C2003/3869, Transcript of Proceedings [2003] AIRCTrans 5562 (11 December 2003)

AUSCRIPT PTY LTD
ABN 76 082 664 220

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TRANSCRIPT OF PROCEEDINGS


O/N 8007
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER CARGILL

C2003/3869

AUTOMOTIVE, FOOD, METALS, ENGINEERING,
PRINTING AND KINDRED INDUSTRIES UNION

and

ROTARY OFFSET PRESS PTY LIMITED

Application under section 170LW of the Act
for settlement of dispute re casual employment

SYDNEY

10.02 AM, FRIDAY, 28 NOVEMBER 2003

Continued from 6.6.03

PN61

THE COMMISSIONER: I don't think there is a change in appearances since the last occasion.

PN62

MR NEILSON: No, there is not, Commissioner.

PN63

MR TAMPLIN: Not from the respondent's side, Commissioner.

PN64

MR NEILSON: And certainly not from the applicant's side or actually the last time I think it was before you I think Mr Morrison might have appeared, Commissioner, so - I was involved earlier.

PN65

THE COMMISSIONER: Now, I have received an outline of submissions from both sides. Did you want yours marked, Mr Neilson?

PN66

MR NEILSON: Yes, we would, Commissioner, if that would be suitable.

PN67

THE COMMISSIONER: Yes, I am just looking to see - there has been no exhibits so far in this matter as far as I can tell so I will mark that AMWU1 and then Mr Tamplin in due course I will probably mark yours but I won't at the moment.

EXHIBIT #AMWU1 OUTLINE OF SUBMISSIONS

PN68

THE COMMISSIONER: So you can both take it that I have read the submissions.

PN69

MR NEILSON: Commissioner, just in relation to those submissions, Mr Tamplin and I were having a discussion earlier. Both of us have sort of, if you like, in compliance with your directions detailed those submissions. We wouldn't think that it would take too much time by way of oral submissions this morning unless the Commission has some question marks about the particular issues in dispute but certainly from our point of view there are only a few matters that we may need go to in reply to Mr Tamplin's matter - in reply to Mr Tamplin's submissions, yes.

PN70

THE COMMISSIONER: Yes, I think that was the general idea, Mr Neilson, when the matter was - - -

PN71

MR NEILSON: Yes.

PN72

THE COMMISSIONER: - - - on some time ago, I think it was to be on that basis, that there would be written submissions and then real just any issues that needed to be raised.

PN73

MR NEILSON: Commissioner, in relation to the dispute, I think the Commission would be aware, the dispute between the parties arises as a result of initially six employees who had worked at Rotary Offset for a period in excess of six months and we say they have been working regular and systematic hours whereby we say that, on the construction of the agreement and the relevant underpinning award, then they should be entitled to permanent status.

PN74

The conciliation proceedings that were before the Commission previously, the AMWU through Ms Amanda Perkins, would have tendered copies of pay slips and - sorry, not pay slip, time and wage records of those particular employees which the company had prepared which should have detailed, we say, the amount of hours that those particular employees were working. And we say it goes towards establishing the case that they were working regular and systemic hours. I don't think that is in dispute between the parties.

PN75

I think what is in dispute between the parties is the question mark as to whether, under the terms of the agreement and/or under the terms of the award, whether these particular employees or any employees of Rotary Offset if you like, are entitled to be made permanent after six months. Now, Commissioner, the outline of submissions that I have referred in my written submissions that are marked as exhibit A, they detail that clause 9 provides for a comprehensive dispute settlement procedure in the Rotary Offset Press Pty Limited Production Enterprise Agreement of 1998, an agreement that was certified I believe by yourself.

PN76

It is not a question of jurisdiction so I will leave that issue aside but we would say that the Commission is empowered under that particular dispute resolution procedure to settle this matter and/or gives its assistance in the arbitration which I think Mr Tamplin readily accepts. Commissioner, the disputed clause between the parties is detailed at 11.9 of the relevant agreement. If the Commission is minded, it might be - I believe a copy of the agreement has been annexed to Mr Tamplin's outline of submissions.

