AG2004/1210, Transcript of Proceedings [2004] AIRCTrans 1555 (26 April 2004)

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TRANSCRIPT OF PROCEEDINGS


O/N 445
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

DEPUTY PRESIDENT McCARTHY

AG2004/1210

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LJ of the Act
by Liquor, Hospitality and Miscellaneous
Union-Western Australian Branch and Others
for certification of the Cadbury Schweppes
(Osborne Park) Certified Agreement 2003

PERTH

2.46 PM, THURSDAY, 15 APRIL 2004

PN1

MS K. GROVE: I appear on behalf of the AMWU.

PN2

THE DEPUTY PRESIDENT: Thank you.

PN3

MR J. NICHOLAS: I appear on behalf of the LHMU.

PN4

THE DEPUTY PRESIDENT: Thank you.

PN5

MS N. LYONS: I appear on behalf of Cadbury Schweppes.

PN6

THE DEPUTY PRESIDENT: Ms Lyons. I circulated to you a certification report. There is a number of issues identified there. All, I am hopeful, that with some explanation can allow the agreements to be certified. So can someone address me on those issues that I raised?

PN7

MR NICHOLAS: Yes, I will sir. The first question I believe is in relation to question 1.4 on the statutory declaration. There was some difference in the answers from the employer and the union, or the unions. It appears that the employer was under a misapprehension at the time they made their statutory declaration and we have discussed that and they have confirmed that their understanding is that the agreement applies to an operationally distinct part of the single business.

PN8

THE DEPUTY PRESIDENT: I think that satisfies that then, if that is the case Mr Nicholas.

PN9

MR NICHOLAS: I believe the next question was in relation to question 6.4 of the statutory declaration and the question was in relation to when the agreement was made.

PN10

THE DEPUTY PRESIDENT: Yes.

PN11

MR NICHOLAS: I can confirm that the agreement - that the final form of the agreement to be put to the employees was agreed upon by 15 December 2003.

PN12

THE DEPUTY PRESIDENT: Yes. And it was approved on 8 March.

PN13

MR NICHOLAS: That is right.

PN14

THE DEPUTY PRESIDENT: Yes. Thank you.

PN15

MR NICHOLAS: Sir, I believe the final question was at 9.2 of the certification report where you requested the parties explain the operation of - sorry sir. Subclause 9.2 of the agreement and whether that pertains to the employer/employee relationship. Sir, the LHMUs submission is that the Full Bench in the Union Lever decision which is PR940027, delivered on 31 October 2003, provided definitive guidance as to the operation of section 170LI of the Act. Sir, I have a copy of that decision if you would like one?

PN16

THE DEPUTY PRESIDENT: Not necessary.

PN17

MR NICHOLAS: Thank you sir. The union submits that the Full Bench, in that case, decided that the nature of the agreement test provided for in section 170LI, as it pertains to what they term the reference relationship, is one requiring that the agreement be considered as a whole and in terms of the actual relationship between the parties and that it shouldn't be applied clause by clause with reference to abstract notions of a relationship between parties as employer and as employee. At paragraph 168 of their decision, the Full Bench held:

PN18

The requirement it imposes is that the agreement assessed objectively and as a whole be about matters ...(reads)... the relations include the negotiating parties are replaced by the Act in the position of proxy for the employee relators.

PN19

Sir, the union submits that as an agreed term between the parties to the agreement before you, subclause 9.2 cannot reasonably be construed as taking the agreement outside matters pertaining to the reference relationship required under section 170LI. Sir, we would further submit that subclause 9.2 is not such that it affects, or precludes the agreement as a whole from being about matters pertaining to the reference relationship, as was the case in re National Transport Operations, which is PR932348. The suspect clause in National Transport was one that imposed, or sought to impose obligations on the entities outside of the agreement and subclause 9.2 in this case does not seek to impose any obligations on any outside parties.

PN20

Sir, subclause 9.2 places an obligation on the employer not to undermine the workplace safety, or employment conditions, provided for by the agreement, by the use of contract labour. It requires the employer not to enter into any contract with the contract labour supplier, or contractor, unless the terms and conditions applying to that contract are no less than those provided under the agreement to the relevant award. The obligations upon the employer party to the agreement - - -

PN21

THE DEPUTY PRESIDENT: It is just under the relevant award isn't it?

PN22

MR NICHOLAS: Sorry sir. Yes, I stand corrected sir, that is right.

PN23

THE DEPUTY PRESIDENT: But by doing so it - I think where you are referring to Mr Nicholas, is by that provision it retains the integrity of this agreement.

PN24

MR NICHOLAS: That is right sir. And in doing so preventing them from undermining the terms agreed to between the parties. Sir, we would also submit that subclause 9.2 is substantially similar in intent to the contractors' provision considered in Unilever, which is outlined in paragraph 17 and 23 of that decision. The Full Bench in Unilever found in relation to the contractor provisions in that agreement, at 183, in relation to clause 23 and appendix E as agreed terms, the latter a term of longstanding, the decision cited at 87 to 89, if properly understood and applied, are ample precedent for the inclusion of the term in the agreement. Unlike the purported operation of the provision at issue in National Transport discussed at paragraphs 129 to 131:

PN25

These clauses establish reciprocal rights and duties on the parties and persons bound by ...(reads)... but the agreement does not purport to create the rights or duties integral to such transactions.

PN26

Sir, we would further submit that subclause 9.2 in its own terms and especially with reference to the objectives of the agreement, is one that deals, in any case, with a matter pertaining to the reference relationship. The integrity of workplace safety and employment conditions and the possible degradation of these by the employers' possible use of external labour fits squarely within the concerns of the actual relationship between the employer and its employees. So sir, we would submit that the agreement satisfies the requirements of 170LI.

PN27

THE DEPUTY PRESIDENT: Yes, thank you. Ms Grove?

PN28

MS GROVE: I have nothing further to add sir, we would support the submissions that Mr Nicholas has made.

PN29

THE DEPUTY PRESIDENT: Yes. Ms Lyons you support those submissions too, I take it?

PN30

MS LYONS: Sir, yes I do support them.

PN31

THE DEPUTY PRESIDENT: Yes. Yes, thank you for those explanations. I will certify the agreement as I consider that it does comply with the requirements of the legislation and there is nothing in the agreement, including the provision just expanded upon and explained, that would prevent the agreement certification. I have and I note that I do have some reservations about whether the provision does pertain to the requisite relationship pursuant to section 170LI, but by application of the Full Bench decision in Unilever, notwithstanding that reservation, the agreement I consider to be certifiable on the basis of the principles and findings of that Full Bench decision. Should that situation change then there well may be reason to revisit the appropriateness of certification, or the capacity to certify - I do not, I hasten to add, envisage that that circumstance should arise, but I think it important that you be aware that if it does the capacity for certification might need to be revisited, which I am assuming none of you would have any objection to should that circumstance arise. The agreement will therefore be certified to take effect on and from today's date with the paper work to flow in due course. Thank you.

ADJOURNED INDEFINITELY [2.58pm]