AG2004/1161, Transcript of Proceedings [2004] AIRCTrans 1102 (24 March 2004)

AUSCRIPT PTY LTD
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TRANSCRIPT OF PROCEEDINGS


O/N 296
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER THATCHER

AG2004/1161

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LK of
the Act by Noonans Bakery Pty Ltd
for certification of the Noonans
Certified Agreement

PERTH

11.04 AM, THURSDAY, 11 MARCH 2004

PN1

MR D. CLARKE: I appear on behalf of the applicant in this matter.

PN2

THE COMMISSIONER: Right. What have you got to tell me?

PN3

MR CLARKE: Commissioner, the applicant in this matter, Noonans Bakery Pty Ltd, have applied to the Commission for the certification and registration of a proposed certified agreement. We say that the certified agreement that has been lodged has met all the requirements that are needed and necessary for the registration of such an agreement. The agreement passes the no disadvantage test. We have another three employees who have signed - signatories to the back of the attachment to the proposed certified agreement. If I could hand those up, Commissioner, if I may?

PN4

THE COMMISSIONER: Yes, thank you.

PN5

MR CLARKE: So that takes the number of - - -

EXHIBIT #C1 - WITNESS STATEMENTS OF W. ARNOTT, A. SKIPPINGS AND M. CICOUTCHA

PN6

THE COMMISSIONER: Mr Clarke, I don't have an issue with the process. The only thing that I would like to hear probably, in the interests of time, is if you can just explain this no disadvantage test because at the moment I noted that there were 24 employees to be covered by this agreement. There is two awards mentioned, a Bakers Metropolitan Award and a Food Industry, Food Manufacturing or Processing Award, and I've noted that in the agreement there is three levels but I'm just not sure who is who, so it is very difficult to look at the no disadvantage tests.

PN7

I have received a two page statement with a couple of attachments from the applicant on 26 February and it is really just that I need to understand of these 26 people how many people are currently covered by the Bakers Metropolitan Award and how many people are covered by the Food Industry, Food Manufacturing or Processing Award. I need to also know something about how many are going to be working 12 hour shifts or what hours they're going to be working so I can get a feel for this no disadvantage test.

PN8

MR CLARKE: Certainly, Commissioner. If I just may take a minute, Commissioner?

PN9

THE COMMISSIONER: Thank you.

PN10

MR CLARKE: Thank you, Commissioner. There are 10 to 12 employees currently working under the snack food section which - their classification would be on page 8 of the agreement and the classifications that they would fall under would be from 1(a), 2(b) and 3(c). The - - -

PN11

THE COMMISSIONER: I see. So those people are - so they're covered by the Food Industry, Food Manufacturing or Processing Award at the moment, are they?

PN12

MR CLARKE: Yes, they are.

PN13

THE COMMISSIONER: Where would, when you look at the - do you have a copy of that award with you?

PN14

MR CLARKE: Yes, I do.

PN15

THE COMMISSIONER: Do you think you could just refer me to the classifications that apply then I think we will - for those people, for example?

PN16

MR CLARKE: Under the wage component, section - clause 31: Wages of the Food Industry, Food Manufacturing and Processing Award.

PN17

THE COMMISSIONER: Won't be a sec. Yes.

PN18

MR CLARKE: The Level 1 is $448.40 cents a week for 38 hours.

PN19

THE COMMISSIONER: Yes, yes.

PN20

MR CLARKE: A Level 1(a) is 456.80, is the current wage which is $12.02 cents an hour.

PN21

THE COMMISSIONER: Is that 1(a) person the equivalent of the employee Level 1(a) in the agreement? How do they match up because this award says Level 1(1), 1(a)?

PN22

MR CLARKE: Yes. Yes, I'm sorry. They actually do match up.

PN23

THE COMMISSIONER: Okay. So who matches up with 2(b) and who matches up with 3(c)?

PN24

MR CLARKE: 2(b) would be matched up with Level 2.

PN25

THE COMMISSIONER: Level 2, that is 2(b). How much does that come out at the moment, on an hourly rate? Do you have that?

PN26

MR CLARKE: $12.24.

PN27

THE COMMISSIONER: $12.24. And employee Level 3(c)?

PN28

MR CLARKE: Level 3.

PN29

THE COMMISSIONER: The hourly rate for that?

PN30

MR CLARKE: $12.83.

PN31

THE COMMISSIONER: Is there some reason to introduce the (a), (b)s and (c)s?

PN32

MR CLARKE: Yes. Commissioner, we - the Bakers level of Level 1, 2, 3 and 4, we've had their classification as per the Bakers Award and the reason we had Level 1(a), 2(b) and 3(c) was to clearly separate the rates of pay and - - -

PN33

THE COMMISSIONER: I see, okay. Well, do you want to do this - while we're on this food industry, these dozen people, so that is the rate? Now, under this award the chief difference is, what, that the 17-and-a-half per cent loading which is payable under clause 22(c), that is going and that is being included in the rates, is it, or - - -

MR CLARKE: Yes. Yes, it is.

PN34

THE COMMISSIONER: Okay. And any other offsets besides that?

PN35

MR CLARKE: I think that is the predominant area that the company looked at and the primary remedy of the company was not to look at the base rates under the food industry but to actually start the rates at $12.24 for the probationary and then move them to $12.83, which is a clear 81 cents an hour increase. It is a clear 81 cents an hour increase for employees.

PN36

THE COMMISSIONER: I just wonder is this a coincidence that the current rate for a Level 3 is $12.83 under the award and but the employee 2(b) under the agreement is $12.83?

PN37

MR CLARKE: I'm sorry. Level 1(a) is $12.02 cents and - - -

PN38

THE COMMISSIONER: Yes. That is right. And Level 2(b) you've told me is $12.24?

PN39

MR CLARKE: 2(b) is $12.83.

PN40

THE COMMISSIONER: $12.83. That is under the award? No, I understand what is in the agreement.

PN41

MR CLARKE: Yes.

