's not quite clear. As a matter of fact, this is an agreement under Section 170LJ. The ASU are a union party to this agreement, along with the TWU.

PN43

As a consequence, I would prefer to see an amendment to the definition of "union" in clause 2 to embrace not just the TWU but also the ASU to put all matters beyond doubt as to who the union is. Now, I can quite see perturbed looks on people's faces. I think there is a method of dealing with this from the bench without additional proceedings, and if I can explain. Sorry?

PN44

MR WALKER: 2.7 actually does include the ASU.

PN45

THE COMMISSIONER: Oh, is there - - -

PN46

MR WALKER: It's got:

PN47

Union means the Transport Workers' Union of Australia or Australian Municipal, Administrative, Clerical - - -

PN48

THE COMMISSIONER: Sorry. Has the definitions clause been altered as well, has it?

PN49

MR WALKER: Yes, it looks like it.

PN50

MR COOMBS: Yes.

PN51

THE COMMISSIONER: Oh, sorry. I wasn't aware the definitions clause had been amended.

PN52

MR MARTIN: That certainly explained my expression.

PN53

THE COMMISSIONER: No, that's okay. That solves that mechanical process, but it still doesn't solve the - what I was getting to is how do we deal with these amendments to the agreement on the fly, as it were. Now, this is where I'm going to have to involve not just the two union representatives but - Mr Coombs, I understand you have employee representatives with you who are - - -

PN54

MR COOMBS: Yes, I do.

PN55

THE COMMISSIONER: Now, I'll explain how I think we can do this so that the agreement can be validly certified. The history of this tends to work like this. There was a decision in Atlas Steels Full Bench some 18 months ago now, and in the very last paragraph of that Full Bench decision the Full Bench determined that a substantial amendment to an agreement could not be made by the Commission at the time of certification or after such time as the agreement had been made.

PN56

The reason the Full Bench argued that that was the case is because a substantive amendment was not possible for reason that the agreement was not the property, as it were, of the Commission but it was the property, as it is, of the parties who make the agreement, and particularly the valid majority who provide ultimately the foundation to that agreement for purposes of that agreement being a valid application. The Full Bench then went on to say that:

PN57

If an amendment to an agreement after such time as it is made is of a substantial nature -

PN58

and I'm of the view that the incorporation of an additional party is of a substantial nature, and it is my view that it is necessary to return in one way or another - and I'll come to this shortly - to the foundation of the agreement, that is, the valid majority for purposes of determining that, indeed, there has been approval of the amendments that are proposed to the agreement, and these are amendments that have been made after such time as the agreement was made.

PN59

Now, there is a subsequent Full Bench dealing with a multiple-employer agreement, and I'd attempt to be smart and tell you what its name is but it's completely escaped me at the moment, though I do know that it did deal with the grocery sector in some way. The issue before the Full Bench in respect of the multiple-employer agreement was that an agreement lacked a nominal expiry date and they wanted to approve the agreement but couldn't do so until such time as the parties had been able to indicate to the Full Bench that the valid majority would have or did validly approve the amendment.

PN60

And for purposes of satisfying itself that that had in fact taken place, the certification of that agreement took place by the Full Bench on the basis that it accepted undertakings under Section 170LV(2) of the Act that the valid majority had been consulted in a particular form that was known to the parties to that agreement and there was an indication by the parties to that agreement that the valid majority had demonstrated no reluctance in approving the amendment that had been proposed.

PN61

Now, on the basis of that line of authorities, it's possible that the Commission could approve the amendments to the agreement that are now sought by way of the amended certified agreement that has been presented, which incorporates an amendment to the definitions clause at 2.7. It also incorporates an additional change - it includes, sorry, an amendment to the scope clause at clause 4, which now includes the ASU, and it also includes a new signatory page completed by the ASU in respect of an additional party bound. I therefore have a number of amendments to this agreement that are before me.

