AG2004/2006, Transcript of Proceedings [2004] AIRCTrans 1022 (19 March 2004)

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TRANSCRIPT OF PROCEEDINGS

O/N 2323

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER RICHARDS

AG2004/2006

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under Section 170LK of the Act by
Harvest Freshcuts Pty Ltd for certification of the
Harvest Freshcuts Pty Ltd Certified Agreement 2004

BRISBANE

2.01 PM, THURSDAY, 4 MARCH 2004

PN1

THE COMMISSIONER: Good afternoon, everyone. Can I take some appearances, thanks.

PN2

MS K. PARKIN: I seek leave to appear on behalf of Harvest Freshcuts Proprietary Limited. Appearing with me is MS R. TAYLOR, the People and Culture Manager, and MR J. KINGSFORD, the employee representative in this matter.

PN3

THE COMMISSIONER: Good. Thank you, Ms Parkin.

PN4

MR D. BALL: From the National Union of Workers, and with me is MR M. FURNER.

PN5

THE COMMISSIONER: Yes. Before I grant leave to intervene, Mr Ball, perhaps you could just spell out to me the basis of your standing today.

PN6

MR BALL: Yes, Commissioner. Yes, we do wish to intervene in this matter and be bound by the agreement. That is our intentions. And part of that process is that over the previous 12 months we've had a number of discussions with employees in the workplace and the employer in regards to enterprise bargaining agreements, discussions, etcetera. We have a number of members on site, and I have with me at least two letters from those employees who are saying that they wish the National Union of Workers represent them and to be bound by the current agreement. We do not wish to alter the agreement in any way. We just wish to be bound by that agreement, Commissioner.

PN7

THE COMMISSIONER: So what's the documentation that you have got there, then?

PN8

MR BALL: Yes, I can pass the documentation up to yourself in regards to membership lists, etcetera. We have - sorry, Commissioner.

PN9

THE COMMISSIONER: There's a procedure for this, though. The way in which an organisation of employees becomes a party bound for purposes of a Section 170LK agreement is specified generally through Section 170M of the Act, Section 170M of the Act, and then it's specified or codified, if you like, back in Rule 49A, and I think Form 53 or so, or 56.

PN10

MR BALL: Yes, Commissioner.

PN11

THE COMMISSIONER: Sorry, it's Form R30A. Now, I'm just wondering; what's the documentation that you have - - -

PN12

MR BALL: Yes, Commissioner. We did send to this Commission in regards to that a documentation of notification numbered paragraph 170M by an organisation of employees that wishes to be bound by the agreement in the matter of Harvest Freshcuts Proprietary Limited Enterprise Agreement 2004. That was dated 4 February 2004. And accompanying that document was the two letters from the employees on site who had indicated they wish the union to represent on their behalf.

PN13

THE COMMISSIONER: I've got a copy of your letter of 2 February 2004, but that was in relation to other matters that were on foot at the time. I don't have a copy of a letter dated other than that. Do you have a copy of the letter that you have just cited?

PN14

MR BALL: I can provide you with a copy of that, Commissioner, along with a fax header sheet which was dated 5 February 2004. That is the original document. I do have another copy with me at the moment.

PN15

THE COMMISSIONER: No, that's all right. There could well be some concern - see, this correspondence by virtue of the rule needs to be provided to the employer and the Commission prior to certification. Can I ask the employer if you have received - - -

PN16

MS PARKIN: We haven't received any correspondence, Commissioner. In our application, we did indicate that the NUW had notified us of its intentions, and that correspondence was late last year in discussions and everything else about the EB, but we haven't formally been notified since the date that the hearing was set down of any intention of the NUW. We just assumed they were relying on previous documentation.

PN17

THE COMMISSIONER: Right. Well, Mr Ball has given me a copy of a fax that presumably was sent in on 5 February 2004 to the Commission in partial compliance with Rule 49(3) - well, theoretically in partial compliance with 49(3). But as the employer, you're saying you have received no such corresponding correspondence as required?

PN18

MS PARKIN: That's correct, Commissioner; we've received nothing.

PN19

THE COMMISSIONER: Section 170M(3)(c) states that:

PN20

Before the agreement is certified -

PN21

and we haven't certified the agreement. It says:

PN22

Before the agreement is certified -

PN23

that is, in relation to Section 170LK -

PN24

an organisation of employees notifies the Commission and the employer in writing that it wants to be bound by the agreement -

PN25

and then it goes on. Now, for purpose of the Commission's purposes, I might adjourn briefly because if there's - I don't want to get into the mechanics of all of this, but we have a fax server system, so if you send a fax to us, it doesn't just come through on a normal fax; it goes into a network that has a server related to it, so anything that comes in is captured electronically and it doesn't disappear because someone pulls it off the fax or something. The log and the document are retained in the fax server system, so we never lose anything that comes in. It's impossible, unless someone comes in and physically steals the servers.