PN77

THE COMMISSIONER: I knew it was here somewhere, I just couldn't find it. Yes, Mr Neilson.

PN78

MR NEILSON: Yes. And 11.9 is headed Casuals and it reads:

PN79

Casual employees can work full time ordinary hours of work for a period of up to six months without altering their casual status.

PN80

Now, Commissioner, we maintain that that particular clause, when read in light with the Graphic Arts Award of 2000 provides casual employees with a right to convert to permanent employment upon the completion of six months employment. Now, Commissioner, the dispute if you like and this is what Mr Tamplin goes to, Mr Tamplin submits that the relevant underpinning award for the purpose of this dispute is and remains I believe the Graphic Arts General Interim Award of 1995 and he refers the Commission to I believe clause 3 of the agreement which details that the Graphic Arts Award shall apply.

PN81

We would say and obviously the Commission would be aware, in dealing with matters in the print panel, that the Graphic Arts Award and the Interim Award and it was referred to as interim for a reason of 1995 has been rescinded and wholly replaced by the Graphic Arts General Award of 2000. Now, the Graphic Arts General Award of 2000 provides relevantly at clause 4.1.4(c)(iii), it provides:

PN82

No employee shall be engaged as a full time casual employee or part time casual employee on a continuous basis from week to week for more than 12 weeks unless a further maximum period of up to 12 weeks is agreed between the employer and employee concerned.

PN83

And on a plain and ordinary reading of that particular clause it would appear that a casual employee is not entitled, if you like, to be classed as a casual for a period of in excess of three months unless a further 12 weeks is agreed between the parties which would of course take it out to six months. Now, in relation to clause 11.9, that is what we would say appears to be envisaged by that, where it reads that they can work full time ordinary hours for a period of up to six months without altering their casual status. And then we say after that six months, then they should be deemed as permanent on the basis of we say clause 11.9 or if the Commission is not minded to accept that interpretation, certainly on the basis of clause 4.1.4(c)(iii).

PN84

And I don't think it is in dispute, Commissioner, that the relevant award for the purposes of the no disadvantage test is of course the Graphic Arts General Award of 2000. I don't think it is in dispute between the parties that if this agreement was to disappear tomorrow, the employees would revert back to the Graphic Arts General Award of 2000, so quite clearly the Graphic Arts Award is the relevant award for the purposes of these employees' work. Now, Commissioner, the issue therefore is whether or not the 1995 award continues to apply despite the fact that it had been rescinded by the Commission as a result of the passing of the Workplace Relations Act and the various award stripping mechanisms provided for in that Act.

PN85

Now, Commissioner, we would say that it quite obviously doesn't apply on the basis that the award is no longer in effect at all. It has simply disappeared so you now have a situation where you potentially, if you accept Mr Tamplin's argument, you have a situation where you have an agreement that is not underpinned by any particular award at all because that award has been rescinded. We would say, Commissioner, that that is a dangerous situation to be in not only for the purposes of the no disadvantage test but of course most awards - agreements I should say are required to have a relevant award underpinning its terms and conditions for the purposes of determining the no disadvantage test.

PN86

And certainly section 170X of the Workplace Relations Act which details the no disadvantage test and how it is to be applied provides for a mechanism for employers or employees to apply to the Commission for determination about what the particular - for what a particular enterprise agreement should be underpinned by. Now, Commissioner, the concern for the AMWU is what appears to be an attempt by the company to escape its obligations under, we say, the award and under this particular agreement.

PN87

What the company are trying to do is simply some companies, if you like, have suggested that the casual provisions provided for in the Graphic Arts Award are onerous and don't necessarily assist in their flexibility of their particular business.

PN88

But we say that they are obliged to comply with its terms on this particular basis. Now, what the company is seeking to do is have employees for some occasions engaged for a period of up to 18 months and in excess of 18 months who are working regular and systemic hours and that is detailed in the pay slips and in the wage records that have been provided and not give them any permanency or any certainty, if you like, as to how their work is going to be conducted and whether or not they can go out and take out loans or anything like that.