PN42

THE COMMISSIONER: I'm looking at what are the comparable rates in the award and you've told me that in the award the equivalent of an employee Level 1(a) is the award Level 1(a) and you've told me that is $12.02.

PN43

MR CLARKE: Yes, yes.

PN44

THE COMMISSIONER: So a person who is under the award gets $12.02, would under the agreement get $12.24?

PN45

MR CLARKE: $12 actually 83. A Level 2(b) employee gets $12.83.

PN46

THE COMMISSIONER: Yes.

PN47

MR CLARKE: They start off on $12.24 for probation.

PN48

THE COMMISSIONER: Sorry?

PN49

MR CLARKE: Once they complete the probation then they would be on a rate of $12.83.

PN50

THE COMMISSIONER: Yes. I'm just trying to line up the award rates with the agreement rates.

PN51

MR CLARKE: Yes.

PN52

THE COMMISSIONER: So under the agreement we have employee Level 1(a), $12.24. That is right?

PN53

MR CLARKE: Under the award?

PN54

THE COMMISSIONER: Sorry, under the agreement.

PN55

MR CLARKE: Under the agreement.

PN56

THE COMMISSIONER: Under the agreement, $12.24?

PN57

MR CLARKE: Yes.

PN58

THE COMMISSIONER: Under the award that person is?

PN59

MR CLARKE: $11.80.

PN60

THE COMMISSIONER: I thought it was $12.02?

PN61

MR CLARKE: My apologies. Level 1 is $448.40, which is $11.80 a week.

PN62

THE COMMISSIONER: But is that Level 1? Is that a Level 1 or a Level 1(a) in the award that we're lining up with, employee Level 1(a) of the agreement?

PN63

MR CLARKE: Level 1 in the award is $11.80.

PN64

THE COMMISSIONER: Yes.

PN65

THE COMMISSIONER: Level 1(a) under the proposed certified is $12.24.

PN66

THE COMMISSIONER: So the increase for an employee Level 1(a) is from $11.80 to $12.24, is it?

PN67

MR CLARKE: Yes. That is correct.

PN68

THE COMMISSIONER: Okay. Can we just pause for a moment? Thank you very much.

PN69

MR CLARKE: Certainly.

PN70

THE COMMISSIONER: Yes, Mr Winter?

PN71

MR P. WINTER: Thank you, sir. My name is Peter Winter. I represent the National Union of Workers. We have members at the Noonans' site. Sir, I don't believe - - -

PN72

MR WINTER: But what are you doing? Are you seeking leave to intervene?

PN73

MR WINTER: I do, sir.

PN74

THE COMMISSIONER: On what basis? I'm looking at section 43 of the Act and I'm wondering what is the basis because obviously there is - are you a union that seeks to be bound by this agreement?

PN75

MR WINTER: Sir, we - I met with the company last week asking to be - to negotiate an agreement on behalf of the workers at the site. The company rejected our request. I'm sorry, I'm not prepared for this matter, I only found out five minutes ago that this matter was on.

PN76

THE COMMISSIONER: Obviously, this is an LK agreement that is before the Commission which I'm seeking to deal with.

PN77

MR WINTER: Yes.

PN78

THE COMMISSIONER: The Act is quite clear about the means of those matters proceeding.

PN79

MR WINTER: Yes.

PN80

THE COMMISSIONER: So you would have to make a specific - I can't allow you just to come in without making a particular application for intervention and that would have to be supported by some grounds. It is not a question of just coming in here and suddenly being able to intervene in the certification of an LK agreement.

PN81

MR WINTER: I would make that application to intervene and - - -

PN82

THE COMMISSIONER: On what basis?

PN83

MR WINTER: The basis is that I don't believe the employees have been provided with written notice within the prescribed 14 days for them to - - -

PN84

THE COMMISSIONER: You're actually seeking to intervene so that you can make submissions opposing the certification of this agreement, are you?

PN85

MR WINTER: That is right.

PN86

THE COMMISSIONER: But before we get into the grounds of seeking to oppose the certification, what are the grounds for seeking to intervene because I'm - - -

PN87

MR WINTER: Sir - - -

PN88

THE COMMISSIONER: Because you must address section 43, Mr Winter.

PN89

MR WINTER: Sir, if I - - -

PN90

THE COMMISSIONER: If you want this matter adjourned?

PN91

MR WINTER: I would seek - - -

PN92

THE COMMISSIONER: Is that your application?

PN93

MR WINTER: Yes, I would seek this matter to be adjourned so I can consider the relevant provisions in respect to making an application to intervene.

PN94

THE COMMISSIONER: But you understand what I'm saying? You don't have the right to come along as a union and hop up in the course of an intervention, in making a submission to intervene, to put submissions why an agreement can't be certified. You would have to - - -

PN95

MR WINTER: Yes, I - - -

PN96

THE COMMISSIONER: You understand?

PN97

MR WINTER: Yes, sir.

PN98

THE COMMISSIONER: So - - -

PN99

MR WINTER: If I could have a short adjournment to consider the section and then I will make the appropriate application after the adjournment.

PN100

THE COMMISSIONER: Yes. Just a moment, I just want to finish my conversation with Mr Clarke. Mr Clarke, what we have here is we have an agreement which is an LK agreement and we have a union which is not seeking to be bound by the agreement but wishes to intervene in the proceedings. You understand the purpose of this is?

PN101

MR CLARKE: Yes, I do.

PN102

THE COMMISSIONER: Do you have any objection to an adjournment to allow - - -

PN103

MR CLARKE: Yes, I do, Commissioner. They haven't made any proper application to the Commission to be heard but walked in, 14 minutes after the commencement of the matter and under section 43, under intervention generally, unless they've requested they don't want to be bound by the agreement, they're in opposition to the agreement and I believe that under section 43 and under section 42, representation of parties before the Commission, the two sections combined certainly give you the power to turn around and exclude Mr Winter on those grounds alone, Commissioner. He has no right to turn around and ask for an adjournment. He is not part of proceedings. He hasn't notified the Commission and certainly, under section 43, we ask that he be removed from the bar table so that we can proceed.

