AG2003/9259, Transcript of Proceedings [2003] AIRCTrans 5454 (10 December 2003)

AUSCRIPT PTY LTD
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TRANSCRIPT OF PROCEEDINGS


O/N F7904
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

VICE PRESIDENT LAWLER

AG2003/9259

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LK of the Act
for certification of the Salmat Teleservice
Pty Limited Enterprise Agreement

SYDNEY

9.59 AM, MONDAY, 24 NOVEMBER 2003

Continued from 17.11.03

THESE PROCEEDINGS WERE CONDUCTED BY VIDEO CONFERENCE IN SYDNEY

PN185

THE VICE PRESIDENT: I note the appearances are as before. Mr Nucifora, I take it you've got the material that I'd asked to have provided on the last occasion, that is the time and pay records for the A to L individuals.

PN186

MR NUCIFORA: No, I don't have that, your Honour.

PN187

THE VICE PRESIDENT: Fine. Mr Nucifora, I have one matter to raise with you before we do anything further and it's this: on the last occasion you applied for leave to intervene pursuant to section 43, that was opposed by the company. I granted you leave to intervene on the basis that by virtue of the application to be bound pursuant to section 170M3, you were within the words of the section. It's come to my attention in the intervening period rather serendipitously that that approach appears to be contrary to Full Bench authority, in particular the decision of the Full Bench in the CSL v CPSU reported at 98IRs at 226. At paragraph 11, the Full Bench says this:

PN188

We reject the POAV's contention. Section 43(2)(b) does not bear the construction relied upon ...(reads)... the provision all but futile.

PN189

That passage seems to be very specific authority for the proposition that the exception at the end of 43(2)(b) only operates if the agreement itself proposes that the organisation is to be bound by the agreement. It seems to me, in those circumstances, the proper course is to revoke the leave that's been granted to intervene on the basis that I'm obliged to follow the Full Bench authority.

PN190

That doesn't necessarily exclude you in the sense that an employee who is going to be bound by the agreement is certainly entitled to appear to argue that the agreement ought not be certified and the union could appear as agent for that employee, but that would need to be done on the basis that the employee is certainly identified because it's the employee who is making the objection rather than the union who would be doing it as agent for the employee. Now, I imagine this takes you somewhat by surprise, Mr Nucifora?

PN191

MR NUCIFORA: Yes, it does, your Honour, because on 14 November, we had sent through a signed statement by an employee who is a member of ours to your Honour and in that is attached a pay slip that we indicated if that could be compared with the list of names that you're getting, your Honour, particularly from A to L, the name of the employee actually - in fact that particular letter dated 14 November goes to confirming that there is an employee who is a member of ours and that employee falls within that list of A to L that you have, and I did raise this at the last hearing, if you are able to compare that list of employees, although we don't see who they are, this is a current employee of Salmat and normally that would be sufficient to confirm that we have a member who is an employee who also requested in the attached letter that - - -

PN192

THE VICE PRESIDENT: Mr Nucifora, I think we're at cross purposes. I understand that one of the jurisdictional matters that needs to be established in respect of your 170M3 application is that you have a member who is employed and whose interest you are entitled to represent and that there is evidence that needs to be directed towards that issue and that the process that you've commended to the Commission and which I accept is the appropriate process, is one by which you can discharge your obligation in respect of that jurisdictional fact for the purposes of the 170M3 application.

PN193

The issue I'm concerned with at the moment is whether or not you should continue to have leave to intervene in respect of the application to certify the agreement, which is a different application. The view that I took on the last occasion was that your section 170M3 application meant that you came within the exceptional words at the end of section 43(2)(b). However, as I say, the passage that I've read out from the decision of the Full Bench in CSL v CPSU indicates that the approach I took there is wrong and that the exceptional words at the end of 43(2)(b) are only activated if the agreement itself proposes that the union be bound.

PN194

So that the section 170M3 application is not a sufficient basis for a grant of leave pursuant to 43(2)(b) in respect of the application to certify the agreement.