PN89

Certainly, from a public interest point of view, the union would submit that it is better to have more employees engaged on a permanent status and that is exactly what the relevant clause of the Graphic Arts Award goes to try to achieve. Now, Commissioner, even if we say that the Commission doesn't accept the interpretation of the agreement that has been given by the AMWU and Mr Tamplin goes to that in his submissions, we would say that by virtue of the operation of - sorry, I withdraw that.

PN90

Commissioner, what we say is that if the Commission doesn't accept our interpretation and it doesn't accept the fact that this particular clause applies to casuals at all and that the way Mr Tamplin interprets the clause is that it reads as casuals won't have their status altered for a period up to six months, which he says doesn't really mean much at all, it just means that they can work casual for six months and not have to worry about it, we would say that the Commission can accept that interpretation because if the agreement if is silent then the Graphic Arts Award of 2000 would apply and therefore the employees would be rendered permanent after three months which the employees who are subject to this particular dispute all would meet and all would need to be made permanent.

PN91

So, Commissioner, we have two arguments and one rests in the alternative, that is if the agreement is to be interpreted as we say, the employees are to be made permanent after six months, if the agreement is to be interpreted as Mr Tamplin suggests and that is that this clause doesn't really mean anything at all, then the employees are permanent after three months. We would of course accept the three month argument as advanced by - if Mr Tamplin continues to advance that or if the Commission were minded to accept that but certainly we would say our primary argument is that they are entitled to be permanent after six months.

PN92

Now, Commissioner, in relation to a reply to Mr Tamplin's outline of submissions, I will rely in great detail upon the outline of written contentions that has been filed by the AMWU. There is a third argument that arises with respect to these employees involved and that is that Mr Tamplin submits that the way the clause reads and the application of the 1995 award means that the old casual employee clause of the 1995 award applies and that is detailed in paragraph 40 of Mr Tamplin's outline of contentions. And he draws the Commission's attention to clause 4.1.5(b) and it says:

PN93

An employee when engaging a person for casual employment shall inform him/her then and there that he/she is to be employed as a casual. Except where this is done the employee shall be a weekly time worker. A casual employee after two weeks of continuous employment as a casual employee shall become a weekly time worker.

PN94

Now, Commissioner, we would say that on the basis of the time and wage records that have been provided earlier to the Commission, all of these employees would meet that particular test and therefore even if the Commission accepts Mr Tamplin's argument about the applicability of the 1995 award, we say that they should become weekly workers as a result of the operation of, if the Commission were minded to accept it, at 4.1.5(b) of the 1995 award.

PN95

However it is our primary submission, Commissioner, that it is impossible for the Commission and intend the parties to continue to rely on an award that has been comprehensively rescinded. It has been rescinded by operation of the Workplace Relations Act and its requirements as to the stripping of awards and we say that it has wholly replaced by the Graphic Arts Award 2000 which we say the Commission is empowered to deem it, if you like, the relevant underpinning award for the purposes of the no disadvantage test as all agreements are required to do.

PN96

Commissioner, in relation to Mr Tamplin's submissions that the union, as a third party, is not entitled to bring this claim, that is that the agreement was a section 170LK agreement between the employees and the employer and Mr Tamplin makes some submissions as to privity, that doctrine annunciated in various contract law cases, we would say that, yes, we recognise the provisions of privity but certainly in relation to this dispute the AMWU comes here as a representative of the employees.

PN97

We don't necessarily come as a party to the agreement but we are entitled to represent our members and we are instructed to do so in this particular matter. Commissioner, the situation out at Rotary Offset is quite concerning and I think you have detailed - well, that has been detailed in that you have employees who under ordinary circumstances would have been made permanent on some cases up to 12 months ago. They continue to work as a casual employee, that not only affects their morale but it is also affects their certainty, it also affects how they are going about they their lives.

PN98

They have all come to the union and said, look, we really this fixed up and that is why the application has been made. We don't necessarily seek to impose a variation upon the agreement. We say that the Commission can accept two arguments, that is (1) that the agreement in clause 11.9 reads the way we suggest or alternatively you can say, no, it doesn't apply at all and accept either Mr Tamplin's argument that the Graphic Arts Award - or my argument, if you like, that the Graphic Arts Award of 2000 applies or Mr Tamplin's argument that the Graphic Arts Award of 1995 applies.