PN26

So what I propose to do is just adjourn and to have a look at the fax server log for the day on which this facsimile came in and just see whether, for the Commission's purposes, for a Section 170M(3), whether there has been notice given to the Commission, then that will determine the matter to my satisfaction for the Commission's purposes. That will, however, still leave for purposes of conformity, not just with the rule but with the Act itself, as to whether or not there has been service prior to certification on the employer. Now, Mr Ball, is it your view that you similarly faxed the employer?

PN27

MR BALL: Yes. Commissioner, I similarly faxed that document to both the Commission and the employer. There's been a number of letters which have been sent backwards and forwards to the company over this matter over quite a long period of time. I do have letters that I can give to the Commission on the company's letterhead acknowledging - acknowledging the receipt.

PN28

THE COMMISSIONER: I have your letter of 2 February in relation to the other matters which we dealt with prior to this hearing - - -

PN29

MR BALL: Yes.

PN30

THE COMMISSIONER: - - - in which you indicated that you would have an intention to - I think you indicated that it was your intention to be involved in the negotiations at least. I mean, I take it for granted that, yes, you have had an active interest in this matter and have been involved in it for reasons that I know from my previous dealings with the related Section 99, I think it was, wasn't it, I think? Yes, 99, wasn't it.

PN31

MR BALL: Yes, Commissioner.

PN32

THE COMMISSIONER: I understand that, but the issue here is another, if you like, administrative-cum-notice type requirement that the Act specifies. Now, I think we'll try and do two things. I'll adjourn just briefly and I'll go out and I will see whether we can check the fax server to see whether the Commission received the facsimile. Do you have any fax receipt at all from your fax machine of a successful send?

PN33

MR BALL: In the short time that you do take time to look at that other issue, I will look for the documentation and see what I have available to me. On most occasions we do print out when we send something to the Commission a receipt of our own to show that it has gone through. I will look at my paperwork today and see if I have copies of that.

PN34

THE COMMISSIONER: You will be able to print a report from your fax as well which will indicate the successful send, but equally so the employer - was it served direct on the employer or on the employer's representative?

PN35

MR BALL: No, it would have been sent - I'd have to refresh my memory on that particular point, Commissioner.

PN36

THE COMMISSIONER: Yes, perhaps the number that you sent it to and we might - - -

PN37

MR BALL: It would indicate that. We've had a lot of correspondence backwards and forwards between the company and ourselves over the last 12 months, Commissioner.

PN38

MS PARKIN: Commissioner, if I can just say that, yes, Mr Ball has had lots of correspondence with both us as the employer's representative and the employer, but at no time has he specifically said, in accordance with the Act, we're letting you know that we want to be bound, since that Section 99 dispute.

PN39

THE COMMISSIONER: Well, I think I've made it clear that the Act does require a specific step here, so that's what we're dealing with. My question to you is that - no, my question to Mr Ball, which he'll need to determine when we adjourn, is whether - he will identify the number, if there is a number that he sent it to, so then we'll be able to know did it go to the employer; did it go to the legal representative of the employer. Once we have established that, we can then work out what we're going to do about verifying whether the fax was actually successfully sent and/or successfully received, so that will be the next step. So whilst I adjourn and I check our fax server system, I will allow Mr Ball time just to peruse his notes and find out what numbers were used, when and what time, and then we'll see where we go from there when we're back in a few minutes. So we'll adjourn just for a few minutes.

SHORT ADJOURNMENT [2.13pm]

RESUMED [2.17pm]

PN40

THE COMMISSIONER: The facsimile log has indeed revealed that the Commission did receive the documents that Mr Ball has mentioned. They went into the file on the Section 99. They were sent in the day before the Section 99 conference and they went into the file on Section 99. Didn't survive to go into the file on the agreement, but they are retained on our fax server log, and they are indeed a completed Form R30A in relation to Rule 49A of the Act, plus the two attestations, if you like, by the members concerned, and we dealt with those two individuals, I now remember, for purposes of identifying that they were current members at the Section 99 conference. Now, that said, the next hurdle that's left for purposes of the statutory requirement is to come to the employer as to whether or not they received the completed form of the notice as well.