PN62

Now, in view of that line of authorities mentioned, I consider that it's possible for the Commission to lawfully proceed to certify the amended certified agreement if I am satisfied of various things. I therefore would need to be expressly satisfied by a statement from the TWU that, in its view, it is satisfied as to amendments that have been presented, that they indeed accept and approve of the amendments, and similarly I would seek the same view from the employer party to the agreement. I take it as granted, Mr Martin, that you accept the amendments - - -

PN63

MR MARTIN: Yes, Commissioner.

PN64

THE COMMISSIONER: - - - and I will not seek your formal views as a consequence. But I also need to tap, as it were, the representatives of the valid majority as they are here today for purposes of further satisfying me that, if this certified agreement had been re-presented to the workforce, the valid majority would have existed for these amendments irrespective.

PN65

So what I'm going to ask you to do - after I receive comment from Mr Prior and yourself, Mr Coombs, I will ask you perhaps to bring forward various representatives, employee representatives, that you have here today, and you can explain what their official role was if they had such a role, or what representative role they have, and I will seek their views as to the formal question as to whether or not in their view as representatives - and I presume they are, or representative of the body of opinion of the valid majority - that if the agreement, had it been returned or was returned to the valid majority, then, in their view, there would have been no changes to that formal approval that was given at that time and in their view the amendments that are advanced today would be acceptable to the workforce at the site to be covered by this agreement.

PN66

Now, first of all, if I can proceed through perhaps Mr Prior, then go to Mr Coombs on those two matters I first of all mentioned, then, Mr Coombs, if you can then perhaps lead me through your various employee representatives. Mr Prior.

PN67

MR PRIOR: Thank you, Commissioner. Perhaps I should say two things, one in relation to the instructions that we had in relation, obviously, to our position. Notwithstanding what we said earlier, in our view - well, we don't concede the process in terms of what's happened in relation to the ASU, but they have satisfied the requirements; therefore, they're entitled to be bound.

PN68

We certainly appreciate the Commission's time and concern with the post-considerations of the operation of the agreement with an additional party bound, and we certainly take on board and note your concerns in relation to Full Bench decisions, particularly on the basis of what can happen in these types of proceedings where there's some uncertainty left unanswered in relation to - - -

PN69

THE COMMISSIONER: That's why I am trying to dot my Is and cross my Ts.

PN70

MR PRIOR: - - - the potential of what happens in a workplace with an agreement where something materially does change at the last minute. And without getting back into any sort of discussion about what could have happened a lot earlier, it's certainly our view that we maintain our position. Perhaps "satisfied" is an unsatisfactory word in the proceedings. We don't concede the point, but we believe that it's most important that the agreement be certified and it be validly certified and that it have certainty in terms of its operation.

PN71

THE COMMISSIONER: Good. Thanks, Mr Prior. Mr Coombs.

PN72

MR COOMBS: Thank you, Commissioner. Yes, I endorse those generic comments from the TWU, Commissioner. The ASU and the TWU were party to the original discussions from day one back in February this year, so it's my understanding of the discussions that have been entered into with the workforce that I don't think they care who was going to be there; it was the content of the document itself, and that is that they had a genuine and realistic and formal industrial coverage of their operations down there for Oceania Aviation.

PN73

So as far as that's concerned, Commissioner, it is my opinion, taking into account what my involvement has been in the time, that I would doubt very much that the majority of the workforce would have any different view with regard to their current standing, and that is that they just want an industrial coverage, and that is what we've got here today.

PN74

THE COMMISSIONER: Perhaps we should hear from the various representatives.

PN75

MR COOMBS: Yes. Can I ask Mr Youlton, Commissioner, to help you with the people.

PN76

MR YOULTON: Mr Commissioner, if I may introduce John Hurdley. John is our Administration Officer.

PN77

THE COMMISSIONER: There's no need to come forward, Mr Hurdley. I'll just check to see whether the Hansard recorder can pick up your voice from that distance.