PN99

But in either case the difference is that the casual employees engaged, on my argument, would be allowed to be made permanent after three months, on Mr Tamplin's argument, permanent after completion of six months and then another two weeks after that which we say that all the employees the subject of this dispute have been met - have comprehensively met. We would, in conclusion, Commissioner, I rely, as I have said, on the outline of contentions that has been filed.

PN100

We would say that even if the Commission determines that the clause does not apply, we say that the company is bound by the Graphic Arts Award of 2000 and that deems the employees permanent after the completion. And we also say, in relation to the application by the company of this agreement over a period of time and some concerns may be expressed by the Commission as to why this dispute wasn't brought on earlier if we thought that the agreement wasn't being applied correctly and that is a valid criticism, but we would say that - and we rely on the comments of Commissioner McKenna in re Hospital Employees Conditions of Employment State Award 2000 and it is located at 96 IR 245 at 266 where the learned Commissioner said:

PN101

Plainly the fact an award has been given a long standing interpretation and application by any one or more parties does not mean that such an interpretation is correct.

PN102

And we would certainly rely on those comments to suggest that despite the fact that Rotary Offset have been giving this agreement their own interpretation over a number of years, that doesn't necessarily mean that that is correct and we say that the lag, if you like, between the AMWU taking up this matter and the employees that were engaged 18 months ago who could have become permanent is not a relevant consideration in this particular dispute.

PN103

And it is on that basis that I will leave my opening comments at that I believe, unless the Commission has any questions. I reserve my right to make a reply to Mr Tamplin but in relation to the submissions that are marked as exhibit A, we would rely on those, if it pleases.

PN104

THE COMMISSIONER: Mr Neilson, just one thing I just wanted to raise, you have mentioned that time and wages records have been provided. I don't think in fact they have ever actually been provided but - - -

PN105

MR TAMPLIN: That is quite correct.

PN106

THE COMMISSIONER: - - - can I just get into the thing. And this is something I need to ask you Mr Tamplin, is there in fact any difference between the parties about the actual hours, leaving the interpretation to one side, which is in fact what is before me, is there in fact any difference about the hours that have been worked by whoever these relevant employees might be?

PN107

PN108

I think that was something that was raised perhaps some time ago in proceedings and that I think in part led to the inspections which then - of the wages records which then seemed to take on a life of its own and left this particular issue to one side.

PN109

MR NEILSON: There are - Commissioner, if I may, there are a number of disputes between the parties.

PN110

THE COMMISSIONER: Yes.

PN111

MR NEILSON: And you are right, this matter was pushed to the side while those other ones sort of jumped up and down. I don't think there is necessarily any dispute between the parties as to the hours worked. I think it is how those hours are constructed that a dispute arises. Mr Tamplin has suggested that - I think previously that they worked for instance 60 hours in one week and then 20 hours in the next week. And we say that that is the way that particular department worked and I think that is the only dispute between the parties but, Commissioner, I was informed that you did have a copy of those and unfortunately I don't have a copy with me today but I can undertake to provide them subject to Mr Tamplin vetting them.

PN112

THE COMMISSIONER: Well, I don't have them but I don't know that necessarily I need them, Mr Neilson - - -

PN113

MR NEILSON: Yes.

PN114

THE COMMISSIONER: - - - because I think the way the - and this is subject to what you have to say Mr Tamplin, the way I read what is before me, the dispute is over really the meaning of 11.9 and what it then leads onto and the various issues about which award etcetera.

PN115

MR NEILSON: Yes.

PN116

THE COMMISSIONER: So I don't know that it necessarily will matter to me whether - - -

PN117

MR NEILSON: No.

PN118

THE COMMISSIONER: - - - I am of the view that Billy Bloggs or someone worked these hours or that hours because it will then be a case of, after I decide the issue depending upon what the answer is, presumably you people go away and apply that to the factual reality.

PN119

MR NEILSON: Yes.