PN41

MS PARKIN: It's our understanding that, no, we haven't Commissioner. Ms Taylor's office has a similar server provision for their facsimiles that the Commission has, and there's no record of anything being received there. There is a fax from the NUW being received in my office on 6 February but to another member of staff, not anybody who has been involved in the Harvest Freshcuts, and it doesn't indicate whether it is in fact anything to do with Harvest Freshcuts or another matter.

PN42

THE COMMISSIONER: Yes, okay. Well, can I ask you for your view, Ms Parkin, on the whole issue of the - well, let me put it this way. In the circumstances, what is your submission?

PN43

MS PARKIN: In the circumstances, Commissioner, the whole way through this process, we have said to the union if they satisfied the Commission and they met all the requirements under the Act, we would not object to them becoming bound as we have no right to object to them becoming bound provided they satisfied you in every way that they have a right to be bound, and if you are satisfied in that regard, Commissioner, my client has no objection to the union becoming bound. However, if you are not satisfied in the entirety, then obviously I would make some submissions in that regard. But if you are satisfied that the union has done everything possible and proper in accordance with the Act, then we wouldn't object.

PN44

THE COMMISSIONER: See, the issue for the Commission is that the issue that's before me isn't a matter of the rule. The rule requires the mirror production of the documentation to both the employer and the Commission. If it was the rule, to be honest, I then have at my disposal Rule 6. This is a statutory requirement of Section 170M(3)(c). Mr Ball, have you had a chance in the adjournment to identify to which fax number you sent the notice?

PN45

MR BALL: No. Our system doesn't indicate that. Our system, I should say, is not able to indicate that; it's only a very small fax machine and it just records on a daily basis or at the time of sending any documentation if we request the machine to print out that document, otherwise it doesn't hold it and just prints it out at the end of the day along with numerous other faxes we sent at that particular time.

PN46

Commissioner, in regards to the whole issue, as I had indicated, there was correspondence and we have made the company aware since 15 October 2003 it was always our intention to be covered or bound by an agreement. We applied to this Commission for a certificate for entry into the workplace to cover discussions on that. We also lodged with this Commission and received documentation in regards to protected action and received that documentation with the BP number which went with that. We've received a number of corresponding letters from the company on the company letterhead which quite clearly recognised the documents that we had sent to them outlining the Section 170 on many occasions. I have at least 12 documents that I could go through, backwards and forwards documents, and I wasn't intending to do that today, Commissioner, but I do have those with me to be able to show that, quite clearly, the company has been fully aware since last year it's always going to be the case.

PN47

THE COMMISSIONER: No, that's all right. Thanks, Mr Ball. Look, I am aware of your involvement in this matter particularly because of the Section 99, and I know at that time of the Section 99 we spent some time identifying the status of your members in the workplace.

PN48

MR BALL: That's correct.

PN49

THE COMMISSIONER: And I think, if I recall, I carried out a verification of the members list with the current list of employees for purpose of identifying the status of the NUW in relation to the debate about its standing in relation to LK, but that's one step removed from the Section 170M(3)(c) requirement. But that said - and I accept your submission that the union has had a long-standing interest in this matter. That's one issue. The other issue is that there has been partial compliance with the requirements of Section 170M(3)(c) in that the Commission has been duly notified under the correct rule and by way of the correct form that you are seeking to be bound and that you have members who have asked you to do so, that you have derived your status from the request of your members.

PN50

Now, the only omission for my purposes is that there has been, for one reason or another, a question mark over the issue of whether or not the same forms that were duly faxed to me on 5 February, some time ago, were provided, as the Act requires, to the employer.

PN51

MR BALL: Yes, Commissioner. To the best of my knowledge, it clearly was provided to the Commission, as you have got the document in front of you, and to the best of my knowledge it was also provided to the employer. In actual fact, I had discussions with Ms Kerry Parkin in regards to just exactly that, as to membership, etcetera, within the organisation. She said that she didn't want to see who the members were because of the Freedom of Association Act. I believe we did comply with everything that was required, Commissioner.

PN52

THE COMMISSIONER: And I take your general point that it should come as no surprise to the employer that you were seeking to be a party bound.

PN53

MR BALL: Yes, Commissioner.

PN54

THE COMMISSIONER: Most of the wheel has been turned bar this one last ratchet, if you like, being the completion of the final step, that is, the notice to the employer. And for my purposes, because you have completed the facsimile by virtue of me being able to validate the facsimile, the provision of the relevant notices to the Commission, I have no doubt that if it was not carried out in relation to the employer or its legal representatives, it would only have been an administrative error and that there's no mischief intended, and I have no reason to conclude that it was administrative error on your part. It is just an administrative matter.