PN104

THE COMMISSIONER: Yes. Well, I am anxious to proceed because I need to finish my deliberations in respect of the no disadvantage test, in any case. But I do have a union which has approached, albeit it late, and has indicated, which seeks leave to intervene, which it must be granted by leave. I propose to give Mr Winter 10 minutes. I will just adjourn for 10 minutes and I will come back in 10 minutes, thank you, and we will proceed on that. But if you could also, in the meantime, have a look at what I'm talking about. Thank you very much.

PN105

MR CLARKE: Thank you, Commissioner.

SHORT ADJOURNMENT [11.21am]

RESUMED [11.37am]

PN106

THE COMMISSIONER: Yes. Yes, Mr Winter.

PN107

MR WINTER: Thank you for the opportunity for the adjournment.

PN108

THE COMMISSIONER: Sorry. Yes?

PN109

MR CLARKE: Just before Mr Winter starts, Commissioner, if I can draw your attention to section 43(2)(b). Mr Winter stated that there was - - -

PN110

THE COMMISSIONER: Could we just pause.

PN111

MR CLARKE: Sir.

PN112

THE COMMISSIONER: I will let Mr Winter say and then I will seek your - the opportunity. Yes, Mr Winter.

PN113

MR WINTER: Sir, I make application to be bound by the - that the union makes application to be a party to the agreement.

PN114

THE COMMISSIONER: But you can't just hop up and say that, you've got this - there is a time to be - - -

PN115

MR WINTER: Well, sir, I tender to the Commission a request on behalf of an employee of Noonans Bakery that the union represents and in request to negotiation on an agreement.

PN116

THE COMMISSIONER: Mr Winter, isn't this just evidence of a person requesting you to act on their behalf?

PN117

MR WINTER: Yes, it - I would - - -

PN118

THE COMMISSIONER: Isn't this relevant to 43(2)(a) rather than (2)(b)?

PN119

MR WINTER: Yes, it is relevant to that section, sir.

PN120

THE COMMISSIONER: Well, I'm at a loss to know the - this is dated today's date, I take it?

PN121

MR WINTER: Yes. Sir, the union has financial members at the site who are members of the National Union of Workers. The National Union of Workers is an organisation that has industrial coverage for the food industry.

PN122

THE COMMISSIONER: My difficulty is that I don't know who this person is. I don't know whether they work there or not and in circumstances such as this it is usual for a union to seek to obtain a certificate from the registry which doesn't disclose the identity of the individual but the Commission can be satisfied that the individual is an employee to be covered by this agreement.

PN123

MR WINTER: The employee wouldn't have a problem being identified to his employers. They're well aware that - of who he is.

EXHIBIT #W1 - DOCUMENT RE EMPLOYEE OF NOONANS BAKERY

PN124

THE COMMISSIONER: Mr Winter, it is pretty unusual to be hopping up seeking to be bound by agreement to which you make submissions to oppose.

PN125

MR WINTER: Sir - - -

PN126

THE COMMISSIONER: So I'm wondering whether or not you're really saying to me, on the basis of that, that you're seeking intervention on the basis of 43(2)(a)?

PN127

MR WINTER: I withdraw my previous application for the union to be made a party to the agreement and apply under section 43(2)(a) on behalf of the request from our member to represent him in this matter.

PN128

THE COMMISSIONER: What is the basis of your late request, Mr Winter?

PN129

MR WINTER: Sir, I tender another exhibit with respect to employees withdrawing their consent for the agreement. The situation is that employees have not been adequately consulted. There are a number of - - -

PN130

THE COMMISSIONER: No. Why hasn't the Commission or anybody been contacted prior to today and why are you walking in 20 minutes after the hearing has started?

PN131

MR WINTER: Sir, I was only informed at about 5 past 11 that the matter was on. So I came down as soon as I've - - -

PN132

THE COMMISSIONER: This appears to be dated yesterday or these two documents appear to be dated yesterday.

PN133

MR WINTER: I only received those by fax this morning at the same time I received the authority, sir.

PN134

THE COMMISSIONER: I see.

EXHIBIT #W2 - DOCUMENTS RE EMPLOYEES

PN135

THE COMMISSIONER: So you're making application for leave to intervene subject to 43(2)(a) on the basis that you're an organisation of employees that was requested to represent the person as mentioned in the section 170LK(4), that person being the person who is identified in exhibit W1. Is that what you're saying?

PN136

MR WINTER: That is correct, sir.

PN137

THE COMMISSIONER: The purpose of your wanting to intervene is because you want to make - making submissions in respect of that person in relation to the process?

PN138

MR WINTER: That is right, sir.

PN139

THE COMMISSIONER: Is that the only thing that you're wanting to intervene on?

PN140

MR WINTER: Yes, sir.

PN141

THE COMMISSIONER: Yes, Mr Clarke.

PN142

MR CLARKE: Thank you, Commissioner. Commissioner, Mr Winter came in under section 43 to intervene. He stated section 43. Now whether he is aware of the Act or not is not for me to determine, it is for you to determine, Commissioner, but I stress that he is unfamiliar, obviously, claiming to intervene under section 43. He is ill-prepared today. He has come in to interfere in this process and what we say, Commissioner, is his original submission under section 43, that he wanted to intervene and he was opposed to being bound by the agreement. That should - that is what we say has to be taken. He has read section 43, and changed his opinion. He has now produced documentation. The documentation he had for representation to the agreement, he had prior to coming into this court at 5 past or 10 past 11. He had that documentation. Yet he sought to be, he sought to be not part of the agreement. Now he changes his mind, produces documentation, and says I want to represent someone.

PN143

Commissioner, we strenuously urge you to take Mr Winter's first submission to the Commission under section 43, that he wanted to intervene but didn't want to be bound by the agreement. That is what he stated. He has subsequently produced documentation, changed his submission to the Commission. Sir, we say Mr Winter should be removed, he should not be granted leave to intervene. He is attempting to interfere in this process, to the detriment of the employees and the employer.