PN195

MR NUCIFORA: Your Honour, it's our understanding and I'm referring to actually a decision of the Full Bench, a more recent Full Bench decision in MSA Security Officers Certified Agreement PO937654 that that was one of the issues that arose, although I've sent that on to the employer and employer representatives and yourself for other reasons, that also goes to confirming if a party is going to be bound by the agreement then even though they oppose a certification of the agreement they have rights of intervention. I'm just looking for that now.

PN196

THE VICE PRESIDENT: Do you want to take a couple of minutes to find that rather than try and do it, as it were, under the glare of the spotlights, Mr Nucifora?

PN197

MR NUCIFORA: Yes, if I may, your Honour. It's a threshold question.

PN198

THE VICE PRESIDENT: That's right. I can see it's - - -

PN199

MR NUCIFORA: Paragraph 113, 114.

PN200

THE VICE PRESIDENT: Also 115.

PN201

MS ALLEN: Your Honour, can I just point out that we don't actually have a copy of that decision that was sent through this morning.

PN202

THE VICE PRESIDENT: I'll make sure you have a look at this before you're obliged to respond, Ms Allen. I will just adjourn for a couple of minutes.

PN203

MR NUCIFORA: Yes, your Honour.

SHORT ADJOURNMENT [10.07am]

RESUMED [10.32am]Y

PN204

THE VICE PRESIDENT: Does anyone in Melbourne know where Mr Nucifora is?

PN205

MS WALKER: We've just sent someone out to get him for us.

PN206

THE VICE PRESIDENT: Have you seen the table the union sent through, Ms Allen?

PN207

MS ALLEN: I have seen the original one not the amended one.

PN208

THE VICE PRESIDENT: Sorry, Mr Nucifora, I wouldn't have come in if I realised you weren't there.

PN209

MR NUCIFORA: Sorry, your Honour.

PN210

THE VICE PRESIDENT: I apologise for the complication that this all represents but the obligation of the Commission and individual members of the Commission obviously is to apply the Act faithfully in accordance with binding interpretations. In the adjournment I checked to see what had happened to the Full Bench decision in CSL and in fact there was an appeal of sorts in the form of an application for prerogative relief by the Professional Officers Association of Victoria in respect of the intervention decision.

PN211

That matter was considered by the Full Court of the Federal Court in Professional Officers Association (Victoria) in the matter of an application for writs of prohibition, mandamus and certiorari. The media neutral reference is [2001] FCA 296, a decision of Wilcox, Moore and Goldberg JJ. Paragraph 49 of that decision is in these terms:

PN212

As to the invention by the Association the Commission was correct in concluding that the Association was not an organisation "proposed to be bound" by the 1999 agreement and, accordingly, was not able to intervene having regard to the terms of section 43(2)(b). While the provisions are not entirely clear the better view is that section 170LN enables an application to be made by a party to an industrial agreement made under division 2 of part 6B. If the application is by an employer other parties to the industrial agreement including organisations may intervene in the proceedings. The expression "one that is proposed to be bound by the agreement" is a reference to an organisation proposed in the application for certification thus one looks to the terms of the application to determine who is proposed to be bound by the agreement. If the application does not propose that an organisation be bound by the agreement then such organisation is not entitled to be granted leave to intervene in the matter of the application for certification of the agreement. Accordingly, any erroneous view the Commissioner may have formed about either or both of various sections and considering the intervention of the Association was irrelevant the Commission had no power to allow the Association to intervene.

PN213

Mr Nucifora, that does appear to be an authoritative end to the matter, however, given the importance of the issue from your union's perspective and given the prospect of appeals and given basic notions of procedural fairness it's probably only fair that you have an opportunity to put in some written submissions on the intervention question if you wish to take that opportunity.

PN214

MR NUCIFORA: Yes, your Honour. I'm sorry, you're saying a written submission?