PN78

MR YOULTON: Should I introduce them all and then - - -

PN79

THE COMMISSIONER: No, we'll proceed one at a time, and if they could just give their name and their role, and if they have a representative role, if they could just explain what that is.

PN80

MR HURDLEY: Yes, my name is John Walter Hurdley, and I work in the administration department of Oceania Aviation, and I would agree to the amendments in the agreement.

PN81

THE COMMISSIONER: Did you have a representative role in the making of the agreement?

PN82

MR HURDLEY: I handled, you know, the printing and that of the agreements and that sort of thing but not on the actual - - -

PN83

THE COMMISSIONER: Right. You weren't a representative of employees at the time, however. Is there anything else you want to add?

PN84

MR HURDLEY: No, that's all.

PN85

THE COMMISSIONER: Thank you. If we could go to the next person.

PN86

MS OVERGAARD: My name is Carissa Overgaard. I am a supervisor for Oceania Aviation as well as an accounts controller. I agree to the amendments, and I have spoken to other work colleagues about the amendments.

PN87

THE COMMISSIONER: And they have expressed no concerns? Sorry, if you could just articulate that for transcript purposes.

PN88

MS OVERGAARD: No. No, they express no concerns about it. They agree.

PN89

THE COMMISSIONER: Good, thank you.

PN90

MR SATTLER: My name is Joshua Sattler. I work for - a customer service agent for Oceania Aviation. I wasn't involved in any of the discussions for the agreement, but I agree in full to the amendment in total.

PN91

THE COMMISSIONER: Good, thank you.

PN92

MS BRUSH: My name is Leanne Brush. I am supervisor/trainer with Oceania Aviation, and I agree with the amendments to this contract as such.

PN93

THE COMMISSIONER: Were you involved in the negotiations at all with the first - - -

PN94

MS BRUSH: Not as such, but the employees did get together and chat in regards to it, but not - no, didn't actually - - -

PN95

THE COMMISSIONER: And you're not aware of any concerns or - - -

PN96

MS BRUSH: Not at all.

PN97

THE COMMISSIONER: - - - protestations about the amendments to include the ASU?

PN98

MS BRUSH: Not at all.

PN99

THE COMMISSIONER: Next?

PN100

MR SNOAD: Good morning. My name is Greg Snoad. I'm in the maintenance department. I agree to include the ASU and - yes.

PN101

THE COMMISSIONER: Good. No, that's fine. Thanks very much. Well, look, I think I have - the matters that are before us don't go to the content of any particular entitlements. If it did, it would, I think, be a matter that might weigh on me in a different manner. We are actually just seeing the incorporation of an additional party. If there was a change in your leave loadings or your shifts or something, that may impact on my requirement to be satisfied in a different manner, but I think from what I have before me today I have a sufficient basis on which I can be satisfied that I'm now capable of moving to certification of this agreement and that I indeed do have a valid application before me.

PN102

That said, as I said some time ago now, I am satisfied that the agreement that is before me meets the requirements of the Act and the rules of the Commission in relation to the requirements for certification, and I do this day, at this moment, in fact, certify this agreement to operate from today's date on its own terms for a period of three years, if I recall.

PN103

MR COOMBS: Yes, Commissioner.

PN104

THE COMMISSIONER: I was struggling just to find the - - -

PN105

MR COOMBS: The clause.

PN106

THE COMMISSIONER: The clause is clause 3, Period of Operation. Yes, that's right. Pursuant to clause 3, the agreement will operate from today's date with the ASU and the TWU as the union party to the agreement, and it will operate on its own terms for three years from today's date.

PN107

The only thing I can say by way of closing comment - and please don't take it as a gratuitous comment. This has been a lengthy process by which we could achieve an agreement, to say the least. We have three years to get it right next time. Thanks very much, everyone. We're adjourned.

ADJOURNED INDEFINITELY [10.33am]