PN144

The situation is we oppose any current attendance or association with Mr Winter. We have no verification that he is an officer of the NUW. We have none of that before the court of the Commission. The - we don't even know if he has a permit card. The situation is his lack of respect to the Commission in this process, we say should be dealt with accordingly, under 43(2)(b) of the Workplace Relations Act. And we say he must not be granted leave to intervene in this matter, because his original submission was that he did not want to be bound by the agreement.

PN145

He produces paperwork that he had in his possession the whole time, Commissioner. He is changing his story as he goes along. Thank you, Commissioner.

PN146

THE COMMISSIONER: Thank you all. I think there is much to be said in what you have said, Mr Clarke, that I find this late intervention quite disruptive to the Commission, and as well as getting on with the business of the Commission. And it may be that Mr Winter in not familiar with section 43. He certainly indicated to me he didn't have a copy of his Act with him when I allowed him to have a 10 minute adjournment.

PN147

Whilst I acknowledge what you have said, that he has changed the basis of his leave for intervention, the fact is I am faced with a section 43(2)(a) late amended application for intervention. Which doesn't appear to allow much discretion on the part of the Commission. Can I confirm with you, Mr Clarke, as to whether Mr Wong is an employee of the applicant who is to be covered by the agreement?

PN148

MR CLARKE: I believe he is, Commissioner, yes.

PN149

THE COMMISSIONER: All right, what I - thank you. What I propose to do is to allow Mr Winter to make his submission in relation to the item which he said. I would like him to make that submission, and then I will reserve my decision on intervention on that basis, and we will get back to where we left off. Thank you, Mr Winter, if you could just address me on your basis.

PN150

MR WINTER: Thank you, sir. Sir, with respect to the relevant procedures under section 170LK. Senior Deputy President O'Callaghan highlighted six main obligations of employers - - -

PN151

THE COMMISSIONER: Sorry, I just missed what you said. Were you looking at section 170LK?

PN152

MR WINTER: That is right.

PN153

THE COMMISSIONER: And you were saying?

PN154

MR WINTER: Deputy President O'Callaghan set out six main obligations on employers in relation to seeking certification under section 170LK. With respect to the first obligation, provide notice of intention, sir, we would say that employees haven't been advised adequately with respect to providing them with written notice about the certification of this document.

PN155

THE COMMISSIONER: Why is that?

PN156

MR WINTER: They were given a copy of the document, but they have never been advised with respect to when the matter was going - when the intention was made for this matter to be certified.

PN157

THE COMMISSIONER: Well they don't have to be. Are you looking at the Act? I'm looking at 170LK(2). I mean, it is not case law we're talking about. Mr - SDP O'Callaghan was merely summarising what is in the Act. I'm guided by the Act, that is what I'm looking at.

PN158

MR WINTER: Yes, sir.

PN159

THE COMMISSIONER: And there is nothing - there is certainly nothing in 170LK(2) to say that at the time that the document goes to employees, they have to be advised. They have to be advised of when the thing is going to the Commission.

PN160

MR WINTER: I take the point, sir. With respect to consultation, sir - - -

PN161

THE COMMISSIONER: Which section are you looking at now?

PN162

MR WINTER: Subsection 5 - LK(5). If an organisation is requested to represent such a person, being an employee, the employer must give the organisation reasonable opportunity to meet and confer with the employees about the agreement, before it is made. Sir, we have never been given that opportunity.

PN163

THE COMMISSIONER: Why is that?

PN164

MR WINTER: You would need to ask the employer why they haven't given us the opportunity.

PN165

THE COMMISSIONER: No, no. It relates to 170LK(4). LK(4) says that an organisation is entitled to represent a person. The person may request the organisation to represent the person in meeting and conferring with the employer about the agreement.

PN166

MR WINTER: Yes. We requested that the employer meet and confer, and they rejected our request.

PN167

THE COMMISSIONER: Well tell me about that.

PN168

MR WINTER: I attended last week at the employer's premises. Sir, I can't give you exact date.

PN169

THE COMMISSIONER: Sorry, last week? That would have been after the event wouldn't it? That would have been after the agreement was signed.

PN170

MR WINTER: By the majority of employees, yes that is correct. We have never - we would - - -

PN171

THE COMMISSIONER: This is the process. You said to me that the process for making the agreement, you have some objections, but the only evidence you have given me so far is some meeting which has occurred after the event. I mean - - -

PN172

MR WINTER: Sir, the employees - - -

PN173

THE COMMISSIONER: I can't see how that action is contrary to the Act, to 170LK(5). It says there, before it is made. Do you see what I'm saying?

PN174

MR WINTER: Yes.

PN175

THE COMMISSIONER: 170LK. About the agreement, before it is made.

PN176

MR WINTER: Sir, the employees were never consulted about the contents of the agreement.

PN177

THE COMMISSIONER: Sorry, you are changing. I'm just wanting to go through your points one at a time, so you have a fair opportunity.

PN178

MR WINTER: Yes, sir.

PN179

THE COMMISSIONER: Are we moving on from LK(5)?

PN180

MR WINTER: Sir, I submit that at no stage has the relevant organisations had an opportunity to meet and confer prior to the agreement being formulated.

PN181

THE COMMISSIONER: Tell me where the Act was contravened.

PN182

MR WINTER: Sir, that employees and their union were not given an opportunity to discuss the terms of the agreement, before it was made.

PN183

THE COMMISSIONER: Sorry, are you saying that your - well there's two points that, isn't it. You're saying that your member wasn't - which section - explanation of terms. It is not an obligation on the employee, it is an obligation on the employer.

PN184

MR WINTER: Sir, I don't believe that the employees have had the agreement fully explained to them, and understand the relevant provisions.

PN185

THE COMMISSIONER: What is the basis for that? How can you say that, I have got no evidence to say that. I have got nothing before me.

PN186

MR WINTER: True, I accept the point.

PN187

THE COMMISSIONER: And I have already made the point about the union. The union has a right before the agreement is made. But that time is past.

