AG2003/8920, Transcript of Proceedings [2003] AIRCTrans 4999 (11 November 2003)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER RICHARDS

AG2003/8920

APPLICATION FOR CERTIFICATION OF AGREEMENT

Application under section 170LJ of the Act
by Electrolux Home Products Pty Ltd and Another
for certification of the Electrolux Home Products Richards/Nerang/Townsville Sales, Service and
Spare Parts Enterprise Agreement 2003-2005

BRISBANE

10.51 AM, MONDAY, 27 OCTOBER 2003

PN1

THE COMMISSIONER: The parties are ready, are they?

PN2

MR G. POWER: Yes. Yes.

PN3

THE COMMISSIONER: Good, okay. Can we take appearances, thanks.

PN4

MR POWER: Yes, may it please the Commission, Greg Power appearing for the Australian Industry Group for and on behalf of Electrolux Home Products Proprietary Limited. Appearing with me is MR KERRY GRAHAM from Electrolux Home Products Proprietary Limited.

PN5

THE COMMISSIONER: Good, thanks, Mr Power.

PN6

MS D. WEBSTER: Good morning, Commissioner, if it pleases. Donna Webster from the Australian Municipal, Administrative, Clerical and Services Union, and appearing with me this morning is ELAINE CASTENATI, ASU delegate for the Electrolux Service. Thank you.

PN7

THE COMMISSIONER: Good, thanks, Ms Webster. Mr Power?

PN8

MR POWER: Yes. May it please the Commission, this is an application by the Australian Industry Group for certification of an agreement in terms of section 170LJ of the Act. The application is supported by statutory declarations by Simone Kondopolous for the company and the State Secretary of the relevant union. Those affidavits, or statutory declarations, go to the requirements of the Act. In particular, the company is a constitutional corporation. It is made with at least one relevant union, being the Australian Municipal, Administrative, Clerical and Services Union.

PN9

The agreement has a specified date of expiry date, as well as a disputes procedure. In terms of the no disadvantage test the agreement provides - and it's about a second or third generation agreement - provides rates and conditions in excess of the award. There is no radical departure from the conditions in the agreement to that you would find under the Safety Net Award. On that basis, we would commend the agreement for certification from today's date. May it please the Commission.

PN10

THE COMMISSIONER: Good. Thanks, Mr Power. Ms Webster, do you have anything else you want to add?

PN11

MS WEBSTER: Yes, thanks, Commissioner, if I could, please. If I could just raise with you, our particular union actually represents the call-takers and clerical employees employed in this particular site. It actually also represents - this particular agreement covers quite a number of other occupational groups as well. It delivers a six per cent wage increase over a two-year agreement, as my colleague actually states. In terms of the agreement, what our members have to, I guess, in terms contend with - there was only one contentious issue, and that would have been at 27.3, which talks about an extended one-hour lunch break as per the business requirements, which, in fact, for some people means an extension to their hours of work.

PN12

In saying that, Commissioner, our members were balloted on this agreement and have agreed to it. And, of course, our Branch Secretary, Ms Julie Bignall, has signed it. There are some benefits in addition in this agreement, and they include a discretionary provision under the bereavement leave of clause 17 which allows for management to extend sick and annual leave provisions to somebody on bereavement leave with an additional day of bereavement leave also being taken on board in regards to bereavement.

PN13

We have also negotiated under the trade union training leave a clearer understanding about the access. We have two delegates, Commissioner, on this site, and they now share three days each for appropriate trade union training. I believe, Commissioner, that's probably the most succinct of this agreement that involves our members, so we commend the agreement to the Commission. Thank you.

PN14

THE COMMISSIONER: Thanks, Ms Webster. Can we just have a look at clause 31, which is not headed as such but it's really a right of entry clause. It is headed differently but it's a right of entry clause. Now, I'm just wondering can - I don't know whether you're aware, but right of entry clauses have received some considerable attention in the Commission in recent months as to whether or not right of entry clauses themselves constitute a clause which is consistent with section 170LI and LH of the Act. Let's put that aside just for the moment though. Can the parties just assist me, first of all, in explaining to me the concept of - in clause 31.1 the concept of "union business" and in 31.3 the concept of "our legitimate union activity"?

PN15

As you know, the Act, the Workplace Relations Act, at section 285 provides for union right of entry for specific purposes in specific contexts, and I'm just wondering are we talking about here a scope of activity that goes beyond what the Act contemplates or else is what's meant by "union business" in clause 31.1, and in clause 31.3 "legitimate union activity" - do they equate to what the Act says the union can do? Perhaps Ms Webster - - -

PN16

MS WEBSTER: If I can.