PN215

THE VICE PRESIDENT: Yes, on the intervention issue. At the moment my provisional view is that I'm obliged, because of these authorities, to revoke your leave to intervene and to proceed with the determination of the application for certification just with the other parties present unless your member wishes to seek leave to intervene. Your member would certainly have a right of intervention but obviously anonymity is not going to be preserved at that point because they have a party status at that point in the application.

PN216

MR NUCIFORA: That's if we were seeking an immediate determination of the application for certification?

PN217

THE VICE PRESIDENT: Well, no, that's if you want to be participating in the argument in relation to whether or not the agreement ought be certified then you either need to persuade me that I ought not revoke your leave to intervene on the basis of the authorities I have referred to or your member needs to seek leave to intervene because your member would certainly be bound by the agreement and therefore is clearly within the ambit of discretion under 43(1) being an individual, a natural person. 43(2) is irrelevant and as an employee proposed to be bound by the agreement or who would be bound by the agreement if it's certified your member would certainly have an appropriate standing to be granted leave under 43(1).

PN218

MR NUCIFORA: Your Honour, in the letter signed by our member it does refer to requesting that:

PN219

The ASU notify the Commission the ASU wished to be bound.

PN220

It also says:

PN221

I also request that you act as my representative at the hearing for certification.

PN222

It doesn't say anything about an agent as the Act requires for AWAs, it just says - - -

PN223

THE VICE PRESIDENT: No, no, the word "representative" isn't sufficient to encompass the notion of agency but your member cannot preserve anonymity in those circumstances because it is necessary - the Commission is a tribunal of public record - that the party be at least identified to the other parties to the proceeding.

PN224

MR NUCIFORA: We believe then that the only alternative that we have is to make written submissions in a short space of time on the matters that you've raised in relation to intervention. There is another alternative and that is if the employer seeks to get anything out of today that they put their position on the agreement as we do and then you can determine whether you should ignore our submissions.

PN225

THE VICE PRESIDENT: No, I'll hear Ms Allen before I determine what is the appropriate course but at the moment you either are entitled to intervene or you're not. At the moment you have a grant of leave to intervene. That determination was made without reference to argument or authority. Serendipitously, I have become aware of authorities that suggest that that determination was wrongly made and that therefore the appropriate course is to revoke your leave to intervene. If you do not have leave to intervene then you will not be heard in argument on the application unless you appear in a different capacity where you are entitled to be heard and that the only other relevant capacity would be as the representative of an employee who will need to be a named employee.

PN226

MR NUCIFORA: So if we were able to identify who the employee was today because in that signed statement he asks that the ASU act as his or her representative.

PN227

THE VICE PRESIDENT: Yes. Subject to hearing from Ms Allen my provisional view would be that under 43(1) it would be a proper exercise of discretion to permit the employee to intervene in the application for certification and you would be entitled to appear as representative of the employee.

PN228

MR NUCIFORA: Your Honour, the one step away from that is if you have a full list of employees A to L and you can compare that list with the particular employee that signed the authority then - - -

PN229

THE VICE PRESIDENT: No, I understand that. Mr Nucifora, let's just proceed on the assumption that you have an authority in the terms that you've referred to from someone who is a current employee; let's make that assumption.

PN230

MR NUCIFORA: Yes. Your Honour, I wonder if I could have a break to talk to that employee?

PN231

THE VICE PRESIDENT: Certainly. Just before you go, Ms Allen, I haven't heard from you yet. Ms Allen, the shortest way home is usually is to do things strictly according to Hoyle, if I can put it that way. I appreciate that the company wants to have the agreement certified but it is undesirable, it seems to me in the long run, to proceed to the final certification hearing today while these issues of intervention are still up in the air because that will only lead in all likelihood to an appeal which will involve your client in considerable further trouble and expense and that the better course is to postpone the argument in relation to certification until these issues of intervention are sorted out. Do you wish to urge an alternative course or a different course upon the Commission?

PN232

MS ALLEN: No, we consent to that, your Honour.

PN233

THE VICE PRESIDENT: Thank you. I will adjourn for a few moments. How long do you think it will take you to get in touch with your member, Mr Nucifora?