PN188

MR WINTER: Yes. Sir I would seek to adjourn the matter so that I could call a witness to provide evidence in respect to the process that was - or the lack of process in discussions with - or consultation was - - -

PN189

THE COMMISSIONER: But in support of what? I couldn't just have an adjournment. In support of what?

PN190

MR WINTER: In respect to the appropriate consultation that should - or the elaboration as to the contents of the agreement and the explanations with respect to employees about the agreement, and how it affects the relevant awards to which it overrides. Those discussions, I would seek to lead evidence that that did not occur. The employees aren't fully informed as to the contents, and therefore could not give true consent, with respect to the registration of - or acceptance of the agreement. Because they are not fully informed. And I - in support of that, the numbers of employees that have withdrawn their consent, with respect to the registration of the agreement.

PN191

THE COMMISSIONER: The Commission still has a valid majority before it. There is certainly evidence here of - even with two persons withdrawing their consent, there is a valid majority.

PN192

MR WINTER: There are four persons, plus - - -

PN193

THE COMMISSIONER: I think you only handed up two didn't you? I'm sorry, there are four persons.

PN194

MR WINTER: That was all that I was able to obtain. That was all that was available at the time. I would seek to lead evidence on the issue as to whether valid consents were actually given.

PN195

THE COMMISSIONER: So what you are saying to me is that you seek leave to intervene for the purpose of making the submission that you have made. And only two of them I think were invalid, but the one that you're saying to me is that it appears to be that you're saying that you would produce evidence - you wish to produce evidence to show that reasonable steps weren't taken to explain the agreement to the employees. Is that the end of your submission? Does that complete your submissions?

PN196

MR WINTER: Yes, sir.

PN197

THE COMMISSIONER: You have no other evidence that you want to bring before me?

PN198

MR WINTER: No, sir, not at this stage.

PN199

THE COMMISSIONER: No other submissions to be made?

PN200

MR WINTER: No, sir. Thank you, sir.

PN201

THE COMMISSIONER: Very well I would just - I now propose to go back to talk to Mr Clarke. First of all, Mr Clarke, you might like to say something in respect of the submissions, and then we can go back to the no disadvantage test.

PN202

MR CLARKE: Thank you, Commissioner. Commissioner, Mr Winter is speculating again. He said he wanted to be bound by the agreement, now he opposes the stepping process to the agreement. Which he has no knowledge of whatsoever, on the stepping process. Commissioner, I have personal knowledge of the stepping process that was adhered to and the notice that was sent and handed out on 2 February to the employees at Noonans Bakery, dated 2 February - - -

PN203

THE COMMISSIONER: Have you got a copy of that?

PN204

MR CLARKE: Yes, it is - I have a stamp of the Commission on it.

PN205

THE COMMISSIONER: Sorry?

PN206

MR CLARKE: I have a stamp of the - received on 17 February 2004.

PN207

THE COMMISSIONER: I see.

PN208

MR CLARKE: This is the notice that is required under the Act to be - now the notice was not posted, it wasn't sent by registered mail. The notice was hand delivered by me personally to the employees on that day, and dates thereafter. Not one employee was signed up inside the 14 days. I was back there at Noonans Bakery prior to the 14 days to speak to all employees about their concerns, and answer all questions. And Mr Clinton Turley also answered questions about the proposed certified agreement. At no stage was any person seeking leave of a union to intervene during that 14 day period.

PN209

Now that is fact, Commissioner, not speculation. Mr Winter was not there. He is clutching at straws and he is speculating before the Commission that Damien Clarke, agent for the applicant in this matter and Noonans Bakery, have breached conditions required under section 170LK to have a proposed certified agreement registered. It is pure speculation, and it is a lie, Commissioner. He was not there, he has no knowledge, he is inventing submissions before the Commission today. He now opposes aspects of that. He is opposing saying that the employees never had it properly explained. It was properly explained. He is speculating.

PN210

THE COMMISSIONER: Let me just have a look at the statutory declarations for a moment. I am looking at 5.4 of the statutory declaration.

PN211

MR CLARKE: Yes.

PN212

THE COMMISSIONER: Which is signed by.

PN213

MR CLARKE: Mr Clinton Turley, yes.

PN214

THE COMMISSIONER: Mr Clinton Turley, who is the general manager of Noonans. It says here:

PN215

A meeting was held with all employees on this date to explain the conditions of the proposed certified agreement. Further meetings were held with all employees on the 3rd, 10th, 13th, 16th and 17th February 2004, to answer all questions.

PN216

Are they the meetings that were held by you Mr Clarke?

PN217

MR CLARKE: Yes, they were. And Mr Turley did attend some of those meetings. And the employees were told they were not to sign any documentation within 14 days.

PN218

THE COMMISSIONER: But there were meetings on 3, 10, 13, 16 and 17. There were four meetings. Why was there five meetings?

PN219

MR CLARKE: To enable the employees to be able to read the proposed certified agreement and answer any queries or questions that they may have had.

PN220

THE COMMISSIONER: So not all employees were there on all occasions. But there were five meeting to get it across to all the employees?

PN221

MR CLARKE: That is correct, Commissioner.

PN222

THE COMMISSIONER: Would have employees gone to more than one meeting?

PN223

MR CLARKE: Yes, there were employees who - and I went to the lunch room to catch up with employees over their breaks. And I also had phone calls from employees as well, about certain sections of the proposed certified agreement, because on the letter that was sent to the employees, Commissioner, my name and telephone number was on the letter. And I also advised the employees when I handed this out, that if they wanted to speak to me off site and they had any concerns about any aspect of the proposed certified agreement, they were quite free to ring me. And some employees did take that opportunity to speak to me about aspects of the certified.