PN17

THE COMMISSIONER: Look, if you like, you're at liberty to confer with Mr Power before you talk to me.

PN18

MS WEBSTER: Sure.

PN19

THE COMMISSIONER: The setting is such that you can't do that with ease, but this is your agreement and if you want to have a quick talk you can, but it's not necessary.

PN20

MS WEBSTER: I can - if I could - - -

PN21

THE COMMISSIONER: Yes, by all means.

PN22

MS WEBSTER: If it's okay. Excuse me, Commissioner, I'll just speak to - - -

PN23

THE COMMISSIONER: Yes, sure.

PN24

MS WEBSTER: If it pleases, Commissioner, it's my understanding why this was negotiated as it was in the agreement was to actually reflect the relationship that the delegates and union members have with their employer under this. It does actually go a little bit beyond the right of entry provisions of the Act inasmuch as that we are able to, and the delegates are able to, negotiate with site managers to actually either hold meetings of union members during work time, not during necessarily non-working time, but, of course, that happens. So it allows quite clearly an understanding that the parties need to talk to the site manager to allow that to happen and it enables the employer to arrange appropriate staffing for phones.

PN25

If, for example, the employer wasn't able to allow us to have a working meeting, working time meeting, the employer would have a right to refuse on that basis, that he wouldn't be able to cover the work that needed to be performed. But we've had a history of a good relationship with the employer that enables that. I guess during the negotiations we wanted that reflected in the agreement.

PN26

THE COMMISSIONER: No, that's - if I can just come back to the purpose of the clause, and that is where it refers to - in clause 31.1:

PN27

An official or officer of the union shall be entitled to enter the employer's premises to conduct union business.

PN28

What is that business? Is that business the same business as is specified in section 285B and C of the Act? That's all I'm coming at. Is that what the business is?

PN29

MS WEBSTER: Commissioner, I think actually also that even goes a little beyond the Acts, because, for example, union business to us could be the offering of union membership benefits, where we will take people like a health officer on site to talk to members about an issue after prior approval by the employer. So it's not just about breaches of the Act, or it's not, you know, inasmuch as that in terms of seeking access to our membership. For example, we're in the process of actually planning a solicitor come in to actually set up, you know, so people can get access to free wills, for example, so in some respects a union member has that access.

PN30

THE COMMISSIONER: Yes. Perhaps if I can read section 285C to you just so we can keep things within a boundary. I'm just wondering whether what you're telling me is, in essence, section 285C under the heading Discussion With Employees, that is:

PN31

Subject to subsections (2) and (3), a person who holds a permit may enter a premises in which work is ...(reads)... for the purposes of holding discussions with any of those employees who wish to participate in those discussions.

PN32

Now, is that what you're saying that union business is, to do those things?

PN33

MS WEBSTER: Yes.

PN34

THE COMMISSIONER: To hold discussions with employees who wish to attend?

PN35

MS WEBSTER: That's correct. Yes, that's correct.

PN36

THE COMMISSIONER: So then the scope of the definition of "union business" in clause 31.1 and "union activity" in clause 31.3 is merely the combined scope of section 285B and section 285C of the Act, that is, you can, of course, exercise your right to pursue alleged breaches of the Act and awards and agreements, but you can also retain your rights under section 285C to have discussions with employees, subject to various conditions about how you enter and so on and the timeliness of such which are specified. So is that what you're telling me, that what that clause is doing is really simply, in essence, replicating 285B and 285C of the Act?

PN37

MS WEBSTER: Commissioner, if I can ask you. 285C and B of the Act: I'm not sure of its intention. I'm not sure, and I stand corrected whether or not its intention was to also enable delegates or a union official to bring in activities on to that work site, whether they be member benefit activities like free will services where the solicitor has to attend the site to undertake that role; a health worker who comes on to talk about the union health benefits; that sort of thing. They're actually the member benefits issues. I'm not sure if B and C of the Act - - -

PN38

THE COMMISSIONER: Well, the scope of 285 is a very broad clause.

PN39

MS WEBSTER: Yes.

PN40

THE COMMISSIONER: And it gives you a capacity where you have members, or you have members who are eligible to be members, for you to hold discussions with them. There is no definition of discussions or the content of those discussions other than the fact that the Act allows people to voluntarily attend those discussions. So you're not restricted. The statute doesn't restrict you in terms of what you discuss in those meetings at all. It can be the weather or it can be, as you say, employer benefits, such matters as you've referred to.

PN41

MS WEBSTER: I think because it covers several sites it's a handy clause to have, Commissioner, if it pleases, because it actually enables site managers of the three respective sites to be fully aware that, where there are union delegates particularly present, that those are the provisions that the agreement sets in terms of the boundaries in which people operate in their respective roles. And I guess that is always the intention of placing something like this before so all parties are aware of what the rules are, I guess, rather than referring directly to an Act.