PN120

THE COMMISSIONER: Is that the case, Mr Tamplin?

PN121

MR TAMPLIN: Commissioner, we are already on the record as stating that anyone who conforms with our view will, by default, have been made automatically a permanent employee once they have completed that two weeks and we will meet that.

PN122

THE COMMISSIONER: Yes. And presumably, this is what I now have to take up with you about the issue of the powers under the dispute settling provision, but do I take it by your presence here that your view is that should my view by different to yours, in other words, should I accept one of Mr Neilson's arguments about the application of the agreement, that the company would then comply with that view of what the agreement means?

PN123

MR TAMPLIN: Subject to challenging of that view.

PN124

THE COMMISSIONER: Yes, subject to whatever appeals there may be, Mr Tamplin, that is always the case but what I am getting at because what I don't want to do - I mean if there is some argument about jurisdiction it should have been - - -

PN125

MR TAMPLIN: I have no argument about jurisdiction to raise with you today. All I wish to do and there won't be much more I am going to add other than we don't agree with the assertions about how poorly done by these people are that have been raised by my colleague.

PN126

THE COMMISSIONER: Mr Tamplin, he is representing a union, you should expect that.

PN127

MR TAMPLIN: I understand that, I have been there as well in a past life. Certainly, Commissioner, if - - -

PN128

THE COMMISSIONER: Yes, so I have got your submissions, Mr Tamplin and I presume you like them - - -

PN129

MR TAMPLIN: Yes, we seek to tender those, Commissioner. I have faxed a copy to my friend and I have a fax transmission confirmation.

PN130

THE COMMISSIONER: I am sure the fact that he has been making some replies or responses to them, Mr Tamplin, indicates that he received them.

EXHIBIT #PIAA1 OUTLINE OF SUBMISSIONS

PN131

MR TAMPLIN: Thank you, Commissioner.

PN132

THE COMMISSIONER: And can I just then perhaps just raise a couple of things with you just firstly in relation to this jurisdictional aspect, if you like.

PN133

MR TAMPLIN: Yes.

PN134

THE COMMISSIONER: Under the agreement, Mr Neilson has indicated that the Commission has power under the dispute settling provision to resolve this dispute.

PN135

MR TAMPLIN: Well, that would appear quite obvious, Commissioner, in that 9.3; subclause 9.3:

PN136

If the matter remains unresolved for a period of four weeks...

PN137

which we have certainly passed that -

PN138

...it may be submitted to the Australian Industrial Relations Commission for resolution.

PN139

THE COMMISSIONER: I think we are probably up to four years by now, aren't we, rather than four weeks.

PN140

MR TAMPLIN: It is a case of the last one standing and as far as my memory goes, age and treachery has always overcome youth and skills.

PN141

MR NEILSON: Well, my stamina has improved.

PN142

THE COMMISSIONER: It is probably from jousting with Mr Tamplin, is it, Mr Neilson? So that is that. Can I just ask you just the other issue that you have alluded to in your submissions. Are you suggesting that the AMWU has no right to bring this matter because - - -

PN143

MR TAMPLIN: No, not at all.

PN144

THE COMMISSIONER: Right.

PN145

MR TAMPLIN: If they have a right - - -

PN146

THE COMMISSIONER: Representing their members?

PN147

MR TAMPLIN: Any - just one.

PN148

THE COMMISSIONER: Yes, well, I gather there is - I think it has been a been fluid but there has certainly been some.

PN149

MR TAMPLIN: There is certainly one. We have no - - -

PN150

THE COMMISSIONER: Yes.

PN151

MR TAMPLIN: We are not arguing the point that they can bring the application.

PN152

THE COMMISSIONER: Right, okay, I just - - -

PN153

MR TAMPLIN: What we are making clear or attempting to make clear is that they are not party to the originating enterprise agreement.

PN154

THE COMMISSIONER: No. Well, I don't think Mr Neilson is suggesting that in any way they are but you are not suggesting that, for instance, they have no right - - -

PN155

MR TAMPLIN: No, not at all.

PN156

THE COMMISSIONER: - - - to bring it on behalf of those members who have instructed them.