PN224

So the process that we went through was in compliance with the Act. And that is a fact, that is not speculation, Commissioner. Mr Winter requested a meeting to confer. He did no such thing. He requested, he turned up, and he wanted to be - have discussions about the proposed certified agreement. He never stated who he was representing, and he asked about the certified and he was told no. That is a fact. So he left. He turned up, in breach of section 49 of the Act. He failed to give notice under the State Act. He turned up as an organiser for the Food Preservers Union, not as the NUW organiser. He never showed a permit, he was advised he was in breach of section 49. Yet he still came back the following day to speak to Mr Clinton Turley.

PN225

Now the employer has been very very co-operative with Mr Winter, and the situation is the employees have been consulted with this proposed certified agreement. Mr Winter is attempting to interfere and obstruct. He is not seeking to be bound. His motive is to interfere and obstruct. And coming in seeking leave for the matter to be stood down so this trade union can go and do a hatchet job is something that we oppose, Commissioner. We oppose. We oppose them being part of the certified agreement, totally. They do not have the interests of the employees at heart. The employer has the best interests of its employees at heart.

PN226

So we have done everything we believe necessary to conduct ourselves in the manner far in excess of the Act, to give people the opportunity to sign a proposed certified agreement, without fear, pressure, influence, at all. It has been confidential, so we find it very strange that Mr Winter is now attempting to undermine this propose certified agreement for whatever purpose he is seeking. He turns up as an organiser for the Food Preservers Union, he comes here today that we don't know if he is an authorised representative of the NUW. We don't know. He has made verbal speculation here before the Commission, he has got no documentary evidence to support it. And we say he should be removed from the Bar table.

PN227

THE COMMISSIONER: Mr Clarke, I wonder if you could help me. I have got exhibit W1 which has the name of one employee, and I have exhibit W2 which has the name of four employees. I don't know whether those five were part of the valid majority or they weren't part of the valid majority. Can you help me with that?

PN228

MR CLARKE: No. I know nothing about these people who have signed letters yesterday or today - - -

PN229

THE COMMISSIONER: You have given me an agreement which has got quite a number of signatures - - -

PN230

MR CLARKE: 17.

PN231

THE COMMISSIONER: And you also have given me three more this morning, and I just - that is 17. We know that there is a total of 24 employees and I am trying to work out whether these five are part of the 17 or they are part of the 17/5.

PN232

MR CLARKE: Well there are actually 21 employees at the moment, Commissioner, and we certainly believe we had 17 signatures out of the 21 employees. Some employees have left, but at the time there was 24, now there is 21, and I don't know who those people are who have changed their mind. They haven't approached the company or myself about why they have changed their mind, or they seek to withdraw.

PN233

THE COMMISSIONER: Mr Winter, what is your attitude to providing Mr Clarke with a copy of this W2?

PN234

MR WINTER: I would oppose provision of that - I am happy for the Commission to verify that these are employees by - I believe you should be able to - - -

PN235

THE COMMISSIONER: I think that would be a question for you to verify. You would be required to go to the registrar and provide that they are employees in the first place.

PN236

MR WINTER: Well I could have the - - -

PN237

THE COMMISSIONER: It is a question of whether you want the employer to know the names of these individuals.

PN238

MR WINTER: No, I would prefer that not to be the case.

PN239

THE COMMISSIONER: Not to be the case. Well we will come to that later then, thank you. Is there any - - -

PN240

MR CLARKE: So, Commissioner, I am asking the question. Before we proceed, I am still seeking leave - Mr Winter sought leave to intervene, I am still seeking leave that he not be granted leave to intervene before we proceed.

PN241

THE COMMISSIONER: I am proposing to keep that in abeyance and think about it as we proceed with the normal business of the - Mr Winter has no further submissions to make to the Commission, he has indicated that to me, and I asked him and you said that you had no further - - -

PN242

MR WINTER: That was in relation to the intervention. I would - I do not believe the agreement would meet the no disadvantage test, and I would seek to make submission in respect to that.

PN243

MR CLARKE: Commissioner, he is changing his story again. He is opposing being bound by the agreement. He is now changing his story again. He doesn't seek to be bound by it, he is opposing aspects of the proposed certified agreement. He is falling back under section 43. He is under section 43 - - -

PN244

THE COMMISSIONER: There is an authority I want to check out on before I do this. I mean, this is inconvenient that these proceedings, I think you would have to agree to that, Mr - - -

PN245

MR WINTER: Sir, I apologise. It is due to the late advice. I was not aware of the listing of this matter. I'm not a regular attendee before the Commission, so I apologise for my unfamiliarity of the Act but I'm just representing - - -

PN246

THE COMMISSIONER: But, Mr Winter, I asked you earlier. I said: What is the grounds of your intervention? And you said you wanted to intervene for the purpose of addressing why the process and I thought that is what you said. I asked you twice.

PN247

MR WINTER: Sir.

PN248

THE COMMISSIONER: Now you're saying to me that is not just the reason why you want to intervene. You want to intervene for that but you also want to intervene in respect of other aspects of the certified agreement.

PN249

MR WINTER: Sorry, sir, I misunderstood the Commission. I - there are elements with respect to the registration process, the process that was followed by the employer in informing its employees. One of those elements is the employees not being fully informed as to their basic entitlements under the award system which they're - and the discussions with the employees about the changes that the agreement makes to those basic entitlements are underpinned in the relevant state awards which this agreement would over-ride.

PN250

THE COMMISSIONER: I think you said that to me. You said, and I said to you: Show me the section of LK. And you took me to a few but you then seemed to circle on LK(7), I think, which is my understanding, somewhere there. And I said: Is that it? If so, that is the submissions that you want to make should intervention be granted.

PN251

MR WINTER: Sir, LK(7) - - -

PN252

THE COMMISSIONER: You said: Yes. Now you're saying to me that you want to make more submissions, you want to suppose it on other grounds.

PN253

MR WINTER: Sir, the situation is that the agreement and its impact hasn't been fully - the employees aren't fully aware of its impact because the - - -

PN254

THE COMMISSIONER: That has been your submission, I think. That is your submission. That is your submission to me, isn't it?

PN255

MR WINTER: Yes. And that is why we're here today.

