AG2003/7243, Transcript of Proceedings [2003] AIRCTrans 5700 (19 December 2003)

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TRANSCRIPT OF PROCEEDINGS

O/N 8256

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT CARTWRIGHT

AG2003/7243

APPLICATION FOR CERTIFICATION OF AGREEMENT

Application under section 170LJ of the Act
by Berendsen Fluid Power Pty Limited for the
certification of the Berendsen Fluid Power
Pty Ltd (Sydney) Enterprise Bargaining
Agreement 2003

SYDNEY

10.41 AM, TUESDAY, 9 DECEMBER 2003

PN1

THE SENIOR DEPUTY PRESIDENT: Good morning gentlemen, I'll take the appearances.

PN2

MR M. BALDWIN: Your Honour, I appear on behalf of Berendsen.

PN3

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Baldwin, leave was granted last time if I recall.

PN4

MR BALDWIN: Indeed.

PN5

MR I. MORRISON: Your Honour, I appear on behalf of the Australian Manufacturing Workers Union.

PN6

THE SENIOR DEPUTY PRESIDENT: Yes, last time Mr Neilson appeared so we dealt with the issue of leave for Mr Baldwin. Yes, over to you, Mr Baldwin.

PN7

MR BALDWIN: I don't seek to repeat the submissions that we made on the last occasion because they would be on the transcript suffice it to say that I spoke to your associate some weeks ago with a view to bringing this matter on. In the wake of the Unilever decision I think on the last occasion the concerns you had in relation to this agreement we would say, your Honour, were directly addressed by the Full Bench in the Unilever decision.

PN8

THE SENIOR DEPUTY PRESIDENT: Not all of them in my view but carry on.

PN9

MR BALDWIN: The issues that were concerned, if I recall, related primarily to the contractor dispute, clause 15 which is the casual and contract labour issue and also the dispute settlement procedure and there was some concern also about the union officials and shop steward clause.

PN10

THE SENIOR DEPUTY PRESIDENT: From my notes I raised with you you are quite correct, clause 12 and clause 15 and clause 17.3 which you've referred to. But I also raised with you the interaction of clause 3 and clause 5.4 which effectively provide a closed shop and you will recall that that was one of the first points I raised with you and in my view that it not dealt with at all by any of the decisions that might have occurred since then and is a fundamental point that you still need to address.

PN11

MR BALDWIN: Your Honour, if you would perhaps remind the bar table as to what your concerns were?

PN12

THE SENIOR DEPUTY PRESIDENT: You mean you haven't done your homework, Mr Baldwin?

PN13

MR BALDWIN: Your Honour, this is a stock standard agreement.

PN14

THE SENIOR DEPUTY PRESIDENT: With respect it's not.

PN15

MR BALDWIN: Your Honour, I would seek your assistance in being reminded of those issues.

PN16

THE SENIOR DEPUTY PRESIDENT: Have you read the clauses, I pointed them out to you the last time in the way they appear to interact. If you look at it clause 3, the agreement binds workshop employees who are member of the union.

PN17

MR BALDWIN: Correct.

PN18

THE SENIOR DEPUTY PRESIDENT: It doesn't bind any other employees other than union members. Then you go down to 5.4 and the first sentence says:

PN19

The employer and union agree that no employee including apprentices and trainees shall be employed other than under the terms of this agreement.

PN20

Now, the question I raised with you last time and which continues to be one that I seek your submissions on is how is the combination of those two clauses not a closed shop and therefore an objectionable provision in terms of section 170LU. Now if you haven't thought about that and haven't come prepared to deal with it I'll adjourn the matter until you have done your homework.

PN21

MR BALDWIN: Your Honour, can I just say in answer to that this is an agreement that does actually employ union people and non-union people on the same shop floor, and that's understood by my friend, and the non-union people are similarly been covered by this agreement. Now if the wording needs to be changed to reflect that then that is something that we will undertake to do.

PN22

THE SENIOR DEPUTY PRESIDENT: Well, have a look at clause 2:

PN23

This agreement shall apply to Berendsen Fluid Power Pty Limited the employer and to all its employees who are union members at the Sydney site.

PN24

It only covers union members.

PN25

MR BALDWIN: It may appear to only cover union members, your Honour, but there are numbers of non-union members on that site who are governed by this agreement.

PN26

THE SENIOR DEPUTY PRESIDENT: How can they be governed by the agreement when they are excluded by these clauses.

PN27

MR BALDWIN: If I can assist the Commission in saying that the wage rates that are within this agreement are also paid to those members as non-union members. So for the purposes of practicality those non-union members are in essence covered by this agreement. Now I appreciate your position, your Honour, what we need to do perhaps - - -

PN28

THE SENIOR DEPUTY PRESIDENT: If you appreciated it, Mr Baldwin, you would have thought about it and come prepared today. So thanks very much I've heard from you. Mr Morrison?

PN29

MR MORRISON: Your Honour, I'm hearing your arguments and I do understand - - -

PN30

THE SENIOR DEPUTY PRESIDENT: I'm not making arguments, I'm raising questions.