PN157

MR TAMPLIN: And if I have implied that then I withdraw it straight away, that is not my intention at all. I enjoy Mr Aaron Neilson's company at the bar table. If I can take you to section 170LW and just reinforcing the subclause 9.3 that we have gone to. It says in 170LW(A):

PN158

Empower the Commission to do either or both the following to settle disputes over the application of the agreement.

PN159

And if that is read within - in context with 9.3 then it is quite clear that the Commission has the power to decide how the clauses apply in the agreement. It is really a very basic context that we put to you, we think, in that the parties having formed an agreement and having had a meeting of the minds are consistent with the provisions and the objects of the Act are able to rely upon those outcomes. Now, I have to say that this is not the only agreement that relies upon the 1995 award.

PN160

There are many many many others and in one view I hope the union is successful in its application because we are going to have a lot of fun. But I am also of the view that the same status stands with those as well. Once the agreement has been made it remains in force pursuant to the Act until it is replaced or rescinded. And that is - - -

PN161

THE COMMISSIONER: And neither of those things have happened in this case?

PN162

MR TAMPLIN: None of those things have happened. So until that happens, rightly or wrongly, that 1995 award even though rescinded has become a clause implicit and explicit within the agreement. And I don't know how that can be avoided. I don't know and I don't believe that the inconsistencies between the clauses of the 1995 award, which is now a clause of the agreement in its own right, create an argument I have covered the field or that the inconsistency displaces other provisions. I think it comes down to, can they be read together? And we say the clauses can be read together in that the six months prevails and then at the end of the six months the clause regarding two weeks of the award automatically - sorry, of a term relating to the award automatically prevails and comes into place.

PN163

THE COMMISSIONER: But your argument is under 11.9, you do your six months.

PN164

MR TAMPLIN: Yes.

PN165

THE COMMISSIONER: And then you do another two weeks.

PN166

MR TAMPLIN: If you do two weeks the same as an ordinary time worker, by default, you become a permanent employee. Now, I understand the argument that the clause has been - the award has been rescinded therefore it should be superimposed or the agreement should be supplanted with the 2000 award and I don't, with respect, I am not sure that we as parties including yourself can do that unless it is rescinded or removed or unless there is a part in there that is discriminatory by its nature or meets with other provisions. Those in general plus our written submissions are what we rely upon, Commissioner.

PN167

The issue is for us, narrow. Does the '95 provision form part of the agreement or does it not? And it is that simple because everything flows from that. Unless the Commission has some particular questions to put to me that would close our submission.

PN168

THE COMMISSIONER: Thank you, no, I have already ask you the questions that I wanted to, Mr Tamplin. Thank you. Mr Neilson, did you wish to respond to anything?

PN169

MR NEILSON: Commissioner, if I could - no, Commissioner, I won't respond to anything Mr Tamplin has put, I think I addressed them in my opening unless the Commission has any questions as to this matter. But we would rely on our written submissions in this particular matter. In relation to the employee records, if the Commission gives an interpretation as to one way or other, we may very well come back here about this particular matter with those employees of the company.

PN170

MR TAMPLIN: Can I suggest that we might - - -

PN171

MR NEILSON: Sorry.

PN172

MR TAMPLIN: I think we might - Mr Neilson and I might sit down with the records and see if we can work something out and go over them. Can I also just make the point in passing, the company has gone to a lot of trouble to put these situations and redress them and put them in place and rectify any - including reaching significant back payments and deeds and releases so it has not been sitting on its hands not working to achieve an outcome to rectify any holes that it has. Thank you, Commissioner.

PN173

THE COMMISSIONER: Nothing further, Mr Neilson? No.

PN174

MR NEILSON: No, Commissioner.

PN175

THE COMMISSIONER: In that case the matter is - obviously I am going to reserve my decision and the matter is adjourned generally. Thank you.

ADJOURNED INDEFINITELY [10.35am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #AMWU1 OUTLINE OF SUBMISSIONS PN68
EXHIBIT #PIAA1 OUTLINE OF SUBMISSIONS PN131