PN256

THE COMMISSIONER: Yes. The question is, is there any other thing because I'm not sure whether you're proceeding with that ground alone? I mean you may want to say that there is - - -

PN257

MR WINTER: But that - - -

PN258

THE COMMISSIONER: LTs got abundant grounds for why the Commission can't - - -

PN259

MR WINTER: Sorry, sir, that lack of understanding, obviously impinges on the employees' knowledges as to the effect of the new agreement upon them. That lack of explanation obviously effects their understanding of the re-worded - or the new document and its impact and how it applies, basically how it compares to their basic entitlements under the awards. I see it is a natural progression that because they haven't been fully informed the employees aren't aware of the consequences and its - I submit that a submission with respect to meeting the no disadvantage test is as a consequence of the employees not being fully informed.

PN260

THE COMMISSIONER: No, no. The no disadvantage test is a question of fact, it is a simple comparison. It doesn't relate to opinion, it is just this is what the award says, this is what the agreement says, and that is a fact.

PN261

MR WINTER: Sir, the - - -

PN262

THE COMMISSIONER: You just look at it, you look at it and the Commission - - -

PN263

MR WINTER: True, sir, but I note that the agreement doesn't even contain references to the relevant state awards. I'm not aware whether the Commission actually knows what state awards this agreement is impacting upon.

PN264

THE COMMISSIONER: I have, I have a due application with awards and when you came in we were going through the no disadvantage test.

PN265

MR WINTER: Sir, again, I apologise because I wasn't aware of this matter. I haven't seen the documentation that is before the Commission. The relevant awards that come to mind, and I don't know whether they appear in the submissions to the court, would be the Bakers Metropolitan Award, the State Shop and Warehouse Award, the Food Preservers Award, just from the top of my head, and I don't - I'm not aware whether those are elements of the current application because I haven't seen any documentation because of the late advice with respect to this.

PN266

THE COMMISSIONER: I would need more than something from the top of your head, I would need evidence that those are the applicable awards.

PN267

MR WINTER: Well, sir, I'm happy to give evidence. I'm a union organiser for the Shop Distributive and Allied Employees Association, both the Western Australian State Registered Union and also the West Australian branch of that union. I'm also an organiser with the Food Preservers Union, state registered union, who is affiliation with the National Union of Workers. I can provide the - because I have - I am the union organiser for the site and those relevant awards do apply to the site.

PN268

THE COMMISSIONER: Thank you. So, Mr Clarke, you're saying you would prefer that this request for intervention be decided prior to moving forward with the discussion on the no disadvantage test, are you?

PN269

MR CLARKE: Certainly, Commissioner. Mr Winter has just given evidence that the Food Preservers Union is affiliated with the NUW. He never said he was an official of the NUW. He turned up saying he was an organiser with the Food Preservers Union. Now, the situation is we've got no evidence of a link between the Food Preservers Union and this Commission, there is nothing established. He is here on spec again, Commissioner. He is putting submissions to this court today that there is an affiliation, some sort of affiliation. They're two separate entities, the NUW and the Food Preservers Union. The respondents to the award are the Food Preservers Union.

PN270

Now, I'm sorry, but I don't trust Mr Winter because he keeps changing his story which seems to be the pattern for that particular union and they keep changing their story. And quite frankly, Commissioner, we don't want any part of that because the situation is we will speculate and say false representations have been made to the four employees who've been misguided, misdirected and, we will go as far as saying, deluded in what they should and shouldn't be doing. We have no evidence of that, they're speculating. If he is allowed to speculate, we oppose his pure speculation on what he is trying to do here today. He opposes. He keeps coming back, he opposes the process of the agreement, he opposes the agreement against the NDT. He hasn't seen documentation. He is speculating on matters before the Commission - - -

PN271

THE COMMISSIONER: Yes. Isn't it so though that if five employees decide they want to oppose the agreement that doesn't mean to say the agreement falls over?

PN272

MR CLARKE: No.

PN273

THE COMMISSIONER: The ..... a valid majority. What he is saying is that agreement wasn't appropriately made. That is all I can hear him say, as well as saying that - I think that is what he is saying, although I'm not sure. Mr Winter, 43 does say an organisation of employees. That is a registered organisation of employees. What are you authorised to be here today as?

PN274

MR WINTER: Sir, I'm an organiser with the National Union of Workers. Mr Wong is both a member of - - -

PN275

THE COMMISSIONER: The National - - -

PN276

MR WINTER: - - - the National Union of Workers and also the Food Preservers Union, so - - -

PN277

THE COMMISSIONER: You are.

PN278

MR WINTER: But because I'm in this jurisdiction I'm wearing my National Union of Workers hat before this court.

PN279

THE COMMISSIONER: Okay. So what are you? What is your role in the National Union of - - -

PN280

MR WINTER: I'm an organiser.

PN281

THE COMMISSIONER: You're an organiser.

PN282

MR WINTER: Sir, unfortunately my authorities were stolen out of my car so I'm unable to present my authorities to you. I can present my authority from - my Western Australian authority with respect to the Food Preservers Union.

PN283

THE COMMISSIONER: Well, that is not very relevant for me, is it, because your basis, you must be an organisation of employees within the Federal Act.

PN284

MR WINTER: Well, the only evidence I have with me, sir, is - - -

PN285

THE COMMISSIONER: No, well, if you say that you're an organiser of the National Union of Workers I will accept that.

PN286

MR WINTER: I will give you my business card as - - -

PN287

THE COMMISSIONER: No, I will accept that if that is what you're saying.

PN288

MR WINTER: Right.

PN289

THE COMMISSIONER: You are saying that Mr Wong is the employee identified in W1, is a member of the National Union of Workers?

PN290

MR WINTER: That is correct, sir.

PN291

THE COMMISSIONER: I see. I want to look at an authority before we go any further, thank you. Do you want to say anything further in respect of this intervention, Mr Clarke?

PN292

MR CLARKE: No, Commissioner. If we can have this intervention matter determined before we proceed.

PN293

THE COMMISSIONER: That is your preference?