PN31

MR MORRISON: Your points. The issue firstly on clause 3, the parties bound, I think that 3.2 and 3.3 where employees who were members of the union Sydney site, the employees and the union are one and the same and I think it's quite legitimate for the parties bound clause to reflect because an LJ is an agreement between the employer and the union. It's not necessary for the parties bound to include the employees.

PN32

THE SENIOR DEPUTY PRESIDENT: I understand, I am not raising that as a problem. What I'm raising is the combination, the effect of the two read side by side.

PN33

MR MORRISON: Yes, but 3.2 and 3.3 are in fact the same point, where 5.4 your point made that the employer agrees that all employees will be covered by the terms under this agreement. What I think the issue you're raising - - -

PN34

THE SENIOR DEPUTY PRESIDENT: No, that's not what it says:

PN35

No employee shall be employed other than other the terms of this agreement.

PN36

MR MORRISON: Well, that's on its face of it all agreements should contain that, I mean, that's a given surely who are covered by the terms of this agreement. The clause I think that needs clarification is the application clause. If the application clause simply read:

PN37

This agreement shall apply to Berendsen Fluid Power Pty Limited, the employer, and all its employees at the Sydney site ... (reads) ... in appendix 2.

PN38

Then the agreement meets the requirements of the Act and I'm prepared to give that undertaking that that is the intent of the agreement, whether you say that would then fundamentally change to the agreement as such that it is not the agreement that was supported by the workers I would say that I'm willing to give that undertaking because it's clearly causing the concern.

PN39

THE SENIOR DEPUTY PRESIDENT: Essentially you're saying look it is an oversight.

PN40

MR MORRISON: I think what I'm saying, your Honour, is that if those words "who are union members" was not in the application clause then I would say that the discussion we're having would go away.

PN41

THE SENIOR DEPUTY PRESIDENT: I agree with you and the question on my mind is is that a substantive amendment. I can't recall print numbers straight off but in my mind there is a decision by Vice President McIntyre that would suggest such an amendment would be a substantive amendment but obviously I haven't verified that coming this morning because I thought having raised the issue last time you'd come prepared to argue with this morning.

PN42

MR MORRISON: I appreciate what you're saying but - - -

PN43

THE SENIOR DEPUTY PRESIDENT: But I know you weren't here, Mr Morrison.

PN44

MR MORRISON: But I would still say that I do not see it as a substantive amendment however that's a decision that you would have to make and obviously Mr Baldwin would have to make.

PN45

THE SENIOR DEPUTY PRESIDENT: Yes. Can I also raise with you and Mr Baldwin and I've been a bit abrupt this morning because some of the other members in the room know I'm on a tight schedule today and not wanting to muck about but get to the points and deal with the real issues. The other issues that I raised last time related to 17.3 and I wondered whether there is anything you wanted to propose on that because you will recall - and Mr Morrison won't be surprised about this I've raised it with him before - that 17.3 talks about arbitration limited to the interpretation and application of this agreement, whereas the Act in section 170LW refers to disputes over the application of the agreement.

PN46

MR MORRISON: Your Honour, best if I answer that one perhaps and I think you know the arguments I'm going to put. The reason those words are in to avoid as for greater clarity and I've used this same argument with you before otherwise we could be forever tied up with not Mr Baldwin but perhaps other legal practitioners what does application mean and we've had experience in front of other members of the Commission, lengthy discussion on what the word "application" means. So I think for greater clarity that interpretation and application exists it is not to detract from the wording of the Act but to actually focus the wording of the Act so there can be no doubt.

PN47

THE SENIOR DEPUTY PRESIDENT: Yes. I suppose is can a river rise higher than its source and since the source of the power is 170LW and the section says application.

PN48

MR MORRISON: Yes, but it doesn't detract and it doesn't give it greater powers it just simply clarifies 170LW by putting the interpretation in there.

PN49

THE SENIOR DEPUTY PRESIDENT: I'm familiar with that argument.

PN50

MR MORRISON: I'm sure you would be.

PN51

THE SENIOR DEPUTY PRESIDENT: You've got it before.

PN52

MR MORRISON: Yes.

PN53

THE SENIOR DEPUTY PRESIDENT: Well, gentlemen given that as Mr Morrison raises there is the issue with making an amendment to clause 2 and without finally deciding the matter today my recollection is that on previous practice in the Commission that probably would be regarded as a substantive amendment, and subject to further argument and further thought I'm inclined to regard it as a substantive amendment, and so therefore think that the appropriate course is to adjourn the matter so that you can take advantage of the opportunity under section 170LV to think about how you want to deal with the problem that we've been discussing and I'm really leaving it open to you to come back with whatever considered proposal you want to put. On that basis can I apologise, gentlemen, for being somewhat peremptory this morning and being driven by the clock but I think Mr Morrison is aware of other things that are on again today.

PN54

MR BALDWIN: Your Honour, might I say that this an argy-bargy jurisdiction and I think those of us at the bar table are used to that.

PN55

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Baldwin. We will adjourn now.

ADJOURNED INDEFINITELY [10.55am]