PN42

THE COMMISSIONER: Yes. We'll just come back to that one shortly. At clause 11 - there are a number of clauses in agreements. In fact, I have some elsewhere on my desk today and on the bench here before me which deal with the exclusion of Australian Workplace Agreements, that is, where employers just undertake not to offer Australian Workplace Agreements. The issue that I have with clause 11 is not that they - and let me make it clear - not that they are precluding the offering of Australian Workplace Agreements, as I said, not routinely, but there are agreements here before me now that do that, and that is their effect and that is what people agree to and that's what they are. That's the result they have.

PN43

The issue here is simply the first few words of the second paragraph in clause 11 where it says, "The company and the unions agree". Now, my issue there is simply one as to how an agreement - it could be anything about anything; in this case it's about AWAs, but it could be about anything - how does an agreement between the company and the unions amount to a relationship that is the requisite relationship required in an agreement under section 170LI and LH of the Act?

PN44

See, the content of it is irrelevant. It is simply that the agreement states that there is a relationship here. This agreement is about an agreement between the company and the union to do X. Now, how is that clause, that subclause - how is that a clause, a sub-clause, that relates to the requisite relationship which provides the legal basis to the agreement? Ms Webster?

PN45

MS WEBSTER: Based on the agreement that we have with the employer, it is clearly my understanding that the employer's intention and our intention is that people that are employed in that workplace will be employed under the terms of this agreement. If it helps to clarify the situation, Commissioner, we would certainly agree to the removal of "the company and the unions agree that" and begin a sentence, "Such employees shall not be employed other than those under the terms of this agreement."

PN46

THE COMMISSIONER: Yes, yes. Look, in essence, this is the sole issue. It's the drafting of the agreement. As I said, it has got nothing to do with the content. An agreement which specifies that this agreement precludes the offering of AWAs is an agreement which would clearly pertain to the requisite relationship. The difficulty, though, is that the clause refers to an agreement between the employer, the company, who is a party to the agreement, and a third party who is a stranger to the agreement. Do you see what I mean? And that's what creates the problem for section 170LH and LI of the Act.

PN47

Content is irrelevant. It is simply that drafting issue of that subclause, and it could have arisen in any other content area of the agreement. It is merely that particular drafting area which creates a relationship between the employer, one party to the agreement, and a stranger to the agreement, a third party to the agreement, whilst LH and LI requires a relationship in the certified agreement, in order to be of a requisite nature, to be a relationship between the employer and the employee. And that's the problem, yes.

PN48

MS WEBSTER: With respect, Commissioner - - -

PN49

THE COMMISSIONER: Yes.

PN50

MS WEBSTER: - - - if I can just say - and I truly don't mean to offend you by saying this. I guess it's an issue about what employee associations consider to be the term the unions stand for. I mean, clearly when we use that term in an agreement such as this we mean the members, and the members have a direct relationship with the employer.

PN51

THE COMMISSIONER: Yes.

PN52

MS WEBSTER: But I appreciate what you're saying in terms of that third party element.

PN53

THE COMMISSIONER: Post Federal Court this has become a very complicated area, I can assure you, a very complicated one on which sometimes matters of great stake turn on issues of drafting. Clearly, in this case, this matter can be cured by a simple redrafting of the clause.

PN54

MR POWER: Yes.

PN55

THE COMMISSIONER: The difficulty that the Commission has is how this can be achieved, though. But, look, that said, let's just leave that one. Let's come back to clause 31. Ms Webster, you've told me about why this particular clause exists for purposes of being able to put a particular set of circumstances in front of the local managers or whatever. It's easier to put a term of a certified agreement in front of them, I presume, from what you're telling me, than it is to put a section of the Act, I suspect for a number of reasons.

PN56

MS WEBSTER: Yes. Sorry, Commissioner, but, in addition, I guess the other issue is - there is that, but there is also the issue that this is actually a clause in terms of how parties behave during working time of an employee who is a member of the union, whereas I guess it was my belief that 285B and C was more directed to this provision of right of entry and access to employees or possible members of our union where we would have access during non-working times in most instances. As I said to you, we have a relationship with the employer that actually enables us through negotiating with the site managers to actually hold meetings with people during work time, not in non-working time.

PN57

THE COMMISSIONER: So let's put it this way then. Are you telling me that this clause isn't a right of entry clause as such; this is a clause about unions having meetings over the course of the working day?

PN58

MS WEBSTER: Yes.