PN55

MR BALL: That's right, Commissioner. Because this matter has been going on for so long and it has been before the Commission recently on this particular issue and rights in regards to an enterprise agreement or not and the dispute that existed in the workplace, we were very careful to make sure that everything was complied with, and, as I said, to the best of my knowledge, everything was complied with. But if there's no documentation to show that it was or it wasn't, yes, there may be an administrative issue there that needs to be addressed, Commissioner.

PN56

But clearly, in regards to the Act, we have served the employer on many occasions our intention to be bound by the agreement and have complied by sending the documentation to the Commission, even though they may be somewhat different documentation which was required under the Act, but clearly we've covered everything that we believe we could physically do, and if there had been an omission, it wasn't a purpose omission in any way, because we were being very careful to make sure that everything was complied with, Commissioner.

PN57

MS PARKIN: Commissioner, my instructions have always been - and Mr Ball is aware of my instructions - that if they complied with every section of the Act and turned up here and satisfied you to your satisfaction that they had complied, then we wouldn't object. If Mr Ball can provide the letter with our name or letterhead or whatever on it that says that we were sent it, then we may then accept that we were, but at this point in time there's no evidence to say that we were served. And, yes, there has been ongoing disputes, and, yes, many months ago we were told that he wanted to be bound by this agreement and that his union wished to be, but we haven't formally been notified in accordance with the Act that they want to be bound by this agreement. So if the letter can be provided and before you certify it we see that letter, that may be something different, but we haven't been provided with that letter.

PN58

THE COMMISSIONER: Mr Ball, as with the copy of the fax sheet to me, do we have a copy of the fax sheet to the employer?

PN59

MR FURNER: With respect, Commissioner, I think there may be an avenue to resolve this issue. It appears that the employer is suggesting the union has not complied with 170M of the Act in regards to being notified of our intention to be bound by this agreement. Mr Ball has with him today as evidence if necessary to demonstrate that that is not the case - the union has advised the employer accordingly under 170M in respect to our endeavours to be bound - corresponding correspondence from the employer indicating their response to that correspondence.

PN60

What we don't have with us today, Commissioner - and if it's the case of the employer suggesting we hold up the certification of this agreement under a technicality, then so be it. We will be in a position to supply at a later date copies of our facsimile logs demonstrating those facsimiles that would have been sent to the company on those particular dates of our intentions of seeking to be bound by this agreement.

PN61

THE COMMISSIONER: Yes, sorry, what is this documentation that you have referred to?

PN62

MR BALL: If the Commission pleases, as I said, there's a number of documentations which I have numbered 1 to 12, without going through all of those documentations, which shows that on 15 October 2003 we wrote to Ms Taylor in regards to Harvest Freshcuts to be covered by an enterprise agreement. We received a letter back on 20 October signed by Ms Rebecca Taylor to Mr Stafford, who is the Branch Secretary, saying:

PN63

Proposed Certified Agreement. We refer to your facsimile 15 October in relation to certified agreement negotiations.

PN64

And it just said, "Please be advised" that they intend to make a certified agreement. We had then a further letter from Mr Furner to Rebecca Taylor once again referring to discussions held between yourself, and in this regard it was a Mr Dino Diagardi down south, of the same company, or a sister company in discussions to do with representation in the workplace for enterprise agreement. We received a letter back from Ms Rebecca Taylor dated 7 November 2003, once again saying, "The proposed certified agreement, Harvest Freshcuts," referring to the facsimile 7 November and the verbal request to attend a joint consultative committee. We discussed Section 170.

PN65

There was also then a further letter from our organisation dated 7 November pursuant to S.170LH, because we were intending to make an LJ at that particular time, not LK, and it listed the log of claims, etcetera. We received a document back under the heading of Livingstones Australia, who referred to the matter that the committee had decided not to extend an invitation to the NUW to attend such meetings, and also in regards to comments on 170LJ of the Act and 170LK of the Act. There was then further correspondence 1 December to the company, once again talking about entry into workplace to discuss issues in regards to Section 170.

PN66

THE COMMISSIONER: Do you have a particular item of correspondence that expressly states your intention to be bound by the agreement?

PN67

MR BALL: Okay. In regards to that, Commissioner, yes, I have got copies of each of these. Document 15 October 2003: it says in brief:

PN68

National Union of Workers is aware the current enterprise agreement covering working conditions at Harvest Freshcuts at Carole Park is to expire in early 2004. We are seeking to enter into discussions in relation to replacement enterprise bargaining agreement and be bound by any agreement that would take effect from the expiry of the current agreement. The NUW members, in conjunction with the union, will elect a representative to attend a single bargaining unit.