PN234

MR NUCIFORA: It would take a few minutes. If I can't get through to him there's another alternative I'll put back but it seems the only other alternative is written submissions but I'll see if I can at least exhaust that avenue so as we can confirm that today. If we're adjourning until 10 to - sorry, another three minutes. I don't think we'll need five minutes. It's a matter of whether I can get through.

PN235

THE VICE PRESIDENT: I'll just wait outside and if you could just tell my associate when you want me back, thank you.

SHORT ADJOURNMENT [10.43am]

RESUMES [10.48am]

PN236

THE VICE PRESIDENT: Yes, Mr Nucifora?

PN237

MR NUCIFORA: Yes, your Honour, we were unable to get through to the employee concerned, I'm not sure whether the employee is actually at work or away from - it was a home number that I was ringing, I only really left a voice message. So what we would propose, your Honour, as you mentioned earlier, is that we make further written submissions about the application for intervention by our union, if your Honour pleases.

PN238

THE VICE PRESIDENT: Ms Allen, what I was proposing to do was to adjourn the matter until Monday 1 December which is next Monday to have a timetable for submissions in relation to intervention. You can choose to respond or not, as you please, I'll determine the matter of intervention before next Monday.

PN239

Mr Nucifora, can you do submissions by close of business Wednesday?

PN240

MR NUCIFORA: Yes, your Honour.

PN241

THE VICE PRESIDENT: Okay. I direct the ASU to file and serve by the close of business on Wednesday any submissions it may seek fit to make in relation to the question of intervention in the light of the observations that I've made today. Ms Allen, can you do your submissions by mid-day on Friday?

PN242

MS ALLEN: Yes, sir.

PN243

THE VICE PRESIDENT: I direct the company to file and serve any submissions on which it intends to rely in relation to the issue of intervention by mid-day on Friday 28 November 2003. I adjourn both applications in this matter to Monday 1 December 2003 at 10 am. On that day the application for intervention will be determined in the sense that I'll give a decision based on submissions. Mr Nucifora, at the moment you've got your work cut out on the basis of those authorities.

PN244

Can you please, I won't make a direction but could you please let Ms Allen know by mid-day on Friday whether or not your member is going to give you instructions that will have the effect of the member seeking leave to intervene with the union as his or her representative?

PN245

MR NUCIFORA: Yes, your Honour.

PN246

THE VICE PRESIDENT: Obviously if you get those instructions, then the intervention by the member will proceed. I mean, subject to arguments from Ms Allen but Ms Allen at the moment it's hard to see how an employee who is going to be bound by the agreement could not be reasonably granted leave to intervene to oppose certification. The argument in relation to certification will occur on Monday 1 December 2003, come hell or high water in the sense I don't think it's fair to the company and those employees who support the agreement to postpone the certification longer than that.

PN247

Mr Nucifora, just can I flag this final issue in relation to the argument, in the event that either you persuade me that your leave to intervene should not be revoked or in the event that your member decides to give you those instructions that will facilitate the intervention by the member with the union appearing as his or her representative. You have sent through a document that seeks to challenge the integrity of the balloting process, it's in the form of I suppose, a sort of a quasi petition I suppose.

PN248

I take it Ms Allen, you haven't seen that document?

PN249

MS ALLEN: Your Honour, I have seen a statement stating, we the undersigned employees of Salmat, the signatures have been withdrawn but I have seen it.

PN250

THE VICE PRESIDENT: Yes, okay, fine, so you've seen the substantive document. There is an issue as to what ought to occur in relation to evidence, if I could use that word in inverted commas, of that sort, Mr Nucifora. Ms Allen may object to the tender of such a document and she may object to it on a number of grounds. I appreciate that rules of evidence don't apply but the discretion to admit or reject material has nevertheless, got to be exercised in a judicial fashion, that is, in accordance with principle and in accordance with notions of fairness.

PN251

The problem with a document of that sort is that it is inherently difficult for the company to challenge it, it's as though the assertion is made but it's not made with reference to particulars that are capable of being challenged and the individuals themselves are not available for example, to be cross-examined which is what one would ordinarily expect in terms of the disposition of an issue like that fairly.

