AG2004/2065, Transcript of Proceedings [2004] AIRCTrans 1613 (28 April 2004)

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TRANSCRIPT OF PROCEEDINGS


O/N 6780

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER FOGGO

AG2004/2065

APPLICATION FOR CERTIFICATION OF
AGREEMENT

Application under section 170LJ of the Act
by Automotive, Food, Metals, Engineering,
Printing and Kindred Industries Union-Technical
and Supervisory Division and Another for
certification of the Accord Customer Care
Solutions (Vic) Pty Ltd Certified Agreement
2003

MELBOURNE

4.11 PM, MONDAY, 19 APRIL, 2004

PN1

MS K. WILD: I appear for the Australian Manufacturing Workers Union with MR C. PANDOLFO.

PN2

MR G. NELSON: I seek leave to appear in this matter for Accord Customer Care Solutions and I appear with MR G. SABAN who is the Victorian manager for that company.

PN3

THE COMMISSIONER: On what basis do you seek leave, Mr Nelson?

PN4

MR NELSON: That this is a difficult and complex matter and that my client doesn't have knowledge of the industrial relations system and they require professional advice. If the Commission pleases.

PN5

THE COMMISSIONER: Yes, thank you. What is the view of the union in relation to this?

PN6

MS WILD: We don't oppose leave.

PN7

THE COMMISSIONER: Yes. Leave is granted.

PN8

MR NELSON: If the Commission pleases.

PN9

THE COMMISSIONER: Yes, Ms Wild?

PN10

MS WILD: Thank you, Commissioner. This is an application to certify the Accord Customer Care Solutions (Vic) Pty Ltd Certified Agreement 2003. Commissioner, this agreement comes from a bargaining period that was notified last year where there has been extensive negotiation between the parties and some industrial action taken in August last year in relation to the agreement. The Commission might remember - I am not sure - there was a - I have been instructed that there was an issue that came before you in relation to this matter last year where there was also redundancies that needed to take place at the site.

PN11

And it was a recommendation of yourself that those redundancies be dealt with, in the first instance, with agreement around the operative date of this proposed agreement, that being 1 August 2003, and then once redundancies were dealt with then the negotiations would continue for the certified agreement and that is what happened, Commissioner. It was voted on 14 November originally and that was with all the employees present and management present. That is the document that you have got that has been lodged with the Commission.

PN12

All the requirements of the Act have been met in relation to - the document was explained and the employees had access to it for 14 days in relation to that. Then there was after that - that vote, there was some problems with the - the union didn't receive any signed documentation back from the company. Mr Pandolfo rang the company and said the 21 days are going to be up shortly, or they are up, and what is happening. And they were advised that the company had changed their mind in relation to the agreement even though they had been present when the document went to the vote on 14 November 2003.

PN13

The union - there was some discussions that went on and stuff trying to get the agreement to - the documentation. Due to that there was obviously a delay in the 21 day time period for lodgment so the union conducted another vote of employees on 3 March because there had been some changes in relation to the redundancies and what not, but anyway, on 3 March there was another vote and it was approved by the valid majority. And so we are here today to seek certification of this agreement and we have provided a statutory declaration and a copy of the signed agreement, the agreement that was agreed between the parties last year.

PN14

And we would rely on our statutory declaration in relation to the requirements of the Act being filled out in relation to that. We say that the agreement should be certified despite what the company - the submission that we are instructed that they are going to put, is that they oppose certification. And we would say that is the - as far as certifying an agreement there are a number of stages that are undertaken and that is this negotiation stage and that was undertaken. There was extensive negotiation between the parties and there is no dispute about that as far as I understand.

PN15

Agreement was reached between the parties as is required and that agreement was put to the members and the other employees and it was approved and certification is now just a formality in the process and we would ask that the agreement be certified.

PN16

THE COMMISSIONER: Yes.

PN17

MS WILD: I will leave it there for now.

PN18

THE COMMISSIONER: Thank you. Mr Nelson?

PN19

MR NELSON: If the Commission pleases it is a most unusual situation, Commissioner. My instructions are that the employer no longer wishes to be a party to the agreement because of the way in which they are doing their business now is quite different to the way in which they were doing their business at the time the agreement was negotiated. The numbers of employees that are covered by the agreement have changed and my client is concerned that they will be caught up by the successive provisions of this certified agreement.

PN20

Now, I can tell the Commission that my client has met the financial obligations that are detailed in the certified agreement; there is no argument about that. And you might recall, with your assistance, that we were able to - on a previous occasion, we were able to come up with redundancy and retrenchment procedures which are also in the agreement and which my client has also dealt with as well, and again, they have no argument about that.

PN21

THE COMMISSIONER: Well, what does that mean, in terms of the people who are made redundant or in terms of pay rises for people who are still - - -

PN22

MR NELSON: The pay - they got their pay rises and they got the redundancies. There is no argument that they have - we didn't deal with those in a proper way.

PN23

THE COMMISSIONER: Well, when were they dealt with?