PN69

The second part of that - I can tender that document for you if you wish, Commissioner. I have copies for the other parties as well.

PN70

THE COMMISSIONER: The copy of the letter of 2 February 2004: was that copied to the employer?

PN71

MR BALL: We sent a letter to the company, and it would have been by post at that particular time, and we sent one to the Industrial Registrar.

PN72

THE COMMISSIONER: That's right. That letter of the 2nd: was that given to the employer? Does the employer have a record of the letter of - - -

PN73

MS PARKIN: No, Commissioner. Neither the employer or Livingstones have a record of that correspondence.

PN74

THE COMMISSIONER: See, the letter to the Industrial Registrar dated 2 February 2004 states at the penultimate paragraph:

PN75

Additionally, the union shall be seeking to be bound by the proposed agreement should the Commission ratify the agreement.

PN76

So that's not a letter that you received?

PN77

MS PARKIN: No, Commissioner. But, again, my instructions are, if you are satisfied, then we won't object, and that's always been our intention.

PN78

THE COMMISSIONER: The issue for me is that, as I've stated, I have to first of all satisfy myself - there are a few steps. The first step is I have to satisfy myself that the employer in one way, shape or form was informed that there was an intention on the part of the NUW to be bound by the agreement. That may be satisfied upon my perusal of the letter of October, if I can get a look at that, Mr Ball. And that's a letter that you're in receipt of, or you may not know? It is?

PN79

MS PARKIN: Yes, Commissioner.

PN80

THE COMMISSIONER: Well, I will have a look at the terms of that. See, that therefore would meet, on the face of it, the statutory requirement under Section 170M(3)(c) to notify the employer. It's the rule that then goes on to say under this rule use this form, and that is a rule of the Commission; it's not a creature of statute. And if I am satisfied that there had been compliance with M(3)(c) by way of the October letter, I would then use Rule 6 to waive compliance with Rule 30A, I think it is, and that would see my way through, but I'm not quite there yet. I would need to see whether the October letter is sufficient clarity to satisfy the statutory requirement as opposed to what the rules say.

PN81

MR BALL: Yes, Commissioner, I can pass that document up to the Commission, and also the reply from the company to that document, which says in part:

PN82

Please be advised that we intend to make a certified agreement with your employees and we refer to your facsimile of 15 October 2003 in relation to certified agreement negotiations at Harvest Freshcuts.

PN83

So we applied to the company in letter form; they have replied in letter form to us on the company letterhead, which I can provide both of those documents to you, accepting the fact that we have requested the company to do just exactly that, Commissioner.

PN84

THE COMMISSIONER: Ms Parkin, are you able to verify whether you were in receipt of this letter of October 15th, by virtue of the response, I presume.

PN85

MS PARKIN: We have received that, Commissioner.

PN86

THE COMMISSIONER: Well, the letter of 15 October 2003 states:

PN87

We are seeking -

PN88

and I won't read anything into the verb "seeking" as an expression of sort of prospective intent as to actual intent, but:

PN89

We are seeking to enter into discussions in relation to a replacement enterprise agreement and be bound by any agreement that will take effect from the expiry of the current agreement.

PN90

Now, I think in the circumstances of this particular matter, I think in the wider context which we have just been through regarding identifying members and so forth, and particularly having regard to the fact that the Act does require at Section 170M(3)(c) that the employer be notified of the intention to be bound, I am satisfied that the letter of October 15th, 2003 does inform the employer of the intention of the NUW to be bound by this agreement. It is not, I have to say, the case that the employer has been notified in conformity with Rule 49A by way of the use of Form R30A, but to my mind the statutory requirement, the highest stream, if you like, or the river, has been met; the requirements have been met by way of the letter of October 3rd.

PN91

As a consequence, I think the employer has not been dealt a mischief or there was no mischief intended not to disclose the union's intention by way of its failure to, in these current circumstances, make use of Form 30A by virtue of Rule 49A. As a consequence, I will waive requirement with the rules of the Act and I will grant leave to the NUW to appear and for purposes of being bound by the agreement in the event the Commission certifies that agreement. That all said and that task now completed, let's move on, Ms Parkin, to the issue of certification, which may take us less time. Mr Ball, if I recall correctly, your submission in the process of seeking leave was to also state that you did not demur from the agreement as put forward.