PN252

Ms Allen, are you proposing to call some evidence about the balloting process? I note that the documents from the company suggest that it was a secret ballot process that was conducted.

PN253

MS ALLEN: I think that I'd need to speak further to Mr Nucifora to ascertain exactly what the concern with that ballot process is but if he is seeking to rely on evidence, yes, it would probably be our intention to produce evidence to that effect as well.

PN254

THE VICE PRESIDENT: You might want to just think about having that organised for next Monday if you want the certification to occur on Monday after argument because obviously, there is a risk if that's not thought about in advance, that we'll find ourselves in a position where it needs to be adjourned yet again to enable evidence of that sort to be brought along.

PN255

MR NUCIFORA: Your Honour, if I may just on the way you've characterised that document as a quasi petition, we didn't intend for it to be strictly a petition, as we are all aware of how petitions are used. On the other hand, we didn't expect it would be treated the same as, or if you like, given the same weight as a witness statement. These people would be available for cross-examination, it's a question of weight that your Honour would give. If the employer puts up an argument that they really need to cross-examine these employees, understand the rules of evidence and you may have in fact rejected the lot.

PN256

But from our point of view it was the only way that people felt secure enough to put their opinion across about the agreement.

PN257

THE VICE PRESIDENT: Mr Nucifora, don't get me wrong, I'm not criticising you at all for adopting that approach but I just am flagging that it raises particular problems in terms of how it ought to be dealt with and the extent to which there needs to be evidence called in reply and I was simply concerned to avoid the situation where there is yet, a further adjournment with further trouble and expense accruing to the parties in having to come back yet again. I would be surprised if Ms Allen does not object to it on the grounds that it's inherently difficult for the company to deal with and unfair.

PN258

MR NUCIFORA: I suppose I'd ask that the weight a petition might be given is at one extreme, the weight that a petition might be given and a Commission as opposed to a court of law, in terms of the rules of evidence, as opposed to the weight of course, a witness statement is given when there is the opportunity to cross-examine the witness.

PN259

THE VICE PRESIDENT: Yes. No, I understand that. I mean, is the factual contention on your side that employer representatives were actually looking at the ballot papers as they were being filled in and could see - - - ?

PN260

MR NUCIFORA: Yes, that's at one site in particular.

PN261

THE VICE PRESIDENT: Which site is that?

PN262

MR NUCIFORA: That's the main site at St Kilda Road, not the Hawthorn site.

PN263

THE VICE PRESIDENT: Can I say this, if Ms Allen produces a witness statement from a person who was present at the time that the voting occurred, denying that that occurred, then in the absence of contradictory evidence of a similar status, it's hard to see how, as a matter of fairness, it would be possible for the Commission to uphold the factual contention in the document that's been referred to.

PN264

MR NUCIFORA: Yes, I understand that, your Honour. Your Honour, just one more question and not related to any of that, that CSL decision, the appeal decision, the citation I just wonder if you could give that again.

PN265

THE VICE PRESIDENT: Yes, 98 IR at 226, the relevant passage is in paragraph 11 and in the Full Federal Court (2001) FCA 296 paragraph 49.

PN266

MR NUCIFORA: Thank you, your Honour.

PN267

THE VICE PRESIDENT: Ms Allen, is there anything further you wish to say?

PN268

MS ALLEN: Just if I could request Mr Nucifora, you know, you outlined a couple of documents to me that had been filed, just to make sure that I've received all that documentation there were a number of things that I haven't received as of yet, make sure that that's forwarded to myself.

PN269

MR NUCIFORA: Yes, that's the seven items I've referred to earlier?

PN270

MS ALLEN: Yes.

PN271

THE VICE PRESIDENT: All right. Thank you. The Commission is adjourned until 1 December 2003 at 10.00am.

ADJOURNED UNTIL MONDAY, 1 DECEMBER, 2003 [11.00am]