PN24

MR NELSON: Before the agreement was even actually put to the vote in September/October. Now, Commissioner, I say, that it is, in my most respectful submissions, that it is fundamental to the Workplace Relations Act, particularly the area relating to certification of agreement, that there has to be agreement between the parties. Now - sorry, I didn't find any case law on it but it seems to me that section 170LI which deals with this application under division 2 of the Act indicates that there needs to be agreement and my instructions are that there is no agreement to the agreement being certified.

PN25

So it would seem to me that the Commission would be acting - as it is presently constituted - would be acting ultra vires if it were to certify this agreement because there is no power. Now, the other difficulty I have is that I have got no knowledge of this vote on 4 March. My client wouldn't have been able to draw an affidavit, or swear an affidavit, to deal with that vote because they are not aware of it.

PN26

THE COMMISSIONER: Who is not aware of it? Your client is not aware of - - -

PN27

MR NELSON: My client is not aware of it. I have no instructions on it. In fact I only heard about this morning - this afternoon when I was talking to my friend and Mr Pandolfo outside. It gives me no joy, Commissioner, to come here with this refusal to certify but they are my client's instructions and that is what they want. And I indicated this, that we would be opposing certification of the agreement, at a section 99 hearing before your Honour, Senior Deputy President Acton some three weeks or so ago. And Mr Pandolfo and I in fact had a discussion about it and he thought it was best to bring the matter to the Commission to see what the Commission had to say.

PN28

I would also point out to the Commission, if I could, that this proposed agreement is due to expire on 30 June anyway so it will only really be in force for two months. As I said previously, the material - parts of it - relating to redundancies and salary increases have been put in place. My client generally doesn't know what shape their business is going to be in and that is at the heart of their refusal to be a party to this agreement.

PN29

THE COMMISSIONER: Why has there been such a radical change between September/October and January/February?

PN30

MR NELSON: Major change in the management - of the structure of the business. You might recall the last time that they were before you that Mr Mulford was the general manager of the business. He is no longer here and it is being run by a Mr Ting who is a Singaporian person who is an employee of the parent company. My client literally doesn't know what premises they are going to be in in the next couple of months. They have got several new arrangements with mobile phone suppliers which have to be put in place. They don't know how those service centres will be structured.

PN31

So there has been quite a radical change, quite apart from anything else, as I say. There has also been - there is 10 less employees now than there were at the time of the vote in November which may be a way out of the situation. The numbers are less now than they were when the vote was taken because - I have to say that it would be my submission that we are so far out of time for lodgment of these document that circumstances may have changed. The other matter that I need to raise is that my friend said that we hadn't provided the signed documentation to the union.

PN32

Well, there is no onus, as I read the Act, on either party to provide that documentation. Mr Pandolfo of the union could just have easily have served the documentation on us and we could have dealt with it much more expeditiously. In fact I think the matter was only raised in early March or late February. If the Commission pleases.

PN33

THE COMMISSIONER: Ms Wild?

PN34

MS WILD: Thanks, Commissioner, in relation to the changes that are said to take place, it is my instructions that that business is still going to be operating much as it has - has been in the past. I don't know if I need to get further instructions on that or evidence, or whatever, but what we would say in relation to that is that is all the more reason for the agreement to be certified. I mean, that is why the - that would provide some security for the employees at a time like - of such change. The negotiations, as I said before, I don't want to reiterate too much on what I already said, but they were done in good faith and there was an agreement reached and the document that we have provided to the Commission is one that came from the company after the discussions which shows that as under the Act there was agreement.

PN35

THE COMMISSIONER: Could you just repeat that?

PN36

MS WILD: The document that we have provided to the Commission that the union has signed is a document that came from the company as a result of discussions. It is not one that we typed up previously, or after that, they actually forwarded it to us so we could provide it on the day to the employees for the purposes of it to be voted on, and hopefully approved, which was the case. Again, I just note that while perhaps there has been a change, my instructions are - to the employees since November - perhaps that was about a 10 per cent change in the employees.

PN37

But, again, we would say, the further approval by the employees on 3 March to overcome the change of employees took place. I don't think I have got anything else to add at this stage unless you have got any questions, Commissioner.

PN38

THE COMMISSIONER: Yes, thank you. Is there anything that arises, Mr Nelson?

PN39

MR NELSON: Yes, Commissioner, my instructions are quite different in fact, that there is going to be a radical change in the way in which the workforce operates. There are going to be changes to the corporations that are involved and it is likely that there will be increases in the numbers of personnel which are way in excess of the numbers that the business currently has. It is not strictly accurate to say that we provided the document. What we did was, we typed it, that was all. It just happened to come out of my office. It was something that Mr Pandolfo and I had agreed on and in fact the changes to the size of the workforce are in the vicinity of 25 per cent. That is all I have got to say on that matter, if the Commission pleases.

PN40

THE COMMISSIONER: Yes, all right, there are a number of issues that are raised and to say that this is an extraordinary matter is quite correct. However, there is precedent in the Commission previously and I think Ms Wild alluded to it in relation to the steps in the process of enterprise bargaining. In any case I intend to reserve my decision in this matter and to fully consider it. There being nothing further, these proceedings are adjourned.

ADJOURNED INDEFINITELY [4.26pm]