PN92

MR BALL: That is correct, Commissioner. We wish to be bound by the agreement and not change the agreement in any way, even though we have had some discussions with the employer and employee representative over some minor - it may be administrative error - in regards to the document moving from the previous document to the new one, to do with the disputes clause of the agreement on that particular matter, but Ms Parkin may be able to inform you more of that particular issue. But other than that, we don't request the document to be changed in any way at all, Commissioner.

PN93

THE COMMISSIONER: Thank you. Well, in the event that I do certify the agreement, I would by separate order following that cause the NUW to be bound by that agreement. There is no requirement to go in, Ms Parkin, to the issue that was in dispute with the NUW insofar as it doesn't affect any certification requirements at all.

PN94

MS PARKIN: There will be an undertaking put on transcript during the submission, Commissioner, just to clarify the intent of the parties when making the agreement in relation to the disputes procedure.

PN95

THE COMMISSIONER: Sure. Well, we'll hear from you now, thanks.

PN96

MS PARKIN: Thank you, Commissioner. This is an application under Section 170LK of the Workplace Relations Act 1996 for the certification of an agreement between Harvest Freshcuts Proprietary Limited and the employees of Harvest Freshcuts Proprietary Limited. The agreement covers any employee who is employed by the applicant whose work is in connection with the manufacture or preparation for sale or sale of packaged fruit and vegetables and associated food products for whom classifications and tasks and rates of pay are prescribed in the agreement.

PN97

In support of the application, we rely on the information contained in the statutory declaration of Mr Robin Poynton, Chief Operating Officer of the applicant. We also rely on the information contained in the statutory declaration of Mr Julian Kingsford, an employee and member of the consultative committee, who is present today and willing to supply any additional information the Commissioner may require.

PN98

Commissioner, we submit on balance this agreement would not reduce the overall terms and conditions of the employment under the relevant awards, which are the Jam, Preserved Fruit and Vegetable Processing Award (State) and the Clerical Employees Award (State). I refer to the comparative data that has been provided to the Commission in accordance with your directions order dated 25 February. It is evident that the overall employees are not being disadvantaged in any way by this agreement.

PN99

THE COMMISSIONER: You mean the employees overall?

PN100

MS PARKIN: Overall, sorry.

PN101

THE COMMISSIONER: The point being that sometimes two people in a classification could fall down whilst the others go up, and you sometimes need to identify what the - but that wasn't the case, was it? No, that's right.

PN102

MS PARKIN: No, no. That's right, Commissioner. Commissioner, in accordance with 170LJ(2), the agreement was approved by a majority of employees on 9 February 2004, with 94 per cent of employees voting in favour of this agreement. The agreement contains a dispute resolution clause at part 1, clause 9 of the agreement. Commissioner, in relation to the discussions that we have had with the NUW in the meeting and conferring process, it was identified to us that although it was always the intention of the parties to allow any employee during the disputes process to be represented by anybody of their choice, it hasn't been documented as such in the agreement, and we would like to go on record with an undertaking that, should an employee request to be represented by any person, that that request won't be denied.

PN103

THE COMMISSIONER: Can you just tell me how the disputes avoidance procedure - does the disputes avoidance and settling procedure at clause 9 actually limit that currently?

PN104

MS PARKIN: In our view it doesn't limit it, Commissioner. In our view, it's fairly straightforward and we don't think it limits it in any way. It was a concern raised by the NUW that it didn't specifically say at any time you can request that you be represented, but it was always the intention of the parties that that would always be the case.

PN105

THE COMMISSIONER: So is it the case that the grievance procedure doesn't make provision for representation?

PN106

MS PARKIN: That's right, Commissioner.

PN107

THE COMMISSIONER: Right, okay. Well, an undertaking would be required in the context of the Act, then, because the Act requires at Section 170LT(8) - and I must admit this often works for the other side most of the time, but sometimes it works this way. LT(8) requires that all the people who are subject to the agreement have access to the disputes resolution clause, and for general purposes it means people who are members of the union that it's bound by or who is a party to the agreement, if you like, employees who are members of another union, if coverage issues are satisfactory, and people who are not members of a union.

PN108

So the disputes resolution clause has to cater for this diversity, and it's often the case that where there's a heavy procedural role prescribed to one party, say a union in many cases, that that doesn't necessarily mean, although it can, that all the persons to be covered by the agreement have access to the dispute settling procedure for purposes of satisfying LT(8). It's the reverse at the moment. We're now saying that what we need to ensure in the disputes resolution procedure is that there is a representative provision which allows someone to be represented by, more than likely, the NUW in this regard, and that's the intention of the - - -

PN109

MS PARKIN: Or any person of their choice.