PN294

MR CLARKE: That is our preference. Thank you, Commissioner.

PN295

THE COMMISSIONER: Very well. I will adjourn for a few minutes. Thank you.

PN296

MR CLARKE: Thank you.

SHORT ADJOURNMENT [12.20pm]

RESUMED [12.38pm]

PN297

THE COMMISSIONER: This morning whilst the Commission was in the process of hearing this application to certify an LW agreement a representative from the National Union of Workers arrived late, for which he has apologised, and sought leave to intervene in the matter because he had been requested to represent a person who would be covered by the agreement. I accept that Mr Winter is an organiser of the National Union of Workers and on the evidence I accept that the employee in exhibit W1 is an employee who would be covered by the agreement. In the circumstances I have no discretion because the Act is quite clear under section 43(2) that I must grant the leave to intervene and intervention is therefore granted on that basis, that is on 43(2)(a).

PN298

The process I propose is as follows, that Mr Winter will, by close of business on Tuesday, provide to the Commission and serve a copy of the employer, representative of the employer, an outline of submissions as to why he believes that the Commission does not have jurisdiction to certify the agreement. Also I would like, by close of business on Tuesday, for the representative of the employer to provide me with a schedule just showing the classifications in the awards as lined up with the classifications in the agreement.

PN299

I then propose, subject to the parties' agreement, that we will set this down for hearing on, I don't mind, it could be Thursday or Friday of next week. That would give Mr Winter an opportunity to call evidence from the employee who he represents as to the applicability of the relevant section and, of course, I presume that the employer would then want to also call evidence from the persons who made those such explanations to the employees and I will just hear the evidence and make a decision on that particular basis. But I think it is a matter for waiting to see what the union outline of submissions is and then you can make your own choice.

PN300

So if we left it on that basis on the close of business, say, Tuesday. If each of you could advise my associate by close of business Wednesday of the witnesses you seek to call, if any, and then we would set it down for, I don't want to delay this matter, Thursday or Friday to hear those submissions and also to deal with any other aspects relating to the certification of the agreement. Which would be your preference? Would it be preferable to be Thursday or Friday? May I ask you first, Mr Clarke, because you have been disadvantaged?

PN301

MR CLARKE: Yes, Commissioner. We are opposed to being part - they've been granted leave to intervene. I take it they seek to be bound by the agreement.

PN302

THE COMMISSIONER: No, they haven't sought to be - - -

PN303

MR CLARKE: They haven't sought that? Certainly. Well - - -

PN304

THE COMMISSIONER: They have the right to intervene in my opinion and they have the right to make submissions as to jurisdiction relating to why the agreement may not be certified and, therefore, the hearing on Thursday or Friday would be to enable them to make that submission or call such evidence to support that submission but that has to be preceded by a written outline so that no one is caught off guard. That is the focus of the hearing and if there is evidence, which I presume there would be, not for the employer, which puts a contradictory view, I will hear that at the same time. I will also hear at the same time the rest of the proceedings relating to the no disadvantage test.

PN305

MR CLARKE: Thank you, Commissioner. So long as we have this - - -

PN306

THE COMMISSIONER: That is what I'm saying.

PN307

MR CLARKE: Yes.

PN308

THE COMMISSIONER: I'm not going to proceed unless the union, I emphasise this, that that timetable is kept. So what I'm asking you is would you prefer that that hearing be on Thursday or on Friday of next week?

PN309

MR CLARKE: That is Friday, 19 March, is that correct? Yes.

PN310

THE COMMISSIONER: Yes.

PN311

MR CLARKE: Yes, Commissioner.

PN312

THE COMMISSIONER: Mr Winter, is Friday - - -

PN313

MR WINTER: Could I inquire what time you would be proposing this - - -

PN314

THE COMMISSIONER: Well, I was thinking 10 o'clock?

PN315

MR WINTER: 11 would suit me better if that is - - -

PN316

THE COMMISSIONER: 11 o'clock? Yes, we will make it 11 o'clock then. Very well, this - - -

PN317

MR CLARKE: That is on - I'm sorry, Commissioner, I just want to clarify.

PN318

THE COMMISSIONER: Yes.

PN319

MR CLARKE: If I can just write that down. That - - -

PN320

THE COMMISSIONER: What we're saying is that the union has been granted leave to intervene in accordance with section 43(2)(a), that is it. That is as I understand the application that has been made today and that certainly, I'm clear that there has been not an application under 43(2)(b). And it has been outlined to me that the union wishes to

PN321

raise certain issues which relate to the jurisdiction of the Commission which would prevent it from certifying the agreement. What I'm saying is that the union must provide, in writing, an outline of the submissions it wish to make on those grounds, both to the Commission and serve a copy on yourself by close of business on Tuesday. And I also said I would like some information from you by close of business on Tuesday.

PN322

By close of business on Wednesday I want to hear from you both, through my associate, about what witnesses, if any, you might be calling in support of, well, basically, the union's submission in relation to jurisdictional objections. And then that will then be heard and determined on the Friday, along with the remainder of the discussion that we were having about the no disadvantage test.

PN323

MR CLARKE: Certainly. The union did say - I've got everything down here, Commissioner, but the union, at this stage, if I can just clarify that, aren't seeking to be bound by such an agreement?

PN324

THE COMMISSIONER: Is that correct, Mr Winter?

PN325

MR WINTER: Yes, that is correct.

PN326

THE COMMISSIONER: Thank you.

PN327

MR CLARKE: Thank you, Commissioner.

PN328

THE COMMISSIONER: Very well. This matter will be adjourned till 11 o'clock next Friday, that is 19 March. Thank you.

ADJOURNED UNTIL FRIDAY, 19 MARCH 2004 [12.46pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #C1 - WITNESS STATEMENTS OF W. ARNOTT, A. SKIPPINGS AND M. CICOUTCHA PN6
EXHIBIT #W1 - DOCUMENT RE EMPLOYEE OF NOONANS BAKERY PN124
EXHIBIT #W2 - DOCUMENTS RE EMPLOYEES PN135