PN59

THE COMMISSIONER: Thank you. Well, that gives it a different meaning altogether. What I'm wondering whether the parties can do for me is that there is a problem in how the Commission will deal with - and I think it's understood, and I think I saw Mr Power nodding his head in agreeance before as well, and correct me if I'm wrong, Mr Power. The issue that we have here with clause 11 is really with this subclause which state:

PN60

The company and the unions agree...

PN61

The issue before us is how we're going to deal with this. On the face of it - and I'm happy to have the parties tell me otherwise, or convince me otherwise, persuade me otherwise - is this a clause because the expression of the nature of that agreement is a clause that offends section LH and LI of the Act? If you can convince me that it's not, then everything is all right; then I'll go through to certify the agreement. But if you're unable to convince me that it isn't a subclause that offends against those provisions of the Act, how might the Commission go about curing that drafting problem? Do you understand the question?

PN62

MR POWER: Yes.

PN63

THE COMMISSIONER: That's the question I need you to look to for me. One, I'll need you to make some submissions to me on whether or not that clause pertains to the records of relationship, section 170LI and LH. So you need to try to persuade me that, despite what those words look like prima facie, in effect, they are words that do not offend against LI and LH of the Act. Now, that said, you can either take a secondary position, if you like, or if you agree that, well, prima facie, they do offend against LI and LH, how does the Commission deal with remedying that? This is the problem I need some advice on from the parties. Mr Power, have you - - -

PN64

MR POWER: Yes. I think the first is it is perhaps poor drafting. It intends to read, "The parties, including the employees," when it refers the to term "unions," and we say on that basis it doesn't offend section 170LI. However, that can be remedied, we say, by an undertaking that it is not introducing a third party, or it doesn't extend beyond what is the relation between the employer and the employees, and we can redraft that clause to remove the words, "The company and the unions agree".

PN65

THE COMMISSIONER: Yes. See, what's in the back of my mind here is the dilemma the Commission gets put in by some recent decisions of the Commission regarding access to section 170LV of the Act. If you look at section 170LV of the Act, LV of the Act, for one reason or another, seems to be exclusively accessible only for matters arising under section 170LT and LU of the Act, that is, it expressly excludes, by failing to reference, any matters arising in Division 2 of the Act. So if you have a look, if anyone has a copy of the Act with them, and I appear to be the only one - - -

PN66

MR POWER: Yes.

PN67

THE COMMISSIONER: Just let me find it. This is a matter you can attend to later, but section 170LV of the Act has a subheading to it which restricts its function other than for purposes of curing matters, if you like, whereby an agreement is deficient in relation to sections 170LT and LU of the Act. And there are decisions of the Commission which don't allow you to access those curative provisions for purposes of ameliorating problems arising under Division 2, that is, LI and LH matters.

PN68

What I'll need you to do is to, I think, in the spirit of at least section 170LV(1)(b), to at least in its spirit to give you some capacity to convince me that that clause which we're looking at isn't a clause which offends against sections 170LI and LH of the Act, and if it is conceded that it is such a clause, what submissions do the parties want to put to the Commission about how it can deal with that matter for purposes of remedying it when it is, in effect, as you say, a drafting matter which, with a small amount of drafting, in fact, a very small amount of drafting, can be readily corrected and made to conform with section 170LI and LH of the Act, assuming that it falls foul of those Divisions, which we have not concluded. Mr Power?

PN69

MR POWER: Yes. Look, it will be better if I just seek an adjournment.

PN70

THE COMMISSIONER: Oh, yes. No, that's fine.

PN71

MR POWER: I mean, that's the only way. Otherwise, I mean, I really haven't got the time constraint to do it now.

PN72

THE COMMISSIONER: No, no, no. I wasn't seeking submissions today.

PN73

MR POWER: Yes.

PN74

THE COMMISSIONER: I'm seeking submissions from the parties. Now, what sort of time period would parties like to be able to come back to me on this issue?

PN75

MR POWER: I think within a week.

PN76

THE COMMISSIONER: Is a week enough, Ms Webster?

PN77

MS WEBSTER: Yes.

PN78

THE COMMISSIONER: Are you sure?

PN79

MS WEBSTER: Yes, thank you, it will be.

PN80

THE COMMISSIONER: Right. Okay, then. Well, look, if the parties could put some submissions to me on that particular matter by close of business next Monday afternoon.

PN81

MR POWER: Yes.

PN82

THE COMMISSIONER: Does that - - -

PN83

MR POWER: Yes.

PN84

THE COMMISSIONER: Does that meet everyone's timeframe? Are there any other matters that anyone wants to put to me on this agreement, then?

PN85

MR POWER: No, not at this stage.

PN86

THE COMMISSIONER: Okay, good. Thanks everyone. We're adjourned, for today's purposes at least.

ADJOURNED INDEFINITELY [11.20am]