PN110

MR BALL: Any person.

PN111

MS PARKIN: It could be a fellow employee; it could be their brother, their mother, their partner, and that won't be denied.

PN112

THE COMMISSIONER: So the specific terms of the undertaking is then that, notwithstanding the terms of clause 9, an employee may be represented by a person of his or her choice for purposes of the progression through the dispute resolution clause.

PN113

MS PARKIN: That's correct, Commissioner.

PN114

THE COMMISSIONER: Mr Ball, is that undertaking in fact your understanding?

PN115

MR BALL: That's my understanding, because the previous enterprise agreement that this one superseded did have reference in there to "employee and/or the employee's representative," and it just left it as a very open statement, and the union wasn't wanting to close that statement down in any way to say "union representative." It was just "representative," Commissioner.

PN116

THE COMMISSIONER: That's all right. Okay. Thank you, Ms Parkin.

PN117

MS PARKIN: Commissioner, the nominal expiry date of the agreement is in accordance with paragraph 3.1 in that it's three years after the date of certification. Employees were advised in accordance with 170LK(2) of the Act that the employer intended to make the agreement and were advised in writing that they had a right to be represented if they so wished. Commissioner, that's the end of my submission in relation to the sections of the Act that we needed to comply with. I understand that there has been an issue raised by the union and that you yourself has raised a concern in regards to one section of the agreement, and that's clause 30.4.

PN118

THE COMMISSIONER: Yes, maybe not concern but interest.

PN119

MS PARKIN: Interest. And to satisfy that interest, I have just prepared some information for you, and if it pleases you at this point in time, I will go into that submission now.

PN120

THE COMMISSIONER: Yes, certainly.

PN121

MS PARKIN: The applicant is involved in the business of handling, processing and storage of items of food to ensure that the levels of unacceptable food safety quality are minimal. There's certain practices known in the industry as good manufacturing practices, or GMP, in place. Commissioner, I tender a copy of the Good Manufacturing Practice for your information, which is the current policy covering my client. The applicant's processes must comply with strict guidelines in relation to the handling, processing and storage of food.

PN122

Within the manufacturing and plant areas, the following applies in accordance with the GMP: the wearing of hairnets, no jewellery, the wearing of covered shoes, no false fingernails or nail varnish, no smoking, no eating or drinking, no chewing gum, no sitting or standing on food contact surfaces; no glass, wood, pins, staples, rubber bands or other foreign objects are allowed in the plant. And in relation to the issue that's been highlighted to us, one section that has been put into the policy and into the certified agreement is that conversation while working in the manufacturing areas is to be limited to the giving and receiving of instruction, which includes those instructions being given in English.

PN123

Commissioner, in no way did clause 30.4 be designed to be discriminatory. The applicant and their employees must be able to comply with the very strict practices set by the National Food Standards Code. Employees are welcome to speak their first language or any other language in any other area of the workplace other than the manufacturing plant and the food processing line. Most of the reasons behind it is the fact that conversation is kept to a minimum so that contamination can't occur on the food that they're processing, and the giving and receiving of instructions needs to be clear. It's a very noisy plant, and it's a requirement that people speak those instructions in English. There's a very mixed cultural employee workforce, and every person needs to pass very stringent tests to get into the workplace, and one of those things is that they be able to give and receive instructions in English.

PN124

Commissioner, if you don't have any questions on that issue, I'd like to formally submit that we believe we've met all the requirements of the Act and submit this certified agreement to you for certification today, if the Commission pleases.

PN125

THE COMMISSIONER: Just out of curiosity, when you say giving and receiving instructions, is that different from the broader idea here of, "We require English to be spoken on the shop floor"?

PN126

MS TAYLOR: The shop floor is designed to be the manufacturing plants, that is, the internal language of the business, I suppose.

PN127

MS PARKIN: So it's the conveyor belt line; it's where the food is processed. Once they move out of that plant, they can speak whatever language they choose to speak with the people that they're speaking to.

PN128

THE COMMISSIONER: Yes, okay. Mr Ball, do you have anything to say on this point at all?

PN129

MR BALL: Yes, Commissioner. There was never any discussion between the employer and myself in regards to giving or receiving instructions in English. If the employer requires that because of safety procedures, well, then, we don't have any objections to that. The comment we raise is that at times employees are on the shop floor for extreme - extended periods of time and to be able to speak English only may restrict those employees.

PN130

The workplace extends itself far more than just on the conveyer belt system. There are people on forklifts and a whole range of other dispatch areas, receiving areas and loading of truck areas other than just the shop floor. For a person to be restricted for long periods of time, which could be eight or 10 hours in a day, to not being able to speak to somebody else in their own natural language, we felt was rather restrictive. Also in regards to the agreement, even though it says that:

PN131

For the purpose of clarity of communication between staff, we require that English be the language spoken on the shop floor -

PN132

that if employees need to talk to each other on a brief issue that only English is to be spoken we felt was quite discriminatory in that particular way. The agreement doesn't outline in any way whatsoever that if somebody does speak in their natural tongue what happens.

PN133

There's nothing in the agreement that says what becomes of it, whether the person has a penalty against them or whether the company takes them to task. It just said it was a requirement of the particular enterprise agreement. And the concern that we had was that we didn't want to get into a situation further down the track, either through the disputes procedure or for a person going under another Act of government through the Discrimination Commission, who felt they were discriminated against in regards to their language. Those are the issues we raise with the company, not the giving and taking of instructions. I think that is quite important, that it is done in a very clear way because of safety issues, Commissioner.

PN134

THE COMMISSIONER: Yes. Ms Parkin, are you saying that - and correct me if I'm wrong - are you saying that the requirement that English be the language spoken on the shop floor - is that limited to the giving and receiving of - - -

PN135

MS PARKIN: Well, that is really the only conversation that can occur because of the transmission of saliva and everything else in the food plant, that it's only the giving and receiving of instructions, and I'm very pleased to say, Commissioner, my client does give its employees breaks and we wouldn't expect someone to stay in the plant for eight to 10 hours without a break, and once they leave that plant, they can speak whatever language they need to do. They have lunch breaks; they have morning tea breaks; they have afternoon tea breaks; and they have breaks away from the plant. So whenever they're away from that workshop area, they can speak whatever language they would like to speak.

PN136

THE COMMISSIONER: Yes, okay. The issue that arises is an issue that arises for certification in relation to Section 170LU(5) of the Act in relation to discriminatory provisions. As the Commission as presently constituted has only recently learnt about his own previous decision making in these matters, it appears that the Full Benches of the Commission require the Commission at first instance to be positively satisfied that there is a contravention of a clause in relation to Section 170LU of the Act, and the Commission cannot surmise a contravention, that is, it must be positively satisfied there is a contravention and that the clause contravenes a discriminatory - or, rather, anti-discriminatory provision of the Act for purposes of certification.

PN137

Now, what that means, therefore, as a consequence, whether or not the clause 30.4 is discriminatory is a matter for the conduct of the employer in the future, that is, if there is conduct that is discriminatory, then there will be relief sought under this Act then under other Acts as well, that is, you will eventually get caught by reason of contravening the Act in other Acts. It's not the case that I can surmise on the wording of the - and, as I said, it's a salutary lesson I have myself learnt in relation to Section 170LU(2A) recently, that you cannot draw conclusions about the conduct of employers from surmising what the outcome might be. You must, for purposes of certification, be positively satisfied that the clause will contravene the requirements of the Act.

PN138

That said, I am not, on the basis of what's been put to me and on the basis of the wording of clause 30.4, positively satisfied that the clause positively contravenes the Act. Only the conduct of the employer in the future will determine that course, and the relief is available should there be contravention in the future. For that reason, I am not inclined to not certify the agreement for a failure to comply with Section 170LU(5) of the Act. Now, that said, are there any other matters to be put to the Commission at all?

PN139

MS PARKIN: No, Commissioner. We just seek certification today.

PN140

THE COMMISSIONER: Okay. Mr Ball, anything else?

PN141

MR BALL: No further matters, Commissioner.

PN142

THE COMMISSIONER: Okay. Look, on the basis of the submissions that have been put to me and the extensive documentation as to the extent to which the various requirements of the Act have been met that have been prepared by the employer and/or its legal representative, I am satisfied that the agreement meets the requirements of the Act and has also satisfied the rules of the Commission. As a consequence, I certify the agreement pursuant to clause 3.1 of the same for a period of three years from today's date.

PN143

That said, I now turn to the issue of the matter of the application for a party to be bound under Section 170M(3) of the Act. I am satisfied for reasons of the lengthy explanation and investigation we have conducted to date that the NUW has met the requirements of the Act, and to the extent that the rules have not been conformed with, I waive those rules by virtue of my discretion under Rule 6 of the Act, and a separate order will issue as soon as practicable but dated from today's date binding the NUW to the agreement that has just been certified. That said, we are adjourned at last. Thanks, everyone.

ADJOURNED INDEFINITELY